<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 18, 1998.
THIS REGISTRATION STATEMENT HAS NOT BEEN MADE EFFECTIVE. INFORMATION CONTAINED
HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM 20-F
(MARK ONE)
[X] REGISTRATION STATEMENT PURSUANT TO SECTION 12(B)
OR (G) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
[_] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended:
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
for the transition period from to
COMMISSION FILE NUMBER:
TELE CENTRO SUL PARTICIPACOES S.A.
(Exact name of Registrant as specified in its charter)
TELE CENTRO SUL HOLDING COMPANY
(Translation of Registrant's name into English)
THE FEDERATIVE REPUBLIC OF BRAZIL
(Jurisdiction of incorporation or organization)
SCN-QUADRA 3, BLOCO A, 2(degrees) ANDAR, SALA 202
BRASILIA, DF, BRAZIL
(Address of principal executive offices)
SECURITIES REGISTERED OR TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE
ACT:
<TABLE>
<CAPTION>
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
------------------- -----------------------------------------
<S> <C>
Preferred Shares, without par
value.......................... New York Stock Exchange*
</TABLE>
- --------
* Not for trading, but only in connection with the listing of American
Depositary Shares, on the New York Stock Exchange.
SECURITIES REGISTERED OR TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE
ACT: None
SECURITIES FOR WHICH THERE IS A REPORTING OBLIGATION PURSUANT TO SECTION 15(D)
OF THE ACT: None
Indicate the number of outstanding shares of each of the issuer's classes of
capital or common stock as of the close of the last fiscal year covered by
this Registration Statement: None
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days.
Yes No X
Indicate by check mark which financial statement item the registrant has
elected to follow.
Item 17 Item 18 X
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT.
THIS PRELIMINARY REGISTRATION STATEMENT ON FORM 20-F HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") BUT HAS NOT BEEN DECLARED
EFFECTIVE AND IS SUBJECT TO COMMENT BY THE COMMISSION.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
PRESENTATION OF INFORMATION................................... ii
GLOSSARY OF TERMS............................................. vi
EXCHANGE RATES................................................ ix
PART I
ITEM 1. Description of Business....................................... 1
ITEM 2. Description of Property....................................... 32
ITEM 3. Legal Proceedings............................................. 32
ITEM 4. Control of Registrant......................................... 33
ITEM 5. Nature of Trading Market...................................... 34
ITEM 6. Exchange Controls and Other Limitations Affecting Security
Holders....................................................... 37
ITEM 7. Taxation...................................................... 38
ITEM 8. Selected Financial Data....................................... 43
ITEM 9. Management's Discussion and Analysis of Financial Condition
and Results of Operations..................................... 47
ITEM 9A. Quantitative and Qualitative Disclosures about Market Risk.... 60
ITEM 10. Directors and Officers of Registrant.......................... 61
ITEM 11. Compensation of Directors and Officers........................ 64
ITEM 12. Options to Purchase Securities from Registrant or
Subsidiaries.................................................. 64
ITEM 13. Interest of Management in Certain Transactions................ 64
PART II
ITEM 14. Description of Securities to be Registered.................... 65
PART III
ITEM 15. Defaults upon Senior Securities............................... 77
ITEM 16. Changes in Securities and Changes in Security for Registered
Securities.................................................... 77
PART IV
ITEM 17. Consolidated Financial Statements............................. 78
ITEM 18. Consolidated Financial Statements............................. 78
ITEM 19. Consolidated Financial Statements and Exhibits................ 78
</TABLE>
i
<PAGE>
PRESENTATION OF INFORMATION
OVERVIEW
Tele Centro Sul Participacoes S.A. (the "Registrant"), a corporation
organized under the laws of the Federative Republic of Brazil ("Brazil"), was
formed upon the reorganization of Telecomunicacoes Brasileiras S.A.--Telebras
("Telebras"), a corporation organized under the laws of Brazil that, together
with its operating subsidiaries (the "Telebras System"), was the primary
supplier of public telecommunications services in Brazil. On May 22, 1998, the
shareholders of Telebras approved the restructuring of the Telebras System to
form, in addition to Telebras, twelve new telecommunications companies (the
"New Holding Companies") by means of a procedure under Brazilian corporate law
called cisao or "split-up". The New Holding Companies were allocated virtually
all the assets and liabilities of Telebras, including the shares held by
Telebras of the operating companies of the Telebras System. The New Holding
Companies, together with their respective subsidiaries, comprise (a) three
regional fixed-line operators, (b) eight regional cellular operators and (c)
one national long-distance carrier. The separation of the Telebras System into
the New Holding Companies and their respective subsidiaries is referred to in
this Registration Statement on Form 20-F (the "Registration Statement") as the
"Breakup" of Telebras. Prior to the Breakup, Telebras, through its operating
subsidiaries, was the primary supplier of public telecommunications services
in Brazil. See "Description of Business--Background" and "--The Company."
The Registrant is one of the New Holding Companies formed upon the Breakup
of Telebras. In the Breakup, all of the share capital held by Telebras in
Companhia Telefonica Melhoramento e Resistencia ("CTMR"), Telecomunicacoes de
Santa Catarina S.A. ("Telesc"), Telecomunicacoes do Parana S.A. ("Telepar"),
Telecomunicacoes do Mato Grosso do Sul S.A. ("Telems"), Telecomunicacoes do
Mato Grosso S.A. ("Telemat"), Telecomunicacoes de Brasilia S.A.
("Telebrasilia"), Telecomunicacoes de Goias S.A. ("Telegoias"),
Telecomunicacoes de Rondonia S.A. ("Teleron") and Telecomunicacoes do Acre
S.A. ("Teleacre") (together, the "Subsidiaries") was transferred to the
Registrant. A substantial part of the Registrant's assets is comprised of
share capital of its subsidiaries. The Registrant relies largely on dividends
from its subsidiaries to meet its need for cash, including for the payment of
dividends to its shareholders. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Liquidity and Capital
Resources." The Company, as defined below, is the principal provider of fixed-
line public telecommunications services in the western, central and southern
regions of Brazil.
As used herein, the "Company" refers to the Registrant and its consolidated
Subsidiaries. Prior to January 1, 1998, each Subsidiary also had a cellular
telephone business. In preparation for the Breakup of Telebras, on January 30,
1998, the cellular telephone businesses of the Subsidiaries were "spun off"
effective January 1, 1998 to newly formed cellular companies. See "Description
of Business--Background" and "--The Company."
PRESENTATION OF FINANCIAL INFORMATION
FINANCIAL STATEMENTS AND MINORITY INTERESTS
The audited consolidated balance sheets included herein as of December 31,
1996 and 1997 and the related consolidated statements of income, cash flow and
changes in shareholders' equity for each of the years ended December 31, 1995,
1996 and 1997, (including the notes thereto, the "Consolidated Financial
Statements") are the consolidated financial statements of the Registrant and
the Subsidiaries. The portion of the consolidated equity and net income of the
Subsidiaries attributable to shareholders of the Subsidiaries other than
Telebras at December 31, 1996 and 1997, and for each of the years in the
three-year period ended December 31, 1997 is reflected as "minority interests"
in the Consolidated Financial Statements. At December 31, 1997, such minority
shareholders directly and indirectly owned the percentages shown in the table
below of the share capital of the Subsidiaries, respectively. Substantially
all such share capital is comprised of preferred shares originally issued
ii
<PAGE>
from time to time by the Subsidiaries in connection with such Subsidiaries'
auto-financing activities. The consideration paid for such preferred shares
was the higher of market or book value at the time of issuance, for shares
issued after August 1996, and book value for shares issued prior to August
1996. A secondary trading market has developed in such preferred shares in
which institutional and other investors participate. For a discussion of such
auto-financing activities, see "Description of Business--Rates--Local
Services."
<TABLE>
<CAPTION>
% OF SHARE % OF VOTING
CAPITAL OWNED STOCK OWNED BY
BY MINORITY MINORITY
STATE SUBSIDIARY SHAREHOLDERS(1) SHAREHOLDERS(1)
- ----- ---------- --------------- ---------------
<S> <C> <C> <C>
Acre.................... Telecomunicacoes do Acre S.A.--Teleacre 6.02% 1.32%
Rondonia................ Telecomunicacoes de Rondonia S.A.--Teleron 8.70 2.69
Goias/Tocantins......... Telecomunicacoes de Goias S.A.--Telegoias 16.23 19.64
Distrito Federal........ Telecomunicacoes de Brasilia
S.A.--Telebrasilia 18.60 19.13
Mato Grosso............. Telecomunicacoes do Mato Grosso
S.A.--Telemat 8.13 1.60
Mato Grosso do Sul...... Telecomunicacoes do Mato Grosso
do Sul S.A.--Telems 3.99 1.10
Parana.................. Telecomunicacoes do Parana S.A.--Telepar 32.69 18.02
Santa Catarina.......... Telecomunicacoes de Santa Catarina S.A.--Telesc 17.01 8.60
Rio Grande do Sul....... Companhia Telefonica Melhoramento e 21.44 18.68
Resistencia S.A.--CTMR(2)
</TABLE>
- --------
(1) Includes both direct and indirect ownership.
(2) CTMR serves a small area in the state of Rio Grande do Sul which includes
the cities of Pelotas, Capao do Leao, Morro Redondo and Turucu.
The Consolidated Financial Statements present the fixed-line
telecommunications business of the Subsidiaries as the continuing operations
and the cellular telephone business as discontinued operations for all
periods. The assets and liabilities of the cellular telephone business are
presented as net assets of discontinued operations.
FORMATION OF REGISTRANT
The separation of the fixed and cellular telecommunications businesses and
the formation of the Registrant has been accounted as a reorganization of
entities under common control in a manner similar to a pooling of interests.
The assets and liabilities of the cellular telephone business were transferred
from the Subsidiaries at their indexed historical cost. The Consolidated
Financial Statements are not necessarily indicative of the financial position
and results of operations that would have occurred for the three-year period
ended December 31, 1997 had the fixed-line telecommunications businesses of
the Subsidiaries been separate legal entities during such periods. See
"Description of Business--Background," "--The Company" and Notes 1, 2 and 28
to the Consolidated Financial Statements.
At the May 22, 1998 Telebras shareholders' meeting, the shareholders
approved a specific structure for the shareholders' equity of each New Holding
Company, which included an allocation of a portion of the retained earnings of
Telebras. In this manner, the balances of capital, reserves and retained
earnings, together with the corresponding assets and liabilities, for the
formation of Tele Centro Sul Participacoes S.A. were established. Telebras
retained within its own shareholders' equity sufficient retained earnings from
which to pay certain dividends and other amounts. Telebras allocated to each
New Holding Company the balance of its retained earnings in proportion to the
total net assets allocated to each such Company. This value of allocated
retained earnings does not represent the historical retained earnings of the
New Holding Companies and resulted in an increase of R$204,689,000 in relation
to the Company's historical retained earnings. See Note 28 to the Consolidated
Financial Statements. Allocated retained earnings and future retained earnings
will be the basis from which future dividends will be payable.
iii
<PAGE>
Prior to December 31, 1997 cash and certain non-specific debt of the
cellular telecommunications business could not be segregated from the
Subsidiaries. Accordingly, these amounts are included in the financial
statements for periods ended before January 1, 1998. As a result, certain
interest income and expense relating to the cellular telecommunications
business could not be identified and, consequently, income from discontinued
operations is presented before unallocated interest income (expense) and
income tax expense. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Results of Operations for the years ended
December 31, 1995, 1996 and 1997--Allocated and unallocated interest expense
and unallocated interest income."
In connection with the formation of the Registrant, certain assets of
Telebras in addition to its interests in the Subsidiaries were spun off to the
Registrant. Such assets comprised cash and other current assets, noncurrent
assets and certain investments. See Note 28 to the Consolidated Financial
Statements, which includes a consolidated balance sheet of the Registrant
reflecting all the assets and liabilities spun off to the Registrant as of
February 28, 1998. The Registrant received R$5,292.9 million of Telebras
assets, including R$71.0 million in cash and cash equivalents. A substantial
amount of such assets (principally investment in subsidiaries) is eliminated
upon consolidation.
EFFECTS OF INFLATION
The Consolidated Financial Statements contained herein were prepared in
accordance with generally accepted accounting principles in Brazil ("Brazilian
GAAP") and are presented in Brazilian reais. Pursuant to Brazilian GAAP, the
Financial Statements and the other financial information presented herein
recognize certain effects of changes in the purchasing power of Brazilian
currency due to inflation and, unless otherwise specified, have been indexed
and expressed in constant reais of December 31, 1997 purchasing power by using
the daily changes or the monthly average values of the Unidade Fiscal de
Referencia (the Tax Reference Unit or the "UFIR") through December 31, 1995.
Until December 31, 1995, the relevant inflation index selected by the CVM
and the one used for the constant currency method under Brazilian GAAP was the
UFIR. Effective January 1, 1996, the Comissao de Valores Mobiliarios (the
Brazilian Securities Commission or "CVM"), no longer requires Brazilian
companies to restate their financial statements for reporting purposes in
constant currency by indexing historical amounts using the UFIR. Restatement
in constant currency is now optional and any general price index may be used.
The Brazilian Institute of Accountants has recommended that the Indice Geral
de Precos--Mercado (the General Prices Index-Market or the "IGP-M") be used
for this purpose. The Company's management believes that the IGP-M is the most
appropriate measure of the general price inflation in Brazil and has elected
the IGP-M for purposes of preparing its financial statements in accordance
with the constant currency method as of January 1, 1996. See Note 2 to the
Consolidated Financial Statements.
In July 1997, the three-year cumulative inflation rate for Brazil fell below
100%; however, for accounting purposes, the constant currency method has
continued to be applied. The Brazilian Institute of Accountants has not yet
published definitive rules regarding when the constant currency method of
accounting may no longer be used to prepare the Consolidated Financial
Statements. If the Brazilian Institute of Accountants determines that the
constant currency method may no longer be used to prepare the Consolidated
Financial Statements beginning January 1, 1998, the restated balances of
nonmonetary assets and liabilities of the Company as of December 31, 1997 will
become the new basis for accounting, and income statement items will no longer
be restated for inflation.
CURRENCY TRANSLATIONS
All references herein to (i) the "real," "reais" or "R$" are to Brazilian
reais (plural) and to the Brazilian real (singular), the official currency of
Brazil and (ii) "U.S. dollars," "dollars" or "US$" are to United States
dollars. As of July 1, 1994, the denomination of the Brazilian currency unit
was changed to the real from the cruzeiro real (each real being equal to 2,750
cruzeiros reais at such time). All amounts in cruzeiros reais have been
restated in reais in this Registration Statement. Certain amounts herein may
not sum due to rounding.
iv
<PAGE>
This Registration Statement contains translations of certain real amounts
into U.S. dollars solely for the convenience of the reader. These translations
should not be construed as representations that the real amounts actually
represent such U.S. dollar amounts or could be or could have been converted
into U.S. dollars at the rate indicated. Unless otherwise indicated, such U.S.
dollar amounts have been translated from reais at the commercial buying rate
for the purchase of U.S. dollars (the "Commercial Market Rate") published by
Banco Central do Brasil (the "Central Bank of Brazil") for December 31, 1997,
which was 1.1164 to US$1.00. The noon buying rate in New York City for cable
transfers in reais as certified by the Federal Reserve Bank of New York has
not been consistently reported for Brazilian currency during the periods for
which data are presented in this Registration Statement. See "Exchange Rates"
for information regarding rates of exchange.
MARKET INFORMATION
Upon the Breakup of Telebras, holders of common and preferred Telebras
shares ("Telebras Common Shares" and "Telebras Preferred Shares" and,
together, "Telebras Shares") were deemed under Brazilian law to own, in
addition to such Telebras Shares, one common or preferred share, as
applicable, of each New Holding Company for each such Telebras Share held by
them. Following the Breakup, the Telebras Common Shares and the common shares
of the New Holding Companies have been traded as a unit on the Bolsa de
Valores de Sao Paulo (the "Sao Paulo Stock Exchange"), the Bolsa de Valores do
Rio de Janeiro (the "Rio de Janeiro Stock Exchange") and the seven other
Brazilian stock exchanges (together with the Sao Paulo Stock Exchange and the
Rio de Janeiro Stock Exchange, the "Brazilian Stock Exchanges"). Similarly,
the Telebras Preferred Shares and the preferred shares of the New Holding
Companies have been traded as a unit on the Brazilian Stock Exchanges.
Telebras American Depositary Shares ("Telebras ADS"), each originally
representing redeemed ownership of 1,000 Telebras Preferred Shares, have
continued to trade on the New York Stock Exchange, Inc. (the "NYSE"), except
that since the Breakup, each Telebras ADS has represented 1,000 Telebras
Preferred Shares and deemed ownership of 1,000 preferred shares of each of the
New Holding Companies. It is expected that during the third quarter of 1998,
the common shares and preferred shares of each New Holding Company will
commence trading separately on the Brazilian Stock Exchanges and American
Depositary Shares representing preferred shares of each New Holding Company
will be issued and will commence trading separately on the NYSE. See "Nature
of Trading Market" and "Description of Securities to be Registered--
Description of American Depositary Receipts in respect of Preferred Shares."
References herein to the "Preferred Shares" and "Common Shares" are to the
preferred shares and common shares, respectively, of the Registrant.
References to the American Depositary Shares or "ADSs" are to American
Depositary Shares, each representing 1,000 Preferred Shares. The ADSs will be
evidenced by American Depositary Receipts ("ADRs").
v
<PAGE>
GLOSSARY OF TERMS
The following explanations are not intended as technical definitions, but to
assist the general reader to understand certain terms as used in this
Registration Statement.
Access charge: Amount paid per minute charged by network operators for the
use of their network by other network operators. Also known as an
"interconnection charge" or "network usage charge".
Access gates: The points of interface between the network equipment (either
dedicated or switched) and the transmission media that connect network
equipment to the end user. The quantity of service is directly related to the
quantity of network access gates.
AMPS (Advanced Mobile Phone Service): An analog cellular telephone service
standard utilizing the 850 MHz band, in use in North America, parts of South
America, Australia and various other areas.
Analog: A mode of transmission or switching which is not digital, e.g., the
representation of voice, video or other modulated electrical audio signals
which are not in digital form.
Analog network: A network using analog technology with circuit switching,
capable of connecting one user with all the users, but with limited
transmission capacity.
ATM (Asynchronous Transfer Mode): A broadband switching technology that
permits the use of one network for different kinds of information (e.g.,
voice, data and video).
Automatic international roaming: A service which permits a subscriber to use
his or her cellular phone on a foreign cellular operator's network. The
subscriber may receive calls made to the subscriber's regular cellular number
(such calls are "automatically" passed to the foreign operator's network).
Band A Operator: A former Telebras cellular operating subsidiary that has
been granted a concession to provide cellular telecommunications services in a
particular area within a radio spectrum frequency range referred to by Anatel
as "Band A".
Band B Operator: A cellular operator that has been granted a concession to
provide cellular telecommunications services in a particular area within a
radio spectrum frequency range referred to by Anatel as "Band B".
Base station: In cellular mobile telecommunications, a radio
transmitter/receiver that maintains communications with the cellular
telephones within a given cell. Each base station in turn is interconnected
with other base stations and with the public switched telephone network.
Broadband services: Services characterized by a transmission speed of 2
Mbit/s or more. According to international standards, these services are
divided into two categories: (i) Interactive services, including
videotelephone/videoconferencing (both point-to-point and multipoint);
videomonitoring; interconnection of local networks; file transfer; CAD;
highspeed fax; e-mail for moving images or mixed documents; broadband
videotext; video on demand; retrieval of sound programs or fixed and moving
images; and (ii) Broadcast services, such as sound programs, television
programs (including high-definition TV and pay TV) and selective document
acquisition.
CATV (Cable television): Cable or fiber-based distribution of TV programs.
CDMA (Code Division Multiple Access): A standard of digital cellular
technology.
Cell: The geographic area covered by a single base station in a cellular
mobile phone system.
Cell splitting: The process of dividing cells into smaller coverage areas by
reducing their power output and the antenna height of the station transmitter.
Cell splitting increases capacity in a particular area by allowing for the
further reuse of frequencies by a mobile communications system.
vi
<PAGE>
Cellular service: A mobile telephone service provided by means of a network
of interconnected low-powered base stations, each of which covers one small
geographic cell within the total cellular system service area.
Channel: One of a number of discrete frequency ranges utilized by a base
station.
Digital: A mode of representing a physical variable such as speech using
digits 0 and 1 only. The digits are transmitted in binary form as a series of
pulses. Digital networks allow for higher capacity and higher flexibility
through the use of computer-related technology for the transmission and
manipulation of telephone calls. Digital systems offer lower noise
interference and can incorporate encryption as a protection from external
interference.
Digital penetration: The substitution of equipment capable of transmitting
digital signals for equipment limited to analog transmission.
Exchange: See Switch.
Frame relay: A data transmission service using fast protocols based on
direct use of transmission lines.
Internet: A collection of interconnected networks spanning the entire world,
including university, corporate, government and research networks from around
the globe. These networks all use the IP (Internet Protocol) communications
protocol.
ISDN (Integrated Services Digital Network): A system in which several
services (e.g., speech and data) may be simultaneously transmitted end-to-end
in digital form.
Leased high-speed data communication: The digital exchange of information at
speeds exceeding 64Kbps transmitted through mediums that are leased to users
for their exclusive use.
Local loop: The system used to connect the subscriber to the nearest switch.
It generally consists of a pair of copper wires, but may also employ fiber-
optic circuits, microwave links or other technologies.
Manual international roaming: A service that permits a subscriber to use his
or her cellular phone on a foreign cellular operator's network. The subscriber
may only receive calls made to a temporary number issued to the subscriber by
the foreign operator for use while roaming.
Microcells: A small cell covered by a low-power base station. Microcells can
cover small areas such as a single building.
Network: An interconnected collection of elements. In a telephone network,
these consist of switches connected to each other and to customer equipment.
The transmission equipment may be based on fiber optic or metallic cable or
point-to-point radio connections.
Network usage charge: Amount paid per minute charged by network operators
for the use of their network by other network operators. Also known as an
"access charge" or "interconnection charge."
Optical fiber: A transmission medium which permits extremely high
capacities. It consists of a thin strand of glass that provides a pathway
along which waves of light can travel for telecommunications purposes.
Packet-switched data communication services: Data services based on
parceling or breaking the data stream into packets and switching the
individual packets. Information transmitted is segmented into cells of a
standardized length, which are then transmitted independently of one another,
allowing maximization of available capacity and usage of a single transmission
path for multiple communications. The cells are then reassembled upon reaching
their destination.
vii
<PAGE>
PBX (Private Branch Exchange): Telephone switchboard for private use, but
linked to the national telephone network.
Penetration: The measurement of the take-up of services. As of any date, the
penetration is calculated by dividing the number of subscribers by the
population to which the service is available and multiplying the quotient by
100.
Private leased circuits: Voice, data or image transmission mediums leased to
users for their exclusive use.
PSTN (Public Switched Telephone Network): The public telephone network that
delivers basic telephone service and, in certain circumstances, more advanced
services.
Repeaters: A device that amplifies an input signal for retransmission.
Roaming: A function that enables cellular subscribers to use their cellular
phone on networks of operators other than the one with which they signed their
initial contract.
Satellite services: Satellites are used, among other things, for links with
countries that cannot be reached by cable or to provide an alternative to
cable and to form closed user networks.
SDH (Synchronous Digital Hierarchy): A hierarchy set of digital transport
structures, standardized for the transport of suitably adapted payloads over
physical transmission networks.
Sectorization: The process of dividing cells into sectors by using
directional antennae at the base station. Sectorization reduces co-channel
interference which permits smaller cells and increases network capacity.
Switch: These are used to set up and route telephone calls either to the
number called or to the next switch along the path. They may also record
information for billing and control purposes.
TDMA (Time Division Multiple Access): A standard of digital cellular
technology.
Universal service: The obligation to supply basic service to all users
throughout the national territory at reasonable prices.
Value Added Services: Value Added Services provide a higher level of
functionality than the basic transmission services offered by a
telecommunications network.
viii
<PAGE>
EXCHANGE RATES
There are two legal foreign exchange markets in Brazil--the commercial rate
exchange market (the "Commercial Market") and the floating rate exchange
market (the "Floating Market"). The Commercial Market is reserved primarily
for foreign trade transactions and transactions that generally require prior
approval from Brazilian monetary authorities, such as the purchase and sale of
registered investments by foreign persons and related remittances of funds
abroad. Purchases and sales of foreign exchange in the Commercial Market may
be carried out only through a financial institution in Brazil authorized to
buy and sell currency in that market. As used herein, the "Commercial Market
Rate" for any day is the commercial selling rate for Brazilian currency into
U.S. dollars, as reported by the Central Bank of Brazil. As used herein, the
"Floating Market Rate" is the prevailing selling rate for Brazilian currency
into U.S. dollars which applies to transactions to which the Commercial Market
Rate does not apply, as reported by the Central Bank of Brazil. Prior to the
implementation of the Real Plan, the Commercial Market Rate and the Floating
Market Rate differed significantly at times. Since the introduction of the
real, the two rates have not differed significantly, although there can be no
assurance that there will not be significant differences between the two rates
in the future. Both the Commercial Market Rate and the Floating Market Rate
are freely negotiated but are strongly influenced by the Central Bank of
Brazil.
On July 1, 1994 the real replaced the cruzeiro real as the unit of Brazilian
currency, with each real being equal to 2,750 cruzeiros reais. The issuance of
reais was initially subject to quantitative limits backed by a corresponding
amount of U.S. dollars in resources, but the Federal Government subsequently
expanded those quantitative limits and allowed the real to float, with parity
between the real and the U.S. dollar (R$1.00 to US$1.00) as a ceiling. On
March 6, 1995, the Central Bank of Brazil announced that it would intervene in
the market and buy or sell U.S. dollars, and established a trading band (faixa
de flutuacao) for the Commercial Market Rate (which is defined through
auction) within which the exchange rate between the real and the U.S. dollar
could fluctuate. The Central Bank of Brazil initially set the band with a
floor of R$0.86 per US$1.00 and a ceiling of R$0.90 per US$1.00 and provided
that, from and after May 2, 1995, the band would fluctuate between R$0.86 and
R$0.98 per US$1.00. Shortly thereafter, the Central Bank of Brazil issued a
new directive providing that the band would be between R$0.88 and R$0.93 per
US$1.00. On June 22, 1995, the Central Bank of Brazil issued another directive
providing that the band would be between R$0.91 and R$0.99 per US$1.00 and
subsequently reset the band on January 30, 1996 to between R$0.97 and R$1.06
per US$1.00. Upon resetting the band on January 30, 1996, the Central Bank of
Brazil adjusted the exchange rate within such band on a number of occasions,
generally in increments of R$0.001, by means of buying and selling U.S.
dollars in electronic auctions. On February 18, 1997, the band was reset by
the Central Bank of Brazil to float between R$1.05 and R$1.14 per US$1.00. On
May 5, 1998, the band was reset by the Central Bank of Brazil to float between
R$1.12 to R$1.22 per US$1.00. As of September 11, 1998, the trading band has
not been reset by the Central Bank of Brazil. There can be no assurance that
the band will not be altered in the future or that the real will maintain its
current exchange rate in future periods.
The following table sets forth the Commercial Market Rate expressed in reais
per U.S. dollar for the periods and dates indicated. Prior to July 14, 1994
the Federal Reserve Bank of New York did not publish a noon buying rate for
customs purposes in the City of New York for cable transfers in the Brazilian
real and the predecessor currencies (the "Noon Buying Rate").
<TABLE>
<CAPTION>
COMMERCIAL MARKET RATE:
NOMINAL REAIS PER US$1.00(1)
-----------------------------------
YEAR ENDED DECEMBER 31,(1) LOW HIGH AVERAGE(2) PERIOD-END
- -------------------------- ------ ------ ---------- ----------
<S> <C> <C> <C> <C>
1993....................................... 0.0044 0.1186 0.0369 0.1186
1994....................................... 0.1204 0.9815 0.6754 0.8490
1995....................................... 0.8340 0.9726 0.9227 0.9726
1996....................................... 0.9726 1.0394 1.0080 1.0394
1997....................................... 1.0395 1.1164 1.0555 1.1164(3)
1998 (through September 11)................ 1.1165 1.1793 1.1519 1.1793
</TABLE>
- --------
Source: Central Bank of Brazil
(1) Amounts expressed in nominal reais have been translated from the
predecessor Brazilian currencies in effect during the relevant period at
the rates of exchange at the times the successor currencies became the
lawful currency of Brazil.
(2) Represents the average of the month-end exchange rates during the relevant
period.
(3) The Noon Buying Rate on December 31, 1997 was R$1.1165 per U.S. dollar.
ix
<PAGE>
PART I
ITEM 1: DESCRIPTION OF BUSINESS
BACKGROUND
TELEBRAS AND THE TELEBRAS SYSTEM
Until 1972, telephone services in Brazil were provided by more than 900
independent companies, which supplied non-integrated basic telephone services.
Telebras was incorporated on November 9, 1972, pursuant to special
legislation, for the principal purposes of (i) acting as a holding company for
operating companies providing public telecommunications services in Brazil and
(ii) implementing the policies of the federal government of Brazil (the
"Federal Government") in the modernization and expansion of the Brazilian
telecommunications system. Between 1972 and 1975, Telebras, through its
subsidiaries, acquired almost all the other telephone companies in Brazil.
Telebras and its operating subsidiaries are referred to collectively herein as
the "Telebras System." Only four operating companies remained outside the
Telebras System at December 31, 1997, representing approximately 9% of all
lines in service in Brazil at that date. Telebras is controlled by the Federal
Government and the operations of the Telebras System are subject to regulation
by the Federal Government. The operating subsidiaries of Telebras were
controlled by the Federal Government until August 4, 1998. See "--Regulatory
Reform and Privatization."
At December 31, 1997, Telebras, through 28 operating subsidiaries, was the
primary supplier of public telecommunications services in Brazil. Empresa
Brasileira de Telecomunicacoes S.A.--Embratel ("Embratel"), a subsidiary of
Telebras, owned and operated all of the interstate and international telephone
transmission facilities in Brazil. Through the other 27 subsidiaries, the
Telebras System was the primary provider of local and intrastate
telecommunications services and the leading provider of cellular mobile
telephone services. The Telebras System also provided telecommunications-
related services such as data communication, sound and image transmission and
other value-added services. On January 30, 1998, each of the operating
subsidiaries other than Embratel and Companhia Telefonica da Borda do Campo--
CTBC spun off its cellular telephone operations into separate companies.
In 1997, Telebras was the second largest company in Brazil as measured by
gross revenues of R$20.7 billion.
REGULATORY REFORM AND PRIVATIZATION
Beginning in 1995, the Federal Government undertook a comprehensive reform
of regulation of the telecommunications industry. In August 1995, the federal
Constitution was amended to permit the Government to grant concessions to
private companies to provide telecommunications services. In July 1997, the
federal Congress adopted Law No. 9,472 of July 16, 1997, the Lei Geral de
Telecomunicacoes (the "Telecommunications Law"), which provided for the
establishment of a new regulatory framework, the introduction of competition
and the privatization of the Telebras System. The Telecommunications Law
established an independent regulatory agency called Agencia Nacional de
Telecomunicacoes ("Anatel"), which has begun to adopt a series of regulatory
enactments that implement the provisions of the Telecommunications Law
(together with the regulations, decrees, orders and plans issued by the
President of Brazil on telecommunications, the "Telecommunications
Regulations"). See "--Regulation of the Brazilian Telecommunications
Industry."
On May 22, 1998, in preparation for the privatization, the Telebras System
was restructured to form, in addition to Telebras, the twelve New Holding
Companies. Virtually all the assets and liabilities of Telebras were allocated
to the New Holding Companies, which, together with their respective
subsidiaries, now comprise (a) three regional fixed-line operators (including
the Company), (b) eight regional cellular operators and (c) one domestic and
international long-distance operator. Prior to the Breakup of the Telebras
System, Embratel provided all interstate telephone service and the other
subsidiaries of Telebras provided fixed-line and cellular service in their
respective territories, which, subject to limited exceptions, corresponded to
the separate Brazilian states. Following the Breakup, each of the eight
cellular operators provides cellular telephone service on Band A in one of
eight regions into which Brazil has been divided for purposes of cellular
telephone service and each of the three fixed-line operators provides local
fixed-line telephone service and intra-regional long-distance fixed-line
telephone service in one of three regions into which Brazil has been divided
for the purposes of fixed-line telephone service.
1
<PAGE>
On July 29, 1998, the Federal Government sold to twelve buyers (the "New
Controlling Shareholders") its rights to receive shares of the twelve New
Holding Companies upon the distribution of such shares. The total
consideration to be paid to the Federal Government for the twelve New Holding
Companies is R$22.1 billion. In connection with this sale, the Federal
Government assigned to the New Controlling Shareholders substantially all its
economic and voting rights with respect to the New Holding Companies and, as a
consequence, the New Controlling Shareholders now control the New Holding
Companies. Following the distribution of the shares of the New Holding
Companies, Telebras will be delisted from the New York Exchange and
liquidated.
The New Controlling Shareholder of the Registrant is Solpart Participacoes
S.A. ("Solpart"), a company owned by Techold Participacoes S.A. (19%), STET
International Netherlands N.V. (19%) and Timepart Participacoes Ltda. (62%).
For a description of the business activities of the shareholders of Solpart,
see "Control of Registrant." Solpart agreed to pay R$2.07 billion for the
Federal Government's stake in the Registrant, R$828 million of which was paid
on August 3, 1998 and the remainder of which will be paid in two equal
installments over the next two years. The entire proceeds of the sale of the
Federal Government's stake in the Registrant will be retained by the Federal
Government.
On August 20, 1998, Brazil's Minister of Communications determined that
Telebras would be dissolved and liquidated. The Minister announced that
Telebras will prepare, within the next twelve months, a liquidation plan to be
submitted to a shareholders' meeting convened to approve the dissolution of
Telebras and its subsequent liquidation.
The adoption of the Telecommunications Law and the Telecommunications
Regulations has led, and the privatization of the Telebras System will lead,
to sweeping changes in the operating, regulatory and competitive environment
for Brazilian telecommunications. The changes include (a) the establishment of
an independent regulator and the development of comprehensive regulation of
the telecommunications sector, (b) the Breakup of Telebras, (c) the sale of a
controlling interest in the Registrant to one or more new investors and (d)
the introduction of competition in the provision of all telecommunications
services. All of these developments will materially affect the Company and the
other New Holding Companies, and the Company cannot predict the effects of
these changes on its business, financial condition, results of operations or
prospects. The extensive changes in the structure and regulation of the
Brazilian telecommunications industry must also be carefully considered in
reviewing historical information and in evaluating the future financial and
operating performance of the Company.
THE COMPANY
The Registrant is one of the New Holding Companies formed upon the Breakup
of Telebras. It owns a controlling interest in nine providers of fixed-line
public telecommunications services in the western, central and southern
regions of Brazil. The nine consolidated subsidiaries of the Registrant are
listed in the chart below (the "Subsidiaries" or, individually, a
"Subsidiary"), along with the state in which they are located and the
percentage of share capital and voting stock of each subsidiary owned by the
Registrant at December 31, 1997. At December 31, 1997, the Company owned 80.0%
of the share capital and 85.7% of the voting stock of its Subsidiaries. The
Company also owns 8% of the voting capital of Companhia Riograndense de
Telecomunicacoes--CRT, the recently privatized fixed-line telecommunications
company serving the majority of the state of Rio Grande do Sul. The minority
interests in the Company are held by pension funds sponsored by public
companies, regional development funds, mutual funds and individuals who
obtained shares in the Company pursuant to the prior system of "auto-
financing" in which each new customer was required to invest in shares of
Telebras or its subsidiaries. For a discussion of auto-financing, see "--
Rates--Local Services." The shares of Telepar and Telebrasilia are listed on
the Brazilian Stock Exchanges. The shares of all the other Subsidiaries are
traded in Brazil on the over-the-counter market.
2
<PAGE>
<TABLE>
<CAPTION>
% OF SHARE % OF
CAPITAL VOTING
OWNED STOCK
BY OWNED BY
STATE SUBSIDIARY REGISTRANT REGISTRANT
- ----- ---------- ---------- ----------
<S> <C> <C> <C>
Acre.................... Telecomunicacoes do Acre S.A.--Teleacre 93.98% 98.68%
Rondonia................ Telecomunicacoes de Rondonia S.A.--Teleron 91.30 97.31
Goias/Tocantins......... Telecomunicacoes de Goias S.A.--Telegoias 83.77 80.36
Distrito Federal........ Telecomunicacoes de Brasilia 81.40 80.87
S.A.--Telebrasilia
Mato Grosso............. Telecomunicacoes do Mato Grosso 91.87 98.40
S.A.--Telemat
Mato Grosso do Sul...... Telecomunicacoes do Mato Grosso 96.01 98.90
do Sul S.A.--Telems
Parana.................. Telecomunicacoes do Parana S.A.--Telepar 67.31 81.98
Santa Catarina.......... Telecomunicacoes de Santa Catarina S.A.--Telesc 82.99 91.40
Rio Grande do Sul(1).... Companhia Telefonica Melhoramento e 78.56 81.32
Resistencia--CTMR
</TABLE>
- --------
(1) CTMR serves a small area in the state of Rio Grande do Sul which includes
the cities of Pelotas, Capao do Leao, Morro Redondo and Turucu.
The Company provides public fixed-line telecommunications services pursuant
to concessions granted to the Subsidiaries by the Federal Government (the
"Concessions"). Each Concession will expire on December 31, 2005 and may be
renewed for a further term of 20 years if the Company meets certain
obligations set forth in the Concessions. The Concessions may also be revoked
by Anatel prior to 2005 under certain circumstances. See "--Regulation of the
Brazilian Telecommunications Industry--Obligations of Telecommunications
Companies." If the Company elects to renew a Subsidiary's Concession, the
Subsidiary will be required to pay a biannual fee equal to 2% of its annual
net revenue from the provision of fixed-line public telecommunications
services in the Concession area for the prior year (excluding taxes and social
contributions) during the 20-year renewal period. See "--Regulation of the
Brazilian Telecommunications Industry--Concessions and Licenses."
The Concessions authorize the Company to operate in concession areas
covering a region (the "Region") consisting of eight states of Brazil, the
Federal District and a small part of Rio Grande do Sul, all located in the
western, central and southern regions of the country, as noted in the map
below, excluding: (a) small areas in the states of Goias and Mato Grosso do
Sul operated by Companhia Telefonica Brasil Central--CTBC, and (b) a small
area in the state of Parana, operated by Sercomtel S.A. CTBC and Sercomtel are
concessionaires who were not part of the Telebras System and continue to
operate independently. In the state of Rio Grande do Sul, the Company operates
only in the cities of Pelotas, Capao do Leao, Morro Redondo and Turucu through
Companhia Telefonica Melhoramento e Resistencia--CTMR. The Company also
supplies fixed-line telecommunications services in the locality of Rosario
located in the state of Bahia and in an area of 39,105 square kilometers in
the state of Minas Gerais as provided in an agreement between Telebrasilia and
Telemig, an operating subsidiary of Tele Norte Leste Participacoes S.A. The
Company expects to terminate the agreement between Telebrasilia and Telemig by
the end of 1998 and negotiations are underway to transfer ownership of the
fixed-line network and plant in the state of Minas Gerais to Tele Norte Leste
Participacoes S.A. The Company currently holds the only Concessions to provide
local fixed-line telecommunications services in the Region, but the
Telecommunications Law and Telecommunications Regulations contemplate the
introduction of limited competition in the Region following the privatization
and full competition beginning at the earliest December 31, 2001. See "--
Competition."
The Company's Concessions have been granted under the Public Regime. For a
description of the Public Regime, see "--Regulation of the Brazilian
Telecommunications Industry--Concessions and Licenses." The Company, together
with Embratel and the two other regional fixed-line companies, is one of four
companies in Brazil operating under Public Regime Concessions. As an operator
under the Public Regime, the Company is subject to certain obligations,
principally concerning the continuous provisions of service throughout the
Region ("universal service"), quality of service, and network expansion and
modernization. Anatel has the power, if
3
<PAGE>
certain of these obligations are not met, to impose penalties including
revocation of the Company's Concessions. See "--Regulation of the Brazilian
Telecommunications Industry--Obligations of Telecommunications Companies."
The Registrant's headquarters are located at SCN-Quadra 3, Bloco A,
2(degrees) Andar, Sala 202, Brasilia-DF, 70710-500, Brazil, its telephone
number is (5561)327-5552 and its fax number is (5561)327-5782.
THE REGION
The Region covers an area of 2,580,516 square kilometers, representing
30.19% of the country's total area. Its population of approximately 28 million
represents 17.3% of the total population of Brazil, and it has three
metropolitan areas with populations in excess of one million people. Per
capita income in the Region is approximately US$5,044 per year and the Region
generates approximately 18% of Brazil's gross domestic product. Approximately
24.5% of all domestic long-distance telecommunications traffic in Brazil
originates or terminates within the Region. The table below sets forth certain
key economic data for the state in which each Subsidiary operates and the
revenue contribution of each Subsidiary.
<TABLE>
<CAPTION>
% OF
% OF NET OPERATING % OF
GROSS PER REVENUE NET INCOME
POPULATION DOMESTIC CAPITA CONTRIBUTED TO CONTRIBUTED TO
PER SQUARE PRODUCT INCOME THE REGISTRANT THE REGISTRANT
STATE POPULATION KILOMETER FOR 1996 (US$) SUBSIDIARY IN 1997 IN 1997
- ----- ---------- ---------- -------- ------ ------------ -------------- --------------
<S> <C> <C> <C> <C> <C> <C> <C>
Acre 500,185 3.27 0.23 3,500 Teleacre 0.77 0.41
Rondonia 1,255,522 5.26 0.57 3,500 Teleron 2.43 0.50
Goias/Tocantins 4,783,300 7.72 2.43 4,000 Telegoias 14.73 11.83
Distrito Federal 2,900,100 498.12 2.37 6,400 Telebrasilia 16.18 20.50
Mato Grosso 2,287,846 2.52 1.09 3,700 Telemat 6.97 9.74
Mato Grosso do Sul 1,909,605 5.33 1.32 5,400 Telems 6.47 6.71
Parana 8,722,035 43.67 6.67 6,000 Telepar 32.35 23.57
Santa Catarina 4,958,339 51.91 3.29 5,200 Telesc 18.54 24.52
Rio Grande do Sul 335,036(2) -- -- -- CTMR(1) 1.56 2.22
</TABLE>
- --------
(1) CTMR serves only a small area in the state of Rio Grande do Sul which
includes the cities of Pelotas, Capao do Leao, Morro Redondo and Turucu
which represents approximately 2% of the state's GDP.
(2) Represents only those living in the CTMR Concession area.
4
<PAGE>
Set forth below is a map showing the Company's Region and the location of
the Region within Brazil.
MAP OF BRAZIL
The Company's business, financial condition, results of operations and
prospects depend in part on the performance of the Brazilian economy, in
general, and the Region, in particular. See "--Brazilian Economic
Environment."
CUSTOMER SERVICES
OVERVIEW
The services the Company provides and the composition of its revenues have
changed significantly as a result of the Telecommunications Law, the
Telecommunications Regulations and the Breakup and Privatization of the
Telebras System. The Company's current services include principally: (i) local
services, including installation charges, monthly subscription charges,
measured service and public telephones, (ii) intra-regional long-distance
service, (iii) data transmission, (iv) network services, including
interconnection and leasing of facilities, and (v) other services. The Company
does not sell, rent or otherwise provide telephone equipment such as handsets,
switchboards or other items. Currently, the interconnection revenues the
Company receives include fees paid by Embratel, cellular companies and other
telecommunications companies for the use of the Company's network. Prior to
April 1, 1998, the Company's interconnection revenues did not include any
revenues from Embratel. Rather than charging Embratel for interconnection, the
Company retained a fixed percentage of
5
<PAGE>
revenue from each interstate and international long-distance call that
originated on the Company's network. See "--Interregional and International
Service." The Company's revenues will be affected by increased competition,
the new regulatory environment and opportunities to offer a broader range of
services. See "--Competition" and "--Regulation of the Brazilian
Telecommunications Industry."
The following table breaks down the Company's revenue by type of service for
each of the years in the three-year period ended December 31, 1997. The
Company's tariffs for each category of service are described below under "--
Rates." Trends and events affecting the Company's operating revenue are
discussed under "Management's Discussion and Analysis of Financial Condition
and Results of Operations."
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------
1995 1996 1997
------- ------- -------
(IN MILLIONS OF REAIS)
<S> <C> <C> <C>
Local service..................................... 539.1 872.9 1,274.3
Intra-state long-distance service................. 545.4 600.1 517.8
Interstate long-distance service.................. 689.2 709.4 573.8
International long-distance service............... 78.1 74.4 65.3
Data transmission................................. 75.1 99.7 89.8
Network services.................................. 149.2 344.9 524.7
Other............................................. 24.9 35.9 40.5
------- ------- -------
Total............................................. 2,101.0 2,737.3 3,086.2
Taxes and discounts............................... (507.3) (657.3) (730.6)
------- ------- -------
Net operating revenue............................. 1,593.7 2,080.0 2,355.6
======= ======= =======
</TABLE>
LOCAL SERVICES
Local services include principally installation, monthly subscription,
measured service and public telephones. Measured service includes all calls
that originate and terminate within a single local area of the Region ("local
calls"). After the privatization of the Company, a new entrant will be granted
a license to provide local services in competition with the Company. See "--
Competition."
The Company owns and operates public telephones and telephone booths
throughout the Region. At December 31, 1997, the Company had 86,847 public
telephones, of which 69.65% could be operated with a prepaid telephone card.
The Company plans to continue to replace its coin operated telephones with
card operated telephones (at December 31, 1995 and 1996, only 20% and 42%,
respectively, of public telephones could be operated with a prepaid telephone
card). The Concessions require the Company to meet specified targets for
public telephone services. The targets proposed by Anatel require the Company
to increase the number of public telephones to 114,400 by year-end 1999. See
"--Network and Facilities--Network Expansion" and "--Regulation of the
Brazilian Telecommunications Industry--Obligations of Telecommunications
Companies--Network Expansion--General Plan on Universal Service."
INTRA-REGIONAL LONG-DISTANCE SERVICE
Intra-regional long-distance service consists of all calls that originate
within one local area and terminate within another local area of the Region
(together with interregional long-distance service, "interurban" service).
Interstate long-distance service consists of calls between states and intra-
state long-distance service consists of calls within a state. Intra-regional
long-distance service includes intra-state long-distance service and
interstate long-distance service within and between states in the Region.
Prior to the Breakup, each Subsidiary was the exclusive provider of long-
distance service that originated and terminated within the Subsidiary's
concession area. Since each Subsidiary's concession area generally coincided
with the boundaries of a state, each Subsidiary was, generally speaking, the
exclusive provider of intra-state long-distance service in the state in which
it operated. Embratel was the exclusive provider of long-distance service
between the states. By 1999, the Company and Embratel will be authorized to
provide intra-regional long-distance service. Therefore, the Company will
expand to provide long-distance service between the states of the Region and
Embratel will
6
<PAGE>
expand to provide intra-state long-distance service. Until the Company
completes its intra-regional long-distance network, the Company may lease
transmission facilities from Embratel to complete some interstate calls within
the Region.
Additionally, Anatel will grant two new licenses for the provision of intra-
regional long-distance service to new entrants. See "--Competition." The
Company expects a significant increase in long-distance services provided by
the Company since the Company estimates that during 1998 more than 70% of the
long-distance calls in the Region originated and terminated within the Region.
Of these calls, 83% were intra-state calls and 17% were calls between states
within the Region.
INTERREGIONAL AND INTERNATIONAL SERVICE
Interregional long-distance service consists of calls between a point
located within the Region and a point in Brazil outside the Region.
International long-distance service consists of calls between a point within
the Region and a point outside of Brazil. The Company is not itself authorized
to provide interregional long-distance or international service. Beginning in
2002, the Company may seek a license to provide interregional and
international long-distance service provided that it has met certain
obligations contained in the Concessions. See "--Competition" and "--
Regulation of the Brazilian Telecommunications Industry--Obligations of
Telecommunications Companies."
Prior to April 1, 1998, revenues from outgoing interstate and international
long-distance calls were divided between Embratel and the operating
subsidiaries of the Telebras System. The revenue-sharing arrangement with
Embratel was designed to equalize the return on investment of the operating
subsidiaries. Under this system, each of the Subsidiaries retained a fixed
percentage of the customer charges for outgoing interstate and international
long-distance calls and paid the balance to Embratel. The Subsidiaries
generally received no revenue from incoming interstate or international long-
distance calls. In the case of interstate collect calls, each Subsidiary and
the other state operator divided equally the portion of the customer charge
not paid to Embratel. Each Subsidiary's percentage of revenues from outgoing
calls was reset annually every March and made effective as of April 1. The
Company retained, on average, 74% of the customer charges for outgoing
interstate and international long-distance in 1997.
The following table lists, for each Subsidiary, the fixed percentage of
revenues retained by the Company from customer charges for interstate and
international long-distance calls for each of the years in the three-year
period ended December 31, 1997.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------
1995 1996 1997
------- ------- -------
<S> <C> <C> <C>
Telecomunicacoes do Acre S.A.--Teleacre...... 90% 85% 89%
Telecomunicacoes de Rondonia S.A.--Teleron... 76 70 72
Telecomunicacoes de Goias S.A.--Telegoias.... 80 76 55
Telecomunicacoes de Brasilia S.A.--
Telebrasilia................................ 69 64 56
Telecomunicacoes de Mato Grosso S.A.--
Telemat..................................... 87 78 84
Telecomunicacoes de Mato Grosso do Sul S.A.--
Telems...................................... 64 61 68
Telecomunicacoes do Parana S.A.--Telepar..... 77 76 83
Telecomunicacoes de Santa Catarina S.A.--
Telesc...................................... 90 83 42
Companhia Telefonica Melhoramento e
Resistencia--CTMR........................... 90 86 89
------- ------- -------
Company's average............................ 81% 78% 74%
</TABLE>
Effective on April 1, 1998, the system of revenue-sharing was discontinued.
The Company's relationship with Embratel, or any other provider of
interregional and international services, is now governed by interconnection
agreements regulated by Anatel under which the providers of interregional and
international services will pay the Company a network usage fee for the use of
its network. See "--Regulation of the Brazilian Telecommunications Industry"
and "--Network Services." In order to soften the impact of the discontinuation
of the revenue-sharing arrangement, the Company receives from Embratel a
supplemental per-minute rebate (Parcela Adicional de Transicao or "PAT") that
supplements the network usage charge. This supplemental per-
7
<PAGE>
minute rebate from Embratel will be gradually phased out over the next three
years. Except for the revenue from Embratel that the Company receives during
the three-year transitional period and interconnection revenues, the Company
no longer recognizes revenues from interregional and international long-
distance services. Embratel is now the only carrier of interregional and
international calls. However, the Telecommunications Regulations provide that
another long-distance carrier will be licensed following the privatization of
the Telebras System and, beginning in 2002 at the earliest, the Company may be
permitted to provide such long-distance services. See "--Competition."
NETWORK SERVICES
The Company provides access to its network to other telecommunications
companies and leases certain network facilities to other telecommunications
companies as part of its network services business. The Company increasingly
provides interconnection services to other telecommunications services
providers as a result of the spin-off of the cellular business of the
Subsidiaries, the Breakup of the Telebras System and the advent of
competition. Cellular companies, Embratel and certain licensees that operate
telecommunications services interconnect with the Company's network in order
to receive calls that originate on the Company's network, to deliver calls
that terminate on the Company's network and to transport over the Company's
network calls that originate and terminate outside of the Company's network.
Interconnection revenues consist of fees collected by the Company for such use
of its network by other telecommunications network operators (network usage
fees) and for providing a physical connection to the network. See "--Rates--
Network Services." Since July 1996, following the introduction of competition
in cellular services, the terms of interconnection between fixed-line and
cellular operators have been subject to regulation. See "--Regulation of the
Brazilian Telecommunications Industry--Rate Regulation--Network Usage
Charges."
Currently, the Company provides interconnection services to ten cellular
providers, including the cellular companies it spun off on January 30, 1998
and some operators of trunking services. In 1997, the Company signed
interconnection agreements with the Area 7 Band B cellular provider and, in
1998, the Company signed interconnection agreements with the Area 5, 6 and 7
Band A cellular providers. The Company is negotiating interconnection
agreements with the Area 5 and 6 Band B cellular providers. Shortly, the
Company will also enter into an interconnection agreement with Embratel, that
will be retroactively applied as of April 1, 1998, under which Embratel will
pay fees to the Company for the use of its local network and, in certain
cases, its intra-regional long-distance network. In addition, until the
Company completes its intra-regional long-distance network, it may lease
transmission facilities from Embratel to carry some interstate calls within
the Region. The Subsidiaries Telegoias, Teleron and CTMR expect to be net
recipients of fees under the interconnection agreement with Embratel. The
other Subsidiaries expect to make net payments of fees under the
interconnection agreement with Embratel until the Company completes
integration of its intra-regional network. The Company cannot predict whether
the interconnection agreement with Embratel will result in higher or lower
revenue for carrying interregional and international long-distance calls than
under the prior regime because it will depend on future increases or decreases
in the Company's and Embratel's market share and future increases or decreases
in traffic. See "--Interregional and International Service."
The terms of interconnection, particularly pricing and technical
requirements, may affect the Company's results of operations, its competitive
environment and its capital expenditure policies. Under the current regulatory
framework, all telecommunications service providers must provide
interconnection services on a nondiscriminatory basis. Subject to certain
requirements, providers are free to negotiate the terms of interconnection
but, in the event the parties fail to reach an agreement, Anatel will
establish the terms of interconnection. See "--Regulation of the Brazilian
Telecommunications Industry--Obligations of Telecommunications Companies--
Interconnection."
The Company also leases facilities. Other telecommunications companies,
particularly cellular companies, lease trunk lines from the Company for use
within their stand-alone networks and large corporate customers lease lines
from the Company for use within private networks connecting different internal
corporate sites.
8
<PAGE>
DATA TRANSMISSION SERVICE
The Company provides low- and high-speed data transmission services through
private leased circuits, X.25, FRAME RELAY and SMDS, using E1 networks, SDH,
ATM and IP backbones. The Company also offers data transmission services over
the public network infrastructure and provides access to Embratel's data
transmission network. Beginning in 1989, the Company invested in data
transmission capacity in response to the growing demand in Brazil for services
that require high velocity dedicated and switched digital circuits, such as
data, image and text transmission, corporate networking, Internet backbone and
video conferencing. At May 1, 1998, the Company had approximately 52,600
accesses for these services. The Company is installing an additional 8,000
access gates to increase the Company's capacity to provide data transmission
services.
OTHER SERVICES
The Company provides a variety of telecommunications services that extend
beyond basic telephone service including, value added services (0900, follow-
me, voice mail, call waiting), Internet related services (Internet Protocol
access, E-mail access), Yellow Page advertising and advertising on public
telephone cards. Telebrasilia and Telegoias also have hybrid fiber coaxial
networks that permit transmission of cable television and interactive
services. Since 1995, telecommuncations companies have been prohibited from
providing cable television services. The Company, however, plans to adapt its
hybrid fiber coaxial network to permit new providers of cable television
service and interactive services (including access to the internet) to use its
network to deliver their services. In the cable television area, competition
will take place among current providers of cable television service and new
providers that are in the process of being granted operating licenses by
Anatel. The Company expects that increased competition between the suppliers
of such services will result in greater demand for its network.
QUALITY OF SERVICE
The following table gives certain basic measures of the quality of
telecommunications services for each year in the five-year period ended
December 31, 1997.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------
1993 1994 1995 1996 1997
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Repair requests per 100 installed access
lines.................................... 3.32 3.25 3.54 3.34 3.28
Response rate to repair requests
(percentage)(1).......................... 93.01 93.15 91.49 89.05 89.26
Rate of obtaining dialing tone with 3
seconds (percentage)..................... 98.86 98.77 99.00 N/A(2) N/A(2)
Call completion rate (direct-dialed
domestic long-distance calls)
(percentage)............................. 53.48 53.64 54.11 56.17 57.44
</TABLE>
- --------
(1) Response within 24 hours after request was made.
(2) As of 1996, Telebras stopped measuring this quality of service indicator.
The Company is required under the Telecommunications Regulations to meet
certain quality of service targets, including maximum periods to obtain a dial
tone, completed calls as a percentage of attempted calls, repair requests and
response rate to such requests, operator response periods and other measures
of service quality. See "--Regulation of the Brazilian Telecommunications
Industry--Obligations of Telecommunications Companies--Quality of Service--
General Plan on Quality." The Company has identified the quality of service
targets that the Company expects will be most difficult to meet, those the
Company expects to meet with medium difficulty and those the Company expects
to meet with relative ease. The targets the Company expects will be most
difficult to meet are call completion rates, maximum monthly repair requests
and the targeted response times to public telephone repair requests. As of
February 1998, the Company's rate of call completion was 57.89% for direct-
dialed domestic long-distance calls and 56.67% for local calls. The Company is
obligated by year end 1999 to increase the rate of call completion for local
and domestic long-distance calls to 60%. The Company expects that congestion
on the Company's network will decrease as the Company expands its own network.
However, the Company also anticipates future traffic problems at switching
stations as a result of the
9
<PAGE>
change in the numbering system. Anatel expects to implement the Numbering Plan
(Plano de Numeracao) in mid-year 1999. The Numbering Plan, as contemplated in
the current draft, will permit a customer to specify a long-distance carrier
by dialing three additional digits. The Numbering Plan will also increase from
7 to 8 the number of digits of individual telephone numbers. The Company also
expects that the Numbering Plan will cause the Company to accelerate the rate
at which the Company substitutes its analog switching centers for digital
switching centers, thereby accelerating the time by which the Company will
meet many other quality of service targets. Currently, the Company receives a
monthly average of 0.0328 repair requests per line and 0.32 public telephone
repair requests per line. The Company is obligated by year end 1999 to reduce
average monthly repair requests to 0.03 per line and 0.15 per line for public
telephones. In order to meet these targets, the Company expects to
significantly increase spending on systems to detect defects and supervise
repair. The Company also expects to invest in technology that will improve the
functioning of public telephones. By year-end 1999, the Company is obligated
to respond to 95% of public telephone repair requests within eight hours.
Currently, the Company responds to 88% of public telephone repair requests
within 24 hours. To meet this target, the Company expects to significantly
increase maintenance personnel. The Company expects to meet the target for
billing inaccuracy with average difficulty. Customer complaints of inaccurate
bills largely involve amounts due for 900 calls. All other targets the Company
has already met or expects to meet without difficulty.
RATES
Rates for telecommunications services provided by the Company are subject to
comprehensive regulation. See "--Regulation of the Brazilian
Telecommunications Industry--Rate Regulation." Since the relative
stabilization of the Brazilian economy in mid-1994, there have been two major
changes in rates for local and long-distance services. Effective in January
1996, rates for all services were increased, primarily to compensate for
accumulated effects of inflation. Effective in May 1997, the rate structure
was modified through a tariff rebalancing that resulted in higher charges for
measured service and monthly subscription, and lower charges for intra-
regional, interregional and international long-distance services. Monthly
subscription charges, for example, were increased by 270% for residential
customers and 59% for commercial customers. The Company believes that monthly
subscription charges are now generally in line with such charges in other
countries.
LOCAL SERVICES
The Company's revenue from local services consists principally of activation
and installation charges, monthly subscription charges, measured service
charges and public telephone charges.
Users of measured service, both residential and nonresidential, pay for
local calls on usage. Usage is measured in pulses. Pulses occur system-wide
every four minutes for local calls. These system-wide pulses are recorded
independently of when individual calls are actually made. In addition to
system-wide pulses, the system records one pulse for every call when the call
is connected. After the first pulse, only system-wide pulses are used in
determining the charge for a call. As a result, the time between the first
pulse and the second (system-wide) pulse may vary. For example, for a call
being charged using four-minute pulse increments, the time between the first
pulse and the second (system-wide) pulse may vary between one second and four
minutes. Approximately 72% of the Company's customers use over 90 pulses per
month.
For normal weekday calls, local call charges are determined by multiplying
the number of pulses by the charge per pulse. For calls being made any day
between midnight and 6:00 a.m., in addition to Saturdays from 2:00 p.m. to
midnight and all day Sunday and holidays, a caller is charged for only one
pulse regardless of the duration of a call. Each customer receives a total of
90 free pulses per month. Measured service charges are the same for all
customers.
10
<PAGE>
Since May 1997, the monthly subscription charge in nominal terms (including
taxes) has been R$13.82 for residential customers, R$20.73 for commercial
customers and R$27.64 for users of PBX systems and the price of one pulse
(including taxes) has been R$0.08. In 1997, monthly subscription charges
accounted for 35% of local service revenues. The following table illustrates
changes in subscription charges and measured service charges for local
telephone service for each year in the three-year period ended December 31,
1997 in constant reais of December 31, 1997 purchasing power.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1995 1996 1997
------- ------- -------
(IN REAIS)
<S> <C> <C> <C>
Average rates for local telephone service(1)
Monthly subscription:
Residential...................................... 0.82 3.00 7.78
Commercial....................................... 7.28 10.46 13.50
PBX.............................................. 9.41 13.94 18.00
Measured service (per local pulse)................. 0.025 0.038 0.054
</TABLE>
- --------
(1) Average of monthly average rates, net of value-added taxes.
Prior to May 1997, under a system called "auto-financing", each new customer
was required to invest in shares of Telebras or its subsidiaries. The amount
to be invested varied from time to time but was very substantial. In 1996, for
example, the required investment for a new line was R$1,117.63. Auto-financing
was phased out in 1997, and since July 1997 the installation charge, which was
initially R$300, has been reduced to R$80 in October 1997 and to R$50 in March
1998. The Company also charges an activation fee of R$48 when a customer
changes addresses.
INTRA-REGIONAL LONG-DISTANCE SERVICE
Currently, rates for intra-regional long-distance calls are computed on the
basis of the time and day, duration and distance of a call and use of special
services, such as operator assistance. Some intra-regional calls made within
the same area code may also be measured by pulses. Rates for domestic long-
distance (whether intra-regional or inter-regional) are uniform throughout
Brazil. See "--Regulation of the Brazilian Telecommunications Industry--Rate
Regulation."
The following table illustrates the historical changes in the Company's
average domestic long-distance rates for the periods indicated in constant
reais of December 31, 1997 purchasing power.
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
------------------------
1993 1994 1995 1996 1997
---- ---- ---- ---- ----
(IN REAIS)
<S> <C> <C> <C> <C> <C>
Domestic long-distance rates(1):
0 to 50 km........................................ 0.79 0.46 0.46 0.42 0.32
50 to 100 km...................................... 1.32 0.78 0.76 0.70 0.54
100 to 300 km..................................... 1.98 1.18 1.16 1.07 0.81
over 300 km....................................... 2.65 1.57 1.53 1.40 1.08
</TABLE>
- --------
(1) Rates for a domestic long-distance call, three minutes in duration
between the hours of 9:00 a.m. and 12:00 p.m. and 2:00 p.m. and 6:00 p.m.
(peak hours) on weekdays, net of value-added taxes.
11
<PAGE>
NETWORK SERVICES
The Company's revenue from network services consists primarily of two basic
categories: payments from other providers on a per-minute basis to terminate
calls using the Company's network and payments from other providers on a
contractual basis to use part of the Company's network. On a per-minute basis,
other providers pay the Company a network usage charge to terminate a call on
the Company's network. The network usage charge varies depending on whether
the provider uses the Company's local or long-distance network. Similarly, the
Company pays other fixed-line providers a network usage charge to terminate a
call on another fixed-line network and the Company pays cellular providers a
network usage charge to terminate a call on a cellular network. Cellular
telephone service in Brazil, unlike in North America, is offered on a "calling
party pays" basis. Under the policy of a calling party pays, a cellular
service subscriber generally pays cellular usage charges only for calls made
by the cellular subscriber and not for calls received. Calls received by a
cellular subscriber are paid for by the party that places the call in
accordance with a rate based on cellular per minute charges. For example, a
fixed-line customer pays a rate based on cellular per minute charges for calls
made to a cellular subscriber. The cellular base rate per minute charges are
generally VC1 for calls within the locality, VC2 for calls outside the
cellular subscriber's registration area, and VC3 for calls outside the
concession region in which the registration area is located. The Company
charges its fixed-line customers per minute charges based on either VC1, VC2,
or VC3 rates when a fixed-line customer calls a cellular subscriber. In turn,
the Company pays the cellular service provider the mobile network usage
charge.
The Company's revenue from network services also includes payments from
other telecommunications providers arranged on a contractual basis to use part
of the Company's network. Other providers, such as providers of trunking and
paging services, use the Company's transmission lines to connect a central
switching station to the Company's network. Some cellular providers use the
Company's network to connect cellular central switching stations to the
cellular radio base stations.
The table below sets forth the average rates charged by the Company for
network services charged on a per-minute basis in the three year period ended
December 31, 1997.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------
1995 1996 1997
-------- -------- --------
(IN REAIS)
<S> <C> <C> <C>
Network usage rate (local)........................... 0.027 0.033 0.038
Network usage rate (long-distance)................... 0.054 0.060 0.064
Cellular base rates per minute:
VC1................................................ 0.220 0.262 0.270
VC2................................................ 0.480 0.576 0.580
VC3................................................ 0.600 0.660 0.660
</TABLE>
DATA TRANSMISSION
The majority of revenue from data transmission services is generated by
monthly line rental charges for private leased circuits. The balance consists
mainly of nominal charges for access to the data transmission network and
measured charges based on the amount of data transmitted. The Company has a
discount policy that takes into account the length of the agreement and the
number of leased circuits. Effective in May 1997, line rental charges for
private leased circuits were reduced by 42%. In March 1998, the Company
adopted a discount policy for private lease circuits and the industrial use of
2Mbps circuits, focusing primarily on major corporate customers and
telecommunications service providers. The discounts are a function of duration
of the contract (from a 10% discount for a two-year contract up to 30% for a 5
year contract) and the contracted bandwidth (from a 5% discount for a minimum
of 51 circuits up to 25% for more than 500 circuits). In June 1998, the
Company revised the policy by focusing specifically on the telecommunications
services providers market. The Company offers a discount for the industrial
use of 2Mbps circuits based on the duration of the contract (from a 10%
discount for a one-year contract up to 20% for a three-year contract) and
contracted bandwidth (from a 5% discount up to 48%, depending on distances).
Package switching data transmission services are also a significant source of
revenue for the Company. The following table illustrates the Company's monthly
line rental charges (including customer discounts) for private leased circuits
service for each year in the three-year period ended December 31, 1997 in
constant reais of December 31, 1997 purchasing power.
12
<PAGE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------
1995 1996 1997
--------- --------- ---------
(IN REAIS)
<S> <C> <C> <C>
Average rates for monthly line rental per
leased circuit:
Local circuit
4.8 kbits--digital modem................ 165.47 293.27 200.06
4.8 kbits--analog modem................. 514.69 293.27 200.06
9.6 kbits--digital modem................ 184.43 448.93 223.81
9.6 kbits--analog modem................. 833.74 448.93 223.81
64 kbits................................ 1,605.04 1,152.43 474.43
2 Mbits................................. 10,292.63 8,312.51 5,284.49
Long-distance circuit(1)
4.8 kbits/second capacity............... 2,157.93 1,790.20 962.53
9.6 kbits/second capacity............... 3,236.94 2,608.02 1,112.04
64 kbits/second capacity................ 9,178.15 5,940.72 2,335.00
2 Mbits/second capacity................. 58,829.47 45,844.62 29,088.43
</TABLE>
- --------
(1) Average of monthly average rates, net of value-added taxes, assuming a
transmission distance between 300 and 500 kilometers and a 3-year
contract.
TAXES ON TELECOMMUNICATIONS SERVICES
The cost of all telecommunications services to the customer includes a
variety of taxes. The Company deducts the amount of such taxes to present net
operating revenue. The principal tax is a state value-added tax, the Imposto
sobre Circulacao de Mercadorias e Servicos ("ICMS"), which the Brazilian
states impose at varying rates on revenues from the provision of
telecommunications services. The rate in the states that comprise the Region
is 25% for domestic telecommunications services, except the rate for Acre
which is 17%.
On June 19, 1998 the secretaries of the treasury of the individual Brazilian
states approved an agreement to interpret existing Brazilian tax law to
broaden the application of the ICMS to cover not only telecommunications
services, but also other services, including cellular activation, which had
not been previously subject to such tax. Pursuant to this new interpretation
of existing tax law, the ICMS tax may be applied retroactively for such
telecommunications services rendered during the last five years.
The Company believes that the attempt by the state treasury secretaries to
extend the scope of ICMS tax to services which are supplementary to basic
telecommunications services is unlawful because: (i) the state secretaries
acted beyond the scope of their authority; (ii) their interpretation would
subject certain services to taxation which are not considered
telecommunications services; and (iii) no new taxes may be applied
retroactively. Accordingly, no provision for loss has been made in the
accompanying consolidated financial statements.
There can be no assurance that the Company will prevail in its position that
the new interpretation by the state treasury secretaries is unlawful. If the
ICMS tax were applied retroactively for five years at rates ranging from 17 to
25%, it would have a material negative impact on the financial condition and
results of operations of the Company. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations--Results of
Operations for years ended December 31, 1995, 1996 and 1997--Gross operating
revenues--Value-added taxes and other taxes."
Other taxes on operating revenues include two federal social contribution
taxes, the Programa de Assistencia aos Servidores de Empresas Publicas
("PASEP") (0.65%) and the Contribuicao para Financiamento da Seguridade Social
("COFINS") (2.0%). The average rate of all such taxes, as a percentage of the
Company's gross operating revenues, was 25.67% in 1997.
13
<PAGE>
NETWORK AND FACILITIES
GENERAL
The Company's network consists of installed lines and exchanges, a network
of access lines connecting customers to exchanges, and long-distance related
systems. At December 31, 1997, the Company's regional telephone network
included approximately 3.6 million installed lines, of which 3.1 million were
lines in service. Of the access lines in service at that time, 68.1% were
residential lines, 26.3% were commercial lines (including PBX lines) and 2.7%
were public telephone lines. Intra-regional long-distance transmission is
provided by a microwave network and by fiber optic cable. In 1997, the Company
provided services to 1,359 municipalities, representing 99.78% of all
municipalities in the Region.
The following table gives certain basic measures of the development of the
Company's network for each year in the five-year period ended December 31,
1997.
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
------------------------
1993 1994 1995 1996 1997
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Installed access lines (millions) (at period end).... 2.3 2.4 2.8 3.1 3.6
Access lines in service (millions) (at period end)... 2.0 2.2 2.5 2.8 3.2
Average access lines in service (millions)........... 1.9 2.1 2.3 2.6 2.9
Lines in service per 100 inhabitants (at period
end)................................................ 7.9 8.3 9.3 10.2 11.3
Percentage of installed access lines connected to
digital exchanges................................... 35.1 41.6 55.2 63.6 74.2
Employees per 1,000 access lines installed (at period
end)................................................ 6.63 6.57 5.18 4.57 3.25
Number of public telephones (thousands).............. 48.4 54.7 58.9 72.9 86.8
Local call pulses (billions)......................... 8.9 9.3 9.3 9.5 9.9
Domestic long-distance call minutes (billions)....... 3.2 3.7 4.4 5.2 5.6
International call minutes (millions)................ 18 23 37 45 55
</TABLE>
The Company believes that the unmet demand for fixed-line telecommunications
services in the Region is substantial. At December 31, 1997, 29% of the
households and 74% of the businesses in the Region had local telephone
service. Prior to the privatization, growth of lines in service was restricted
by government limits on capital expenditures and the high cost to customers of
obtaining service. See "--Capital Expenditures." In 1997, the Company
experienced a significant increase in applications for new lines, because the
cost to the customer of installing new lines significantly decreased following
the elimination of auto-financing. See "--Rate--Local Services." The customer
waiting period for the installation of a new line varies significantly
depending on the access network and the capacity of the switching center that
serves the locality. Approximately 1.6 million people are currently wait-
listed. The potentially long wait has resulted in a large secondary market for
the sale of telephone lines.
The Company began to install digital exchanges in 1989 and optical fiber
cable in 1986. Compared to the older analog technology, digital systems
improve the quality and efficiency of the network, accommodate higher traffic
levels, require less maintenance and permit the Company to offer a broad range
of value added services simultaneously on the same network, such as voice,
text and data applications. Optical fiber provides greater transmission
capacity and significantly reduces the fading of signals, and requires less
frequent amplification, thereby reducing the cost of providing service and
increasing traffic and network reliability. Beginning in 1993, all new lines
installed by the Company were connected to digital exchanges and during 1997,
10.43% of existing analog lines were converted to digital lines. At December
31, 1997, 73.7% of all installed lines were connected to digital exchanges. By
year-end 1997, the Company had installed 209,600 kilometers of optical fiber,
98,701 kilometers were installed during 1997. By the end of 2002, the Company
plans to have replaced almost all of its analog exchanges with digital
exchanges.
In January 1998, the Company commenced various projects to turn the intra-
state transmission systems of the Subsidiaries into a network capable of
providing intra-regional service. The Company is in the process of integrating
its network and optimizing its gateway architecture to improve intra-regional
transmission. The
14
<PAGE>
Company hopes to complete the integration of its intra-regional network by
December 1998 but the Company can give no assurance that the Company will meet
this goal. The Company also plans to utilize new technologies such as an
orbital satellite position and establish strategic partnerships to expand and
diversify the range of services the Company can offer. Subject to final
approval by Anatel, the Company will be granted the option to use Wireless
Local Loop ("WLL") technology in localities with less than 50,000 inhabitants.
New entrants will be allowed to use the WLL technology in localities with
population above or below 50,000 inhabitants. The Company will also be allowed
to use the WLL technology in localities with population above 50,000
inhabitants if the new entrant decides not to provide services to that
locality. The Company's planned network expansion will permit the Company to
expand nationally and internationally when authorized by Anatel and help the
Company meet quality and universal service obligations as established by
Anatel. See "--Regulation of the Brazilian Telecommunications Industry--
Obligations of Telecommunications Companies."
NETWORK EXPANSION
The Company is required under the Telecommunications Regulations to meet
certain targets regarding network expansion and modernization. The Company
estimates that these targets will require the Company to expand its network by
approximately 13% per year for 6 years. See "--Regulation of the Brazilian
Telecommunications Industry--Obligations of Telecommunications Companies--
Network Expansion--General Plan on Universal Service." The Company has
identified the targets that the Company expects will be most difficult to
meet, those the Company expects to meet with medium difficulty and those the
Company expects to meet with relative ease. The targets the Company expects
will be most difficult to meet are average waiting period for the installation
of a line and installation of public telephones. The Company is obligated to
reduce the average waiting time for installation of a line by year end 2001 to
four weeks. Currently, the average waiting time is 65 weeks. This target is
especially difficult to meet in low population areas. The Company believes
that prior to privatization, the Company would not have been able to comply
with these targets. However, following privatization, demand will be met more
readily as competitors enter the market and the Company expands its own
network without government-imposed restrictions on investments. See "--
Competition" and "--Capital Expenditures." The Company is obligated to install
114,400 public telephones by year end 1999, 50% with local and domestic long-
distance direct-dial capability and 25% with international long-distance
direct-dial capability. Currently, the Company has 86,800 public telephones
installed, approximately 91% with local and domestic long-distance direct-dial
capability and 1% with international long-distance direct-dial capability. All
other targets the Company has already met or expects to meet without any
difficulty.
BILLING AND ADMINISTRATION
The Company bills its customers for all calls made by its customers. The
Company receives network usage fees when calls from cellular carriers or other
fixed-line carriers terminate calls on its network and conversely, the Company
must pay network usage fees when calls from its customers terminate on the
network of a cellular carrier or one of the other fixed-line carriers. See "--
Rates--Network Services." After the collection cycle is over, the Company, the
cellular carriers and the other fixed-line carriers jointly reconcile the
amounts collected from customers against the amounts due to each carrier and
pay the net amounts outstanding to the appropriate parties. For international
and domestic long-distance calls, the Company charges Embratel a fee for the
use of its local network and forwards the amount collected from its customers
for such calls to Embratel.
The Company sends each customer a monthly telephone bill covering all the
services provided during the prior period. Customers are grouped in billing
cycles based on the date the bill is issued. The telephone bill separately
itemizes long-distance calls, calls made on a cellular network, 0800 and 0900
services and other value added services. Customer payments are effected under
agreements with various banks, either by debiting the customer's checking
account or by direct payment to a bank. The method of payment is at the option
of each customer.
During 1997, the Company blocked the service of approximately 2,742 thousand
lines (counting each occasion on which a line was blocked during the year),
and approximately 97.61% of such lines were unblocked following payment of the
overdue amounts. The Company charges interest at a rate of approximately 1%
per month plus a one-time late charge of 2% of the total amount outstanding.
15
<PAGE>
At December 31, 1997, 13% of all receivables were outstanding for more than
30 days and 6% of all receivables were outstanding for more than 90 days.
Under previous regulations, the Company was not permitted to disconnect a
customer until a receivable has been outstanding for over 90 days. The
Concessions now authorize the Company to disconnect a customer after 30 days
with prior notice of 15 days. The Company's future disconnection policy will
depend on factors such as the level of unmet demand, the level of competition
and regulation governing disconnection. For a discussion of provisions for
past due accounts, see "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Results of Operations for the years ended
December 31, 1995, 1996 and 1997--Operating expenses--Selling expense."
COMPETITION
Since 1995, Brazil has adopted sweeping regulatory changes intended to
foster competition in the provision of telecommunications services. See "--
Background--Regulatory Reform and Privatization." Under the Telecommunications
Law and Telecommunications Regulations, Anatel is required, promptly after the
privatization is effected, to open the markets for local, intra-regional long-
distance, interregional long-distance and international long-distance services
to competition by granting licenses to new entrants. Anatel is required to
authorize three new entrants to provide local telephone service and intra-
regional long-distance telephone service, with each of the three new entrants
receiving two licenses to provide such services in a single fixed-line region.
Anatel is also required to authorize one new entrant to provide intra-
regional, interregional and international long-distance service by granting
licenses to provide such services throughout Brazil.
The Company and Embratel, the former long-distance carrier of the Telebras
System, will also be authorized to provide intra-regional long-distance
service. Therefore, the Company will expand to provide long-distance service
between the states of the Region, whereas prior to the privatization the
Company's long-distance service was limited to intra-state long-distance, and
Embratel will expand to provide intra-state long-distance service, whereas
prior to the privatization Embratel's long-distance service was limited to
interstate long-distance. The Company expects to significantly increase the
long-distance services provided by the Company since during 1998, more than
70% of the long-distance calls in the Region originated and terminated in the
Region. Of these calls, 83% were intra-state calls and 17% were calls between
states within the Region. See "--Customer Service--Intra-Regional Long-
Distance Service." The Company expects that Embratel will begin to compete
directly with the Company by starting to provide intra-state long-distance
service in the Region, and by continuing to provide interstate long-distance
service in the Region. Although the Company cannot predict the scope of
Embratel's activities or the effect of competition from Embratel, Embratel may
be a powerful competitor.
The licenses Anatel will provide to new entrants for the provision of intra-
regional long-distance service will be issued in the Private Regime and, as a
result, the licensees will not be subject to the same obligations to which
concessionaires operating in the Public Regime are subject. See "--Regulation
of the Brazilian Telecommunications Industry--Concessions and Licenses."
Beginning in 2002, Anatel may grant an unlimited number of additional licenses
for the provision of local, intra-regional long-distance, interregional long-
distance and international long-distance services. See "--Regulation of the
Brazilian Telecommunications Industry--Concessions and Licenses."
The Company is currently the exclusive provider of local service in the
Region, but the new operator to be authorized by Anatel will compete with the
Company in the provision of local service. Beginning in 2002, the Company may
face an unlimited number of competitors in local and intra-regional long-
distance, and it may itself seek a license to provide interregional and
international long-distance service provided that it has met certain
obligations contained in the Concession. See "--Regulation of the Brazilian
Telecommunications Industry--Obligations of Telecommunications Companies."
The Company's fixed-line services are also subject to competition from
providers of cellular telephone service. There are currently nine Band A
cellular operators in the Region that were spun-off from the Subsidiaries in
January 30, 1998: Teleacre Celular S.A., Teleron Celular S.A., Telegoias
Celular S.A., Telebrasilia Celular S.A., Telemat Celular S.A., Telems Celular
S.A., Telepar Celular S.A., Telesc Celular S.A. and CTMR Celular
16
<PAGE>
S.A. Three additional Band A cellular telephone service operators also operate
in the Region: CRT Celular S.A., Sercomtel S.A., and CTBC Telecom S.A. There
are currently three Band B operators authorized to operate or currently
operating in the Region: Global Telecom Ltda., authorized to operate in the
states of Parana and Santa Catarina, Telet S.A., authorized to operate in the
state of Rio Grande do Sul and Americel S.A., currently operating in the
states of Acre, Rondonia, Mato Grosso do Sul, Mato Grosso, Tocantins, Goias
and the Distrito Federal.
The exact identity of other new entrants, the scope of increased competition
and any adverse effects on the Company's results and market share will depend
on a variety of factors that cannot now be assessed with precision and that
are beyond the Company's control. Among such factors are the business
strategies and capabilities of potential competitors, prevailing market
conditions at the time increased competition is permitted, the regulations
applicable to new entrants and the Company, and the effectiveness of the
Company's efforts to prepare for increased competition. One or more new
competitors may have technical or financial resources greater than those of
the Company. There can be no assurance that the entry of new competitors will
not have a material adverse effect on the Company's business, financial
condition, results of operations or prospects.
The Company is subject to comprehensive regulations that limit its ability
to set tariffs for its various services and that may limit is ability to
engage in activities that are considered to be anti-competitive. Such
regulations may limit the Company's ability to confront competition. See "--
Regulation of the Brazilian Telecommunications Industry."
EMPLOYEES
As of December 31, 1997, the Company had 13,945 employees. All of the
Company's employees are employed on a full-time basis, grouped according to
the following functions: corporate management (1.7%), marketing (1.8%), plant
expansion and modernization (14.1%), plant operation and maintenance (31.8%),
client services (20.8%), human resources (2.4%), budget and finance (4.8%),
supplies (2.8%), informations services (4.4%), administrative support (3.9%)
and general administration (11.5%).
Approximately 80.32% of all employees are members of state labor unions
associated either with the Federacao Nacional dos Trabalhadores em
Telecomunicacoes ("Fenattel") or with the Federacao Interestadual dos
Trabalhadores, em Telecomunicacoes ("Fittel"). Some employees in particular
job categories are affiliated with other unions specific to such categories.
Each operating subsidiary of the Company negotiates a new collective labor
agreement every year with the local union. These negotiations are carried out
with the supervision and guidance of the Company, on one side, and Fenattel or
Fittel, on the other. The collective agreements currently in force expire on
November 30, 1998. The Company's management considers the relations of the
Company with its work force to be satisfactory. The Company has never
experienced a work stoppage that had a material effect on its operations.
The Company participates in a pension fund established by Telebras, Fundacao
Sistel de Seguridade Social ("Sistel"), the primary purpose of which is to
supplement government-provided retirement benefits. The Company participates
in Sistel and makes monthly contributions to Sistel currently equal, on
average, to 13.5% of the total salaries of all employees who are Sistel
members. Each employee member also makes a monthly contribution to Sistel
based on age and salary (currently around 7.5% of their salaries). Members of
Sistel qualify for full pension benefits after reaching age 57 and having
completed at least 35 years of service for men and 30 years of service for
women. Sistel operates independently from the Company and Telebras, and its
assets and liabilities are fully segregated from those of the Company and
Telebras. See Note 21 to the Consolidated Financial Statements. Employees of
the Company at the time of the privatization have the right to maintain their
rights and benefits in Sistel in accordance with the terms in place at that
time.
Telepar is the only Subsidiary that has offered to its employees a
complementary pension plan in addition to that offered by Sistel. In June of
1998, Telepar and 1,978 employees out of a total of 2,218 employees covered
under the complementary pension plan signed an agreement ending the employees'
rights to complementary benefits. The remaining 240 employees who did not
accept the agreement continue to be covered by the plan.
17
<PAGE>
RESEARCH AND DEVELOPMENT
Until the Breakup of Telebras, the Company and the other companies of the
Telebras System were required to contribute to the research and development
center operated by Telebras (Centro de Pesquisa e Desenvolvimento da
Telebras--CPqD or the "Center") and also conducted some of their own
independent research and development. The Company's aggregate expenditures on
research and development were R$16.1 million, R$16.9 million and R$16.1
million for 1995, 1996 and 1997, respectively.
Following the Breakup of Telebras, the Center will become a private
independently administered nonprofit foundation financed with resources from
the public and private sector and will continue to develop telecommunications
technology. Pursuant to an agreement signed in May 1998 between the Center and
the Company, the Company is obligated to contribute with a total of R$ 63.3
million to the Center during a three- year period ending May 2001. During the
effectiveness of this agreement, the Company has access to telecommunications
software developed by the Center and other technological services provided by
the Center such as equipment testing and consulting and training services.
Each of the other New Holding Companies has entered into a similar contract
with the Center which entitles it to equal access to such services and
requires it to make contributions to the Center based on its revenues and its
anticipated need for such services. It is possible that the Center will also
provide such services to third parties on a fee-for-service basis. The Company
may request additional technological support from the Center, more than
contemplated in the agreement, by contributing additional funds to the Center.
The Company conducts independent research and development in areas of
telecommunications services but does not independently plan to develop new
telecommunications hardware. The Company primarily depends on manufacturers of
telecommunications hardware for the development of new hardware.
CAPITAL EXPENDITURES
The primary focus of the Company's capital expenditure program has been the
expansion, modernization and digitalization of the network.
Prior to the privatization of Telebras, capital expenditures were planned
and allocated on a system-wide basis and were subject to approval by the
Ministry of Communications. In addition, the budget for capital expenditures
of the Telebras System was included in the annual budget of the Federal
Government and had to be approved by the federal Congress. In 1995, the
Federal Government instituted a broad investment program for public and
private businesses in the communications and postal sectors for the years 1995
through 1999 (Programa de Recuperacao e Expansao dos Sistemas de
Telecomunicacoes e Postal--PASTE or "PASTE"). The Telebras System was required
to conform its annual capital expenditure budget to the guidelines set by
PASTE. The companies that comprised the Telebras System were further required
to comply with public bidding processes prior to hiring third-party
contractors.
Since the privatization of Telebras, the Company's capital expenditures have
not been subject to prior government approval nor government-imposed spending
limits nor public bidding processes. The Company is now permitted to determine
its own capital expenditure budget, subject to compliance with certain
obligations to expand services under the Concessions. See "--Regulation of the
Brazilian Telecommunications Industry--Obligations of Telecommunications
Companies." In addition, the financing of capital expenditures is no longer
carried out on a system-wide basis, and the Company is required to obtain its
own financing. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Liquidity and Capital Resources."
The 1998 annual capital expenditure budget for the Telebras System includes
capital expenditures of the Company. The Company anticipates capital
expenditures for the first eight months of 1998 will be R$719.1 million which
is expected to be funded with debt and other sources (44%) and internally
generated funds from operations (56%). The Company expects, however, that as a
result of the privatization of Telebras, all capital expenditures will be
subject to revision by management and the new controlling shareholders of the
Company.
18
<PAGE>
The following table sets forth, in constant reais of December 31, 1997
purchasing power, the Company's capital expenditures for each year in the
four-year period ended December 31, 1997.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------
(IN MILLIONS OF REAIS)
------------------------
1995 1996 1997
--------------- --------
<S> <C> <C> <C>
Operational investments(1)............................. 65.5 81.8 72.7
Telephone equipment:
General:
Exchanges.......................................... 109.2 193.2 263.5
Transmission....................................... 112.8 155.4 124.2
Outside plant...................................... 111.2 196.3 233.0
Real estate and power.............................. 53.9 44.1 22.5
Specialized networks............................... 14.7 -- 2.3
------ -------- --------
Total............................................ 401.8 589.0 645.5
Data transmission equipment............................ 39.9 39.4 46.2
Other Investments...................................... 398.7 388.5 360.6
------ -------- --------
Total capital expenditures....................... 905.9 1,098.7 1,125.0
====== ======== ========
</TABLE>
- --------
(1) Operational investments include investments to replace plant equipment and
other fixed assets generally without altering the capacity of the asset
replaced and certain investments in operational and technical support,
such as telecommunications management network systems.
REGULATION OF THE BRAZILIAN TELECOMMUNICATIONS INDUSTRY
GENERAL
The Company's business, including the services it may provide and the rates
it charges for telecommunications services, is regulated by Anatel pursuant to
the Telecommunications Law, the regulations, decrees, orders and plans issued
thereunder and the Concessions granting the Company the right to provide
certain telecommunications services, subject to certain obligations contained
in the Concessions (the "List of Obligations").
BACKGROUND
From 1962 until 1967, the Brazilian telecommunications sector was regulated
by the Conselho Nacional de Telecomunicacoes (the "National Council of
Telecommunications"), and from 1967 until 1997 by the Ministry of
Communications, pursuant to Law No. 4,117 of August 27, 1962, as well as
certain regulations issued pursuant thereto from 1962 to 1996.
In August 1995, the Brazilian Congress amended the Brazilian Constitution to
allow the restructuring of the telecommunications sector. On July 19, 1996,
the Congress passed Law 9,295, the Lei Minima (the "Minimum Law"). The Minimum
Law began the process of opening up the cellular market to competition. The
Minimum Law was largely replaced by the Telecommunications Law, although
current cellular concessions for the former Telebras companies ("Band A") and
the private companies that were authorized to compete with the Band A
companies ("Band B") contain certain provisions derived from the Minimum Law.
In July 1997, the Congress passed the Telecommunications Law, which replaced
Law 4,117 and became the main basis for regulation of the telecommunications
sector, except for regulation of broadcasting, which was not addressed by the
Telecommunications Law.
REGULATORY AGENCY--ANATEL
The Telecommunications Law provides a framework for telecommunications
regulation. Article 8 of the Telecommunications Law established Anatel to
develop regulations and to enforce such regulations. The specific functions of
Anatel were set forth by the President of Brazil in Decree No. 2338 of October
7, 1997, the Regulamento
19
<PAGE>
da Agencia Nacional de Telecomunicacoes (the "Anatel Decree"). Pursuant to the
Telecommunications Law and the Anatel Decree, Anatel replaces the Ministry of
Communications as the regulatory agency for the telecommunications sector.
Anatel, unlike the Ministry of Communications, is an independent regulatory
agency. Anatel is administratively independent, financially autonomous and not
hierarchically subordinated to any organ of the Federal Government, including
the Ministry of Communications, in the area of telecommunications regulation.
While independent, Anatel does maintain a close working relationship with the
Ministry of Communications and informs the Ministry of its activities. Article
19, Section XXIX of the Telecommunications Law requires Anatel to submit an
annual report summarizing its activities to the Ministry of Communications.
Anatel is managed by a five-member Conselho Diretor ("Board of Directors"),
headed by an executive president. The directors of Anatel are nominated by the
President of Brazil, subject to approval by the Senate. Each director serves
for a single fixed term of 5 years; directors may not be reappointed. In order
further to ensure Anatel's independence, the first directors have been
appointed for different terms, from 3 to 7 years, so that only one director's
mandate will expire per year, ensuring a staggered appointment of directors in
the future. The directors may not exercise any other professional, business
(other than university professor), union or political function, nor may they
hold a significant interest, whether direct or indirect, in any company
related to telecommunications.
Anatel is financed through the Fundo de Fiscalizacao das Telecomunicacoes
("Fistel"). Fistel is a fund administered by Anatel and its funds are
currently the sole source of financing for Anatel's activities. Fistel
receives the proceeds of, among other things, a tax imposed on concessionaires
and fees charged for licenses and concessions.
Any proposed regulation of Anatel is subject to a period of public comment,
including public hearings. Anatel's actions may ultimately be challenged in
Brazilian courts.
CONCESSIONS AND LICENSES
Companies wishing to offer telecommunications services to consumers are
required to apply to Anatel for a concession or license. Concessions and
licenses are granted for services in the public regime ("Public Regime") and
services in the private regime ("Private Regime"). The Public Regime is
differentiated from the Private Regime primarily by the obligations imposed on
the companies in the Public Regime rather than the type of services offered by
those companies. There are only four companies in the Public Regime: Embratel
and the three regional fixed-line companies. All other telecommunications
companies, including other companies providing the same telecommunications
services as the four companies in the Public Regime, operate in the Private
Regime.
Fixed-line Services--Public Regime. There are four providers of services in
the Public Regime: Embratel and the three regional fixed-line companies. These
four companies are the primary providers of the following fixed-line services
to the general public: local, intra-regional long-distance, interregional
long-distance and international long-distance. Each of these four companies
holds concessions, as required by the Telecommunications Law. Each Public
Regime concession is a specific grant of authority that allows the
concessionaire to offer a wide variety of telecommunications services but
specifically prohibits the concessionaire from offering certain
telecommunications services and imposes certain obligations on the
concessionaire concerning network expansion and modernization, quality and
continuity of service. The main restriction is that, until December 31, 2003,
the regional fixed-line companies will be prohibited from offering
interregional and international long-distance service, while Embratel will be
prohibited from offering local service unless certain obligations are met as
described below. Anatel is required, some time after the privatization process
is complete, to grant Embratel the right to offer full intra-regional long-
distance service, which is currently restricted to the regional fixed-line
companies. See "--Obligations of Telecommunications Companies--Public Regime--
Service Restrictions."
20
<PAGE>
Concessions for Embratel and the three regional fixed-line companies are
granted for a fixed number of years, subject to certain obligations, with the
possibility of full renewal or revocation. See "--Obligations of
Telecommunications Companies--Public Regime--Service Restrictions." The
initial concessions for Embratel and the regional fixed-line companies have
been granted until 2005. After 2005, the concessions may be renewed. The
renewal period is currently 20 years. The current concessions granted to the
four companies in the Public Regime have not required the payment of a fee.
While terms for the grant of concessions to new entrants have not yet been
determined by Anatel, Embratel and the regional fixed-line companies are
required to pay biannual renewal fees after 2005 equal to 2% of annual net
revenues from the provision of fixed-line public telecommunications services
in the prior year (excluding taxes and social contributions) during the 20-
year renewal period.
Fixed-line Services--Private Regime. Licenses will be granted to new
competitors wishing to offer fixed-line-based services, including local,
intra-regional long-distance, interregional long-distance and international
long-distance, in the Private Regime. Licensees are not subject to the same
obligations as Public Regime concessionaires, although individual licenses may
contain certain obligations. After the privatization process for Embratel and
the three regional fixed-line companies is complete, Anatel is required to
authorize three new entrants to provide local telephone service and intra-
regional long-distance telephone service, with each of the three new entrants
receiving two licenses to provide such services in a single fixed-line Region,
in addition to authorizing one new entrant to provide intra-regional,
interregional and long-distance telephone and international telephone long-
distance by granting three licenses to provide such services throughout
Brazil. The bidding requirements are expected to contain certain minimum
technical and financial standards. The effective result of the license auction
will be that two companies compete in each of the markets for local service
(one regional fixed-line concessionaire and one licensee), four companies
compete in the markets for intra-regional long-distance service (one incumbent
regional fixed-line company, Embratel, and two licensees), and two companies
compete in the markets for interregional long-distance and international long-
distance (Embratel and one licensee). See "--Competition."
Until December 31, 2001, the four existing Public Regime concessionaires and
the new Private Regime licensees will be the only companies authorized to
offer local, intra-regional long-distance, interregional long-distance and
international long-distance services. Beginning January 1, 2002, the
Telecommunications Regulations require Anatel to end this period of
exclusivity and authorize new licensees wishing to offer such services. See
"--Competition."
Non-fixed Services--Private Regime--Concessions. The Band A and Band B
cellular companies are in the Private Regime. Pursuant to the Minimum Law and
the Telecommunications Law, the cellular companies in Band A and Band B have
been granted concessions. Each cellular concession is a specific grant of
authority to operate cellular services, subject to certain obligations
contained in the List of Obligations. If a cellular company wishes to offer
any telecommunications service other than the cellular service authorized by
its concession, it may apply to Anatel for a license to offer such other
services. See "--Non-fixed Services--Private Regime--Licenses."
Each cellular concession has been granted for an initial period of 15 years,
subject to renewal for further periods of 15 years if the List of Obligations
contained in a concession has been met. The Band A cellular concessions did
not require the payment of a fee. Terms of payment for renewal of the Band A
and Band B cellular concessions have not yet been established.
Currently, there is a limit on the number of cellular companies. One company
may operate in Band A and one company in Band B for each cellular region.
Under the cellular concessions, Anatel may not authorize additional providers
of cellular service until December 31, 1999.
Non-fixed Services--Private Regime--Licenses. Except for cellular service,
for which no new licenses may be granted until December 31, 1999, licenses may
be granted to any company wishing to offer telecommunications services in the
Private Regime. Licensees are not subject to the same obligations as Public
Regime concessionaires, although individual licenses may contain certain
obligations.
21
<PAGE>
OBLIGATIONS OF TELECOMMUNICATIONS COMPANIES
Providers of telecommunications services are subject to certain obligations
contained in the List of Obligations of their concessions and licenses. The
four providers of telecommunications services in the Public Regime are subject
to a set of special restrictions regarding the services they may offer,
contained in the Plano Geral de Outorgas ("General Plan of Concessions and
Licenses"), and special obligations regarding service quality, network
expansion and modernization contained primarily in the Plano Geral de Metas de
Qualidade ("General Plan on Quality") and the Plano Geral de Metas de
Universalizacao ("General Plan on Universal Service"). These restrictions and
obligations are also contained in the concessions of the four companies,
particularly in the List of Obligations.
Public Regime--Service Restrictions. Under the General Plan on Concessions
and Licenses, Embratel and the regional fixed-line companies are prohibited
from offering certain basic fixed-line telecommunications services until they
fulfill the List of Obligations as described below. Embratel is prohibited
from offering local or cellular services and the regional fixed-line companies
are prohibited from offering cellular, interregional long-distance and
international long-distance services. Anatel is required, some time after the
privatization is effected, to grant Embratel the right to enter the market for
full intra-regional long-distance service, including service within the
states, as a competitor to the regional fixed-line companies and to grant the
fixed-line companies the right to offer interstate intra-regional long-
distance service, which they were not authorized to offer in the past.
The General Plan of Concessions and Licenses provides certain incentives to
encourage Embratel and the three regional fixed-line companies to fulfill the
service quality, network expansion and modernization obligations contained in
the List of Obligations quickly. Under the General Plan of Concessions and
Licenses, the progress of Embratel and the regional fixed-line companies
towards attaining their List of Obligations will be measured annually by
Anatel. Two measuring dates, December 31, 2001 and December 31, 2003, are of
particular importance (the "2001 Targets" and the "2003 Targets"). See tables
in "--Network Expansion--General Plan on Universal Service" and "Quality of
Service--General Plan on Quality." In the period before the 2001 Targets are
measured, Anatel will regularly monitor the progress of Embratel and the
regional fixed-line companies and communicate with them. If they fail to meet
the 2001 Targets, Anatel may, at its discretion, revoke their concessions. If
they meet the 2001 Targets, they may continue to operate. In the period before
the 2003 Targets are measured, Anatel will regularly monitor the progress of
the four companies and communicate with them. If Embratel and the regional
fixed-line companies meet the 2003 Targets, the restrictions on the services
the four companies may offer will be eliminated and the companies will be
allowed to apply for licenses to offer any other service. In addition, if, in
its review for the 2001 Targets, Anatel finds that any of the four companies
has met the 2003 Targets, Anatel will immediately eliminate the restrictions
on the telecommunications services that company may offer. Anatel may also
eliminate the restrictions on a date other than the official measuring dates
of December 31, 2001 and December 31, 2003 if it finds that a company has met
the 2003 Targets. Failure to meet the 2003 Targets could result in revocation
of the Concession.
In order to attract new entrants and ensure competition, there are also
certain restrictions on alliances, joint ventures, mergers and acquisitions
involving Public Regime concessionaires, including:
. A concessionaire is prohibited from holding more than 20 percent of the
equity in any other concessionaire
. Concessionaires offering different services in the Public Regime in
either the same or different regions are prohibited from offering
services jointly
. Concessionaires offering the same service in the Public Regime in
different regions are prohibited from offering services jointly
. Mergers between fixed-line regional companies and cellular companies are
prohibited
. Companies offering telephony services are prohibited from offering cable
television
Anatel has not yet determined whether the restrictions under its control
will expire in the future or under what conditions they would expire.
22
<PAGE>
Network Expansion--General Plan on Universal Service. Under the General Plan
on Universal Service, the regional fixed-line companies are required to expand
switched, fixed-line service to cover the entire national territory of Brazil
in accordance with the List of Obligations. Embratel is also subject to the
universal service requirement of providing access to direct-dial interregional
and international long-distance service by installing public telephones in
remote regions and isolated communities. Since universal service requirements
are restricted to the provision of switched, fixed-line basic telephony
services, formal universal service requirements do not apply to cellular
companies, although the cellular companies are subject to certain similar
requirements under the cellular List of Obligations and certain cellular
regulations, including obligations to expand their networks and to provide
cellular services without pricing discrimination within customer categories.
Universal service will be financed through two primary mechanisms: (a) the
normal capital expenditure budgets of Embratel and the regional fixed-line
companies, and (b) a universal service fund.
Embratel and the regional fixed-line companies are themselves responsible
for financing their universal service obligations of network expansion from
their own revenues. No subsidies or other supplemental financing is
anticipated to finance the network expansion obligations contained in the List
of Obligations. However, the General Plan on Universal Service allows Anatel
to waive the network expansion requirements once a company succeeds in meeting
the 2001 Target for maximum waiting time for installation of a line of four
weeks. If a regional fixed-line company fails to meet its obligations in a
particular region, Anatel may grant licenses to competing companies to provide
the service and may compel the regional fixed-line company to make its network
available for the competitor's use.
The Telecommunications Law also provides for a universal service fund to
contribute to the costs of providing universal service. While the exact nature
of the universal service fund is not yet known, a bill has been submitted to
the Congress that states that if a company, after meeting its universal
service obligations, finds that it cannot operate a certain service in a
certain region at a profit, the company may apply to receive a subsidy from
the universal service fund--for costs incurred beyond costs necessary to meet
its obligations-- to ensure that it covers its costs in providing the service.
23
<PAGE>
The following table sets forth the network expansion and modernization
obligations of the Company as stated in the List of Obligations for the period
1999-2005 and the Company's status with respect to each obligation as of
December 31, 1997.
NETWORK EXPANSION AND MODERNIZATION
<TABLE>
<CAPTION>
COMPANY STATUS BY DECEMBER 31,
AS OF DECEMBER 31, -------------------------------------
1997 1999 2000 2001 2002 2003 2004 2005
------------------ ----- ----- ----- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Minimum total number of
installed lines in
million................ 3.6 4.7 5.3 5.9 -- -- -- --
Fixed switched service
fully available if
population greater
than:.................. n.a.(1) -- -- 1,000 -- 600 -- 300
Maximum waiting time for
installation of a line
(in weeks)............. 65(4) -- -- 4 3 2 1 1
Minimum number of public
telephones in service
(in thousands)......... 86.8 114.4 142.0 169.0 -- -- -- --
Public telephones per
1,000 inhabitants...... 3.12 -- -- -- -- 7.5 -- 8.0
Minimum ratio of public
telephones to fixed
terminals (%).......... 2.4 2.5 2.5 2.5 2.5 2.5 2.7 3.0
Minimum digitalization
level (% of network)... 74 75 -- 85 -- 95 -- 100
Maximum distance to a
public telephone
(meters)(2)............ n.a.(1) 800 -- 500 -- 300 -- --
Full-service public
telephone availability
as a % of total number
of public telephones:
international long-
distance(3).......... n.a.(1) 25 -- -- -- -- -- --
local and domestic
long-distance(3)..... n.a.(1) 50 -- -- -- -- -- --
in areas with no fixed
switched service (# of
inhabitants).......... n.a.(1) 1000 -- 600 -- 300 -- 100
</TABLE>
- --------
(1) Not available; the Company did not historically measure its performance
against this criterion.
(2) Applies only to areas where fixed switched service is fully available.
(3) Public telephones available 24 hours a day with direct-dial capability.
(4) Represents average waiting time for installation of a line. The Company
does not have information measuring maximum waiting time for installation
of a line.
Quality of Service--General Plan on Quality. The General Plan on Quality
contains a series of service quality obligations that are incorporated into
the List of Obligations of Embratel and each regional fixed-line company.
These include attainment of certain targets such as reducing average dial tone
delay, achievement of certain call completion rates for local, intra-regional
long-distance, and interregional and international long-distance calls,
reducing average operator assistance delay, reducing trouble reports per 100
lines, reducing average time of repair, reducing average time of installation,
increasing billing accuracy, and achieving certain customer satisfaction
levels for public payphones, residential telephony and nonresidential
telephony.
24
<PAGE>
The following table sets forth the quality of service obligations of the
Company as stated in the List of Obligations for the period 1999-2005 and the
Company's status with respect to each obligation as of December 31, 1997.
QUALITY OF SERVICE
<TABLE>
<CAPTION>
COMPANY STATUS
AS OF (BY DECEMBER 31,)
DECEMBER 31, -------------------
1997 1999 2001 2003 2005
-------------- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Dial tone within 3 seconds (% of cases).... 99(1) 98 99 99.5 --
Call completion rate during peak periods (%
of calls attempted)(2).................... 57 60 65 70 --
Maximum busy circuit rate during peak
periods(2) (% of calls attempted)......... 5 6 5 4 --
Maximum monthly repair requests per line... .03 .03 .025 .02 .015
Maximum monthly public telephone repair
requests per line......................... .32 .15 .12 .10 .08
Residential repair response speed (% within
24 hours)(3).............................. 89(6) 95 96 97 98
Nonresidential repair response speed (%
within 8 hours)(4)........................ 89(6) 95 96 97 98
Public telephone repair response speed (%
within 8 hours)........................... 88(7) 95 96 97 98
Operator availability during peak periods
(% answer/within 10 seconds).............. 86 92 93 94 95
Billing inaccuracy (inaccurate bills per
100 bills)(5)............................. .7 .4 .3 .2 --
Credit issued within one billing cycle for
claimed inaccuracies (% of cases)......... -- 95 96 97 98
</TABLE>
- --------
(1) As of December 31, 1995, the most recent date at which this was measured.
(2) For local and domestic long-distance calls.
(3) Must always be within 48 hours.
(4) Must always be within 24 hours.
(5) A bill is considered inaccurate for this purpose if a customer claims it
is inaccurate.
(6) Includes residential and nonresidential. In 1997, the Company had a single
measurement for both residential and nonresidential repair response.
(7) Response within 24 hours; the Company did not historically measure its
performance against the 8-hour standard.
Failure to meet both network expansion and modernization obligations and the
quality of service obligations in the List of Obligations may result in fines
and penalties of up to R$50,000,000 as well as potential revocation of the
Company's Concession. The Company's ability to meet the obligations in the
List of Obligations will depend upon certain factors outside its control.
While there can be no assurances, the Company believes that it will be able to
meet these requirements.
Interconnection. Interconnection is mandatory between all telecommunications
networks upon request by any party. Interconnection tariffs are subject to a
price-cap established by Anatel. Rates below the applicable price-cap may be
negotiated between the parties. If a company offers an interconnection tariff
below the price-cap, it must offer that price to any other requesting party on
a nondiscriminatory basis.
Anatel has stated that it does not expect to grant parties requesting
interconnection the right to co-locate their equipment at this time. Co-
location means that a party requesting interconnection may place its switching
equipment in or near the local exchange of the network operator whose network
the requesting party wishes to use and connect to the network at this point of
presence. Co-location is currently a matter of negotiation between the
parties.
Anatel does not currently mandate unbundling of network elements and
services by the providers of such elements and services, although Anatel has
stated that it plans to review the issue on a regular basis and may introduce
unbundling in the future. In an unbundled regime, every network operator is
required to provide a detailed list of network services and elements which may
be purchased by a party requesting interconnection
25
<PAGE>
and the requesting party then has the right to select and purchase a subset of
the network elements and services available.
Number Portability. Number portability is the ability of a customer to move
to a new home or office or switch service providers while retaining the same
telephone number. Full number portability is mandatory within a local area.
RATE REGULATION
General. In May 1997, a tariff rebalancing was implemented pursuant to which
monthly subscription charges and measured service charges for all customers
increased, while domestic and international long-distance rates were lowered.
In addition, the previous mechanism for financing the installation of new
lines (auto-financing), which required customers to purchase shares of
Telebras, was eliminated and replaced with a flat installation charge. With
retroactive effect as of April 1, 1998, the regime used to divide domestic and
international long-distance revenues between Embratel and the regional fixed-
line companies was replaced with a network usage fee for interconnection such
as already existed for use of cellular networks by the fixed-line companies
and for use of the fixed networks by cellular operators. In addition to the
network usage charge, Embratel is also required to pay a supplemental per-
minute charge called Parcela Adicional de Transicao ("PAT") that supplements
the network usage charge. Embratel is the only company that is required to pay
PAT charges. Embratel will be required to pay PAT charges for three years,
after which time the PAT charges will be phased out.
Price-Caps. Concessions with the regional fixed-line companies and Embratel,
including the Concession with the Company, provide for a price-cap mechanism
to set and adjust rates on an annual basis. The price-cap mechanism consists
of a maximum amount, or price-cap, stipulated by Anatel, that may be charged
for a particular service and on a weighted average rate for a basket of basic
services. The services include all of the services in the basic service plan,
such as installation charges, monthly subscription fees, switched local
service, intra-regional long-distance, interregional long-distance and
international long-distance service, as well as public telephone service and
interconnection charges, including network usage fees. The main baskets for
the regional fixed-line companies are for local services, including
installation charges, the monthly subscription fee, and measured usage
charges, and for interconnection services, including network usage fees and
equipment rental charges. The main baskets for Embratel are interregional
long-distance, international long-distance and interconnection.
The initial price-cap established by Anatel in the Concession is based on
the previously existing tariffs. The initial price-cap will be adjusted on an
annual basis under a formula contained in the Concession. The formula allows
two adjustments to the price-cap. First, the price-cap is revised upward to
reflect increases in inflation by multiplying the price-cap by (1+1(y)), where
y represents the rate of inflation as measured by the Indice Geral de Precos--
Disponibilidade Interna ("IGP-DI"), an inflation index developed by the
Fundacao Getulio Vargas, a private Brazilian economic research organization.
Second, the inflation-adjusted price-cap is adjusted downward to ensure
productivity gains by multiplying the inflation-adjusted price-cap by (1-X),
where X represents a set productivity factor (the "X-factor").
In order to provide an incentive to Embratel and the regional fixed-line
companies to increase their efficiency and to reward consumers of
telecommunications services, Anatel applies an X-factor representing annual
productivity adjustments to the tariffs of Embratel and the regional fixed-
line companies. In the period 1998 to December 31, 2005, the tariffs of
Embratel and the regional fixed-line companies will be adjusted downward as
follows:
<TABLE>
<CAPTION>
X-FACTOR ANNUAL PRODUCTIVITY
ADJUSTMENTS
---------------------------------------
1998 1999 2000 2001 2002 2003 2004 2005
---- ---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Fixed-line companies--local and intra-
regional long-distance............... 0% 0% 0% 0% 2% 2% 4% 4%
Fixed-line companies--interconnec-
tion................................. 10% 10% 10% 10% 10% 15% 15% 15%
Embratel- interregional long-dis-
tance................................ 2% 2% 2% 4% 4% 4% 5% 5%
Embratel- international long-dis-
tance................................ 5% 5% 5% 7% 7% 7% 10% 10%
</TABLE>
26
<PAGE>
The price-cap covers a basket of basic services. While the weighted average
tariff for the entire basket may not exceed the price-cap, the tariffs for
individual services within the basket may be increased. The Company may
increase the tariff for any individual service by up to 5%, subject to a
downward adjustment for inflation effects already captured in the annual
upward adjustments of the overall price-cap for the basket, so long as it
adjusts other prices downward to ensure that the weighted average tariff does
not exceed the price-cap.
The Company may also offer alternative plans in addition to the basic
service plan. For instance, a customer might wish to choose an alternative
plan that allows unlimited calling for a set fee rather than pay the per-
minute fee under the basic service plan. Alternative plans must be submitted
to Anatel for approval, but are not currently subject to a price-cap.
For information on the Company's current tariffs and service plans, see "--
Rates."
Installation Charges. Installation charges for connection to the fixed-line
telephone network have been reduced to a maximum flat rate of R$80 for all
customers, both residential and nonresidential as of October 1997. All
regional fixed-line companies are subject to this maximum for installation
uniformly in every local calling area throughout Brazil. Local areas include
those areas currently connected to the fixed-line network and correspond
largely to urban areas. Customers outside of the local areas must negotiate
the price of installation with the Company. Currently, the Company is charging
an installation charge of R$50, rather than R$80. This fee replaces the
autofinancing mechanism which had been in place, which required customers to
purchase shares in Telebras. See "--Rates--Local Services."
Monthly Subscription Charges. Residential and nonresidential customers must
pay a monthly access fee for connection to the fixed-line telephone network.
There are currently three levels of monthly access fees in Brazil, R$10, R$15
and R$20, excluding taxes, depending on customer characteristics, with all
residential customers paying R$10 and most business customers paying R$15. See
"--Rates--Local Services."
Measured Service Charges. Users of local service, both residential and
nonresidential, pay for local calls depending on usage. Usage is measured in
pulses. Pulses occur system-wide every four minutes for local calls. These
system-wide pulses are recorded independently of when individual calls are
actually made. In addition to system-wide pulses, the system records one
individualized pulse for every call when the call is connected. After the
first individualized pulse, only system-wide pulses are used in determining
the charge for a call. The result of this system is that, while the time
between the second and every subsequent pulse is always in increments of four
minutes, the time between the first (individualized) pulse and the second
(system-wide) pulse may vary. For example, the time between the first
(individualized) pulse and the second (system-wide) pulse may vary between one
second and four minutes.
For normal weekday calls, local call charges are determined by multiplying
the number of pulses by the charge per pulse. For calls being made any day
between midnight and 6:00 a.m., in addition to Saturdays from 2:00 p.m. to
midnight and all day Sunday and holidays, a caller is charged for only one
pulse regardless of the duration of a call.
All users of local service currently receive 90 free pulses per month as
part of their monthly subscription, equivalent to about 140 minutes per month
in the case of an average user. Through the tariff rebalancing of May 1997,
measured usage charges increased by approximately 61%. See "--Rates--Local
Services."
Anatel has stated that, as a consequence of its tariff restructuring in May
1997, cross-subsidies among various telecommunication services have been
largely eliminated.
Intra-Regional Long-Distance. Users of service pay differing rates for local
measured service and intra-regional long-distance service. Intra-regional
long-distance consists of interurban calls originating and terminating within
the calling area of a regional fixed-line company. The Company is allowed to
carry such calls entirely over its own network. When it does so, the Company
receives all of the revenues from such calls. As
27
<PAGE>
part of the May 1997 tariff rebalancing, intra-regional long-distance rates
were lowered, with an effective reduction of approximately 20%. Intra-regional
calls are billed based on the duration of a call and distance. There are
currently 20 intra-regional long-distance tariffs based on combinations of
four day/time categories and five distance categories. Certain intra-regional
long-distance calls are made within an area code and are measured in pulses.
For a breakdown of the Company's current intra-regional long-distance
tariffs, see "--Rates--Intra-Regional Long-Distance Service."
Network Usage Charges. Other telecommunications companies wishing to
interconnect with and use the Company's network--primarily to gain access to
the Company's customers for call origination and completion--must pay certain
fees, primarily a network usage fee. In addition, other telecommunications
operators rent equipment, such as trunk lines, from the Company for use within
their own internal networks. Fees for network usage and equipment rental are
subject to price-caps stipulated by Anatel.
The price-cap for the network usage fee specified by Anatel varies from
company to company based on the underlying cost characteristics of each
company's network. The fee is a flat fee charged per minute of use which
represents an average charge for a basket of network elements and services.
Embratel, the cellular companies and any future new entrants into the market
must pay the network usage fee if they access end customers via the network of
a regional fixed-line company. In practical terms, even though the network
usage fee includes the costs of a variety of network elements and services,
the network usage fee primarily reflects the use of certain facilities of the
Company for which Embratel and the cellular companies do not have adequate
substitutes, particularly the local loop between local exchanges and end
customers. Anatel has stated that Embratel is likely to be the primary
provider of network usage fees since it will need to use at least the local
loop to access end customers for the provision of long-distance service and
since Embratel is under an obligation to provide universal long-distance
service.
In the past, the Company shared revenues for interstate and international
long-distance calls with Embratel rather than charging Embratel a network
usage fee for the use of the Company's network. Under this system, the Company
retained a fixed percentage of the revenues associated with such calls and
paid the balance of the revenues associated with such calls to Embratel. This
system was replaced with retroactive effect as of April 1, 1998 with the
interconnection charge regime that had already been in place for
interconnection of the Company's network with cellular networks, under which
the Company charges for connection to its network and usage of its network.
The total level of interconnection charges in the future is likely to depend
greatly on the interconnection regime adopted by Anatel and how it is
enforced. See "--Obligations of Telecommunications Companies--
Interconnection."
BRAZILIAN POLITICAL ENVIRONMENT
The Brazilian political environment was marked by high levels of uncertainty
after the country returned to civilian rule in 1985, ending 20 years of
military government. The death of a President-elect in 1985 and the
resignation of another President in the midst of impeachment proceedings in
1992, as well as rapid turnover at and immediately below the cabinet level,
adversely affected the implementation of consistent economic and monetary
policies, including consistent policies in the areas of government-owned
enterprises and telecommunications.
Mr. Fernando Henrique Cardoso, the Finance Minister at the time of
implementation of Brazil's latest economic stabilization plan (the "Real
Plan"), was elected President of Brazil in October 1994 and took office in
January 1995. He has generally sought to continue the economic stabilization
and liberalization policies he had developed as Finance Minister from May 1993
through April 1994. Although some important groups remain
28
<PAGE>
opposed to significant elements of his program and the implementation of
policies of economic stabilization and liberalization is subject to
significant compromises and accommodations, President Cardoso is the leader of
a coalition of political parties that represents a majority of the federal
Congress. His party controls the state governments of the States of Sao Paulo,
Rio de Janeiro and Minas Gerais, and his policies have broad political
support.
Elections will be held in October of 1998 in which the President, Vice-
President, state Governors and the members of the Chamber of Deputies, as well
as one third of the members of the Senate, will be elected. The outcome of
these elections could have a strong impact on whether the economic reforms of
the Cardoso administration can continue. Although the Brazilian Constitution
was amended in June 1997 so as to permit President Cardoso to run for a second
term in office, there can be no assurance that President Cardoso will be re-
elected and, more generally, there can be no assurance that the political
consensus in favor of the economic reform program pursued by the Cardoso
administration can or will be sustained following the elections.
BRAZILIAN ECONOMIC ENVIRONMENT
The financial condition and results of operations of the Company are
dependent on general economic conditions in Brazil, and in particular on (i)
economic growth and its impact on demand for telecommunications services, (ii)
the cost and availability of financing and (iii) exchange rates between
Brazilian and foreign currencies.
For many years, the Brazilian economy was extremely volatile, and the
Federal Government implemented a succession of programs intended to stabilize
the economy and provide a basis for sustainable, non-inflationary growth. The
Company was affected by economic instability and by such programs in a variety
of ways, particularly when they have resulted in contractions in demand or
very high real interest rates or prevented the Company from raising rates to
keep pace with the rate of inflation.
Until the introduction of the Real Plan, measures by the Federal Government
intended to influence the course of Brazil's economy, such as changes in
monetary, credit, tariff and other policies, were frequent and occasionally
drastic. See "Exchange Controls and Other Limitations Affecting Security
Holders." In particular, actions to control inflation, interest rates or
consumption included freezing bank accounts, imposing capital controls,
introducing high tariffs and other strong measures. Changes in policy, social
instability and other political and economic developments, and the Brazilian
government's responses to such developments, not infrequently have had a
material adverse effect on the Company's business, financial condition and
results of operations.
Beginning in December 1993, the Federal Government introduced the Real Plan,
an economic stabilization program intended to reduce the rate of inflation by
reducing certain public expenditures, collecting liabilities owed to the
Federal Government, increasing tax revenues, continuing to privatize
government-owned entities and introducing a new currency. The real was
introduced as Brazil's currency on July 1, 1994, based on a new unit of
account, the URV, introduced earlier in the year. Since taking office in
January 1995, President Cardoso has continued to implement the Real Plan. The
real generally appreciated through January 1995 and thereafter gradually
declined in value against the dollar, reaching R$1.1164 to US$1.00 at December
31, 1997. Under the Real Plan, the rate of inflation has decreased
significantly and there has been sustained growth in real gross domestic
product. See "--Inflation and Devaluation." Notwithstanding the success of the
Real Plan in lowering inflation and stabilizing the Brazilian economy, the
Real Plan also led to an economic slowdown, a rise in unemployment in some
regions and specific sectors of the economy, and adversely impacted certain
sectors of the economy.
Beginning in August 1998, following the devaluation of the Russian Ruble,
Brazil has experienced substantial capital outflows, significant declines in
its stock markets and speculative attacks on the Brazilian currency. In
response, the Federal Government has raised interest rates and stated that it
will continue to support the value of the real and to abide by the principles
inherent in the Real Plan. Previously, in the fourth quarter of
29
<PAGE>
1997, Brazil experienced a financial crisis following the financial and
economic crisis in Asia. In response, the Federal Government adopted several
economic measures to protect the Real Plan and the stability of the Brazilian
currency. These measures included (i) an increase in interest rates, including
a near doubling of short-term interest rates, (ii) an increase in certain tax
rates, (iii) a reduction in Federal Government spending for 1998 and (iv)
restrictions on imports. Government policies to control inflation and to
reduce budget and trade deficits could also result in further actions that
could slow or halt Brazilian economic growth. It is not possible to foresee
how measures like these will affect the business, financial condition and
results of operations of the Company.
Brazil's trade deficit for 1997 increased to US$8.37 billion compared to
US$5.54 billion for 1996. There can be no assurance that the Federal
Government will not introduce credit restrictions to subdue domestic demand in
order to reduce the trade deficit, nor that any such credit restrictions will
not have a material adverse effect on the business, operations, financial
condition or results of operations of the Company. A continuing increase in
the trade deficit would substantially reduce Brazil's approximately US$50.8
billion of reserves at December 31, 1997 and could negatively affect Brazil's
economic development as a whole.
PRIVATIZATION
The Federal Government, directly or through various state-owned enterprises,
owns many companies and controls a major portion of activities in the mining
and oil and gas sectors. Most of the energy production and postal services
companies are directly or indirectly controlled by the Federal Government.
To reduce its participation in the economy, the Federal Government has
engaged in the privatization of certain state enterprises. The objectives of
the privatization program are (i) to reduce the role of the state in the
economy and allocate more resources to social investment, (ii) to reduce
public sector debt, (iii) to encourage increased competition and thereby raise
the standards and efficiency of Brazilian industry and (iv) to strengthen the
capital markets and promote wider share ownership. As originally presented the
Real Plan contemplated constitutional amendments which would permit private
participation in the state-controlled petroleum and telecommunications sectors
and in other areas that had constitutionally mandated monopolies, such as
pipeline distribution of gas and the shipping industry. These amendments were
approved by Congress in 1995. A council directly subordinate to the President,
the Conselho Nacional de Privatizacao (the "Privatization Council") and BNDES
are responsible for administering the privatization program.
As of December 31, 1996, a total of 52 state enterprises or divisions
thereof had been privatized, and several minority interests held by Federal
Government companies had been sold for nominal consideration totaling US$13.7
billion (including payment made in Brazilian currency and payment made by
means of qualified debt instruments issued to the federal government, its
agencies and state-controlled companies). To date, the privatizations have,
for the most part, been effected through share auctions conducted on Brazil's
stock exchanges. Although the majority of such share auctions have been
successful, there have been instances in which a share auction has failed due
to a lack of bidders. Privatization revenues for 1997 exceeded $26.0 billion.
Some of the Brazilian states, such as Sao Paulo, Minas Gerais, Pernambuco,
Paraiba and Maranhao are also conducting privatization programs in relation to
state services.
Brazilian labor unions have opposed certain of the privatization measures
proposed by the Federal Government, but the Federal Government has, to date,
been able to move forward with its program despite such opposition.
DEVELOPMENTS IN OTHER EMERGING MARKET COUNTRIES; BRAZILIAN AUSTERITY PROGRAM
The Brazilian securities markets are, to varying degrees, influenced by
economic and market conditions in other emerging market countries. Although
economic conditions are different in each country, investors' reactions to
developments in one country can have an effect on the securities of issuers in
other countries, including Brazil. For example, since the fourth quarter of
1997, the international financial markets have experienced significant
volatility, and a large number of financial market indices, including those in
Brazil, have
30
<PAGE>
declined significantly. The current market volatility in Latin America and
other emerging market countries' securities markets has also been attributed,
at least in part, to the effects of the Asian economic crisis. There can be no
assurance that the Brazilian securities markets will not continue to be
affected negatively by events elsewhere, especially in emerging markets, or
that such events will not adversely affect the value of the ADSs.
In reaction to the growing market volatility in Asia, the Federal Government
implemented several measures intended to curtail the outflow of foreign
investment, as Central Bank reserves were reduced from U.S.$61.2 billion in
September 1997 to U.S.$52.9 billion by the end of October 1997. On October 30,
1997, the Central Bank raised the benchmark interest rate from 20.7% to 43.4%,
in order to retain investment funds in the country. On November 10, 1997 the
Federal Government presented a series of fiscal measures aimed at reducing the
budget deficit and bolstering economic conditions. The measures included
certain tax increases, eliminations of budget expenses and reductions in
available fiscal incentives. The package of measures was intended to produce a
savings of R$20 billion, due to the decrease in expenses and the increase in
revenue. These fiscal measures have been substantially implemented.
Constitutional reforms affecting civil servants and social security have also
been accelerated and may result in lower Government deficits. However, there
can be no assurance that such measures will be successful in protecting the
Federal Government's present currency exchange rate policy and price stability
program.
Additionally, the decrease in economic activity caused by the increase in
interest rates and the fiscal measures may have substantial negative effects
on companies doing business in Brazil. Projected GDP growth for Brazil for
1998 has been reduced from approximately 4% to approximately 1%. It is
expected that these events may have the effect of reducing the purchasing
power of Brazilian consumers in general. Since the increase in interest rates,
the Central Bank has gradually reduced its benchmark interest rate, setting
its rates at 40.9% on December 1, 1997, at 38.0% on January 2, 1998, at 34.5%
on January 29, 1998, at 28.0% on March 5, 1998 and at 21.8% on May 20, 1998,
at 21.0% on June 25, 1998 and at 19.75% on July 29, 1998. However, there can
be no assurance that a decrease in interest rates will not cause further
investment outflows.
Events in Asia also may affect the competitiveness of Brazilian exports. In
addition, the proceeds from scheduled privatizations may not reach expected
levels, in which case the current account deficit would cause a deterioration
in foreign reserves, adversely affecting the currency exchange rate policy.
INFLATION AND DEVALUATION
Brazil experienced extremely high and generally unpredictable rates of
inflation and of devaluation of Brazilian currency for many years until the
implementation of the Real Plan. Inflation itself, as well as certain
governmental measures to combat inflation, and public speculation about
possible future actions have also historically contributed to economic
uncertainty in Brazil and to heightened volatility in the Brazilian securities
markets. The following table sets forth Brazilian inflation, as measured by
the UFIR for 1995 and the IGP-M for 1996-1998, and the devaluation of the
Brazilian currency against the U.S. dollar for the periods shown.
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31, FIRST QUARTER SECOND QUARTER
-------------- ENDED MARCH 31, ENDED JUNE 30,
1995 1996 1997 1998 1998
---- ---- ---- --------------- --------------
(IN PERCENTAGES)
<S> <C> <C> <C> <C> <C>
Inflation (UFIR for 1995; IGP-M
for 1996-1998)................. 22.5 9.2 7.7 1.3 1.8
Devaluation (Brazilian currency
vs. US$)....................... 15.0 6.9 7.4 1.9 3.6
</TABLE>
Since the introduction of the Real Plan in July 1994, the rate of inflation
has decreased considerably. As measured by the IGP-M, the rate of inflation
was 7.7% for 1997 and 1.3% for the first quarter of 1998. Despite this
reduction, the rate of inflation remains high compared to other countries, and
the potential for distortions or dislocations attributable to changing prices
continues to exist. The exchange rate between the real and the U.S. dollar has
also been relatively stable since early July 1994, compared to prior periods,
although the potential for devaluation or volatility persists. See "Exchange
Rates."
31
<PAGE>
ITEM 2: DESCRIPTION OF PROPERTY
The principal properties of the Company consist of transmission plants
(including outside plant and trunk lines), exchange equipment and switching
equipment. The Company's land and buildings principally consist of its
telephone exchanges and other technical, administrative and commercial
properties. Exchanges include local exchanges, "toll" exchanges that connect
local exchanges to long-distance transmission facilities and "tandem"
exchanges that connect local exchanges with each other and with toll
exchanges.
The Company's properties are located throughout the states of Acre,
Rondonia, Goias, Tocantins, Mato Grosso, Mato Grosso do Sul, Parana, and Santa
Catarina, as well as in the Distrito Federal and in a small area of the State
of Rio Grande do Sul. The buildings used by the Company's management are
primarily located in the capital cities of these states. At March 31, 1998,
the Company utilized 3,169 properties, of which 3,032 sites were owned by the
Company.
At December 31, 1997, equipment related to switching stations represented
approximately 25.12%, other equipment represented 35.95%, construction in
progress represented approximately 14.45%, buildings represented approximately
12.31% and other fixed assets represented approximately 12.17% of the net book
value of the Company's total fixed assets. At December 31, 1997, the net book
value of the Company's property, plant and equipment was R$6,444.5 million.
ITEM 3: LEGAL PROCEEDINGS
The Breakup of Telebras is subject to several lawsuits in which the
plaintiffs have requested, and in certain cases obtained, preliminary
injunctions against the Breakup. All of these preliminary injunctions have
been quashed by decisions of the relevant Federal Court, although several of
such decisions are currently on appeal. If any such appeal is successful, the
shareholders of Telebras will be required to reapprove the Breakup or other
legislative action may be required.
The lawsuits to which the Breakup has been subjected are based on a number
of legal theories, the principal among which are that (i) Brazil's
Constitution requires that the creation of the twelve New Holding Companies be
specifically authorized by the Telecommunications Law--the Breakup is not so
authorized; (ii) the shareholders' meeting of Telebras held on May 22, 1998
which approved the Breakup was not properly convened; (iii) national
sovereignty will be threatened if the country's telecommunications companies
are controlled by foreign entities; and (iv) the Telecommunications Law
requires that certain matters, such as the entry of new competitors and the
administration of development and technology funds, be regulated prior to the
Breakup and privatization either by an executive order of the President or by
an act of Congress. If any of the plaintiffs in the above-described lawsuits
ultimately prevails, the Breakup will have to be reinitiated. This could
require, depending upon the prevailing plaintiff's theory, any combination of
(i) amendment of the Telecommunications Law, (ii) reconvening the May 22, 1998
Telebras shareholders' meeting and (iii) the passage of additional laws by
Congress or issuance of executive orders by the President. It is theoretically
possible under Brazilian law for a court to require that the Breakup be
unwound, although the Company believes that this would not be likely to occur.
The Company is a party to certain legal proceedings arising in the normal
course of business, including civil, administrative, tax, social security and
labor proceedings. The aggregate amount involved in such lawsuits is
approximately R$600.9 million. The Company has provided for or deposited in
court amounts to cover its estimated losses due to adverse legal judgments. In
the opinion of management, such actions, if decided adversely to the Company,
would not have a material adverse effect on the Company's business and
financial condition.
Telebras is the legal predecessor of the Registrant and is a defendant in a
number of legal proceedings and subject to certain other claims and
contingencies.
Under the terms of the Breakup, liability for any claims arising out of acts
committed by Telebras prior to the effective date of the Breakup remains with
Telebras, except for labor and tax claims (for which Telebras and
32
<PAGE>
the New Holding Companies are jointly and severally liable) and any liability
for which specific accounting provisions have been assigned to the Registrant
or one of the other New Holding Companies. Creditors of Telebras may challenge
this allocation of liability until September 14, 1998. Management of the
Company believes that the chances of any such claims materializing and having
a material adverse financial effect on the Company are remote.
ITEM 4: CONTROL OF REGISTRANT
Of the Company's two classes of capital stock outstanding, only the Common
Shares have full voting rights. The Preferred Shares have voting rights under
limited circumstances. See "Description of Securities to be Registered--
Capital Stock--Voting Rights." Solpart owns 51.8% of the Common Shares.
Accordingly, Solpart has the ability to control the election of the Company's
Board of Directors and the direction and future operations of the Company.
The following table sets forth information concerning the ownership of
Common Stock by Solpart and by the Company's officers and directors as a
group. The Company is not aware of any other shareholder owning more than
10.0% of the Common Shares.
<TABLE>
<CAPTION>
NUMBER OF PERCENTAGE OF
COMMON OUTSTANDING
NAME OF OWNER SHARES OWNED COMMON SHARES
------------- -------------- -------------
<S> <C> <C>
Solpart.......................................... 64,405,151,125 51.79%
All directors and executives officers as a group
(15 persons).................................... 31,402 0.00%
</TABLE>
The following is a brief description of the shareholders of Solpart.
TECHOLD PARTICIPACOES S.A. Techold is a subsidiary of Invitel S.A., a
company owned by (i) the following Brazilian pension funds: SISTEL--Fundacao
Sistel Seguridade Social, TELOS--Fundacao Embratel de Seguridade Social,
FUNCEL--Fundacao dos Economiarios Federais; PETROS--Fundacao Petrobras de
Seguridade Social and PREVI--Caixa de Previdencia dos Funcionarios do Banco do
Brasil and (ii) Opportunity Zain S.A., whose shareholders are the investment
funds and the companies controlled by the Opportunity Group. The Opportunity
Group is an investment and management group, whose activities include money
management and private equity in Brazil.
STET INTERNATIONAL NETHERLANDS N.V. Stet is part of a group headed by
Telecom Italia (BC) S.p.A. ("Telecom Italia"). Telecom Italia is the world's
seventh largest fixed-line telecommunications operator, with approximately
25.7 million installed fixed lines. It also provides, through its subsidiary
TIM (Telecom Italia Mobile), mobile telecommunications services worldwide to
more than 10.9 million subscribers. It also provides leased lines, data
communication services, satellite communications services and IT software
services, develops and manufactures telecommunications equipment and installs
telecommunications networks. Telecom Italia intends to selectively expand its
presence in key telecommunications markets outside Italy, focusing on Latin
America and Europe, through the acquisition of interests in existing fixed and
mobile service providers as well as of newly available license rights. It has
made investments in fixed and mobile service providers in Argentina, Chile,
Bolivia, Brazil, Cuba, Spain, France, Greece, Austria, the Czech Republic,
Serbia, China and India. Telecom Italia is also a participant in the consortia
that acquired control of two other New Holding Companies: Tele Celular Sul
Participacoes S.A. and Tele Nordeste Participacoes S.A.
TIMEPART PARTICIPACOES LTDA. Timepart is a holding company owned by
Teleunion S.A., Tizitel Investimentos S.A. and Telecom Holding S.A.
SHAREHOLDERS' AGREEMENT
On July 19, 1998, Techold Participacoes S.A. ("Techold"), STET International
Netherlands N.V. ("STET") and Timepart Participacoes Ltda. ("Timepart")
entered into a Shareholders' Agreement (the "Agreement"), which governs their
respective rights and obligations with respect to their shareholdings in the
Registrant. The Agreement provides for the formation of a new company, Solpart
Participacoes S.A.
33
<PAGE>
("Solpart"), for the purposes of holding the investment in and supervising the
activities of the Registrant. Techold, STET and Timepart each own 19%, 19% and
62%, respectively, of the common stock of Solpart and 62%, 38% and 0%,
respectively, of the preferred stock of Solpart. The Agreement provides for
(i) rules for the management of Solpart; (ii) a right of first offer, rights
of first refusal and tag along rights for STET; (iii) rights of first refusal
for Techold with respect to the sale of STET's shares; and (iv) the
implementation of an Initial Business Plan of the Registrant.
The Agreement specifically provides that if Techold and/or Timepart (the
"Selling Parties") seek to sell a majority of Solpart's common shares and
preferred shares, STET may exercise a right of first offer with respect to all
the shares held by the Selling Parties. In addition, STET has rights of first
refusal with respect to a third party offer from (i) a telecommunications
competitor at a price equal to or below STET's offer price plus 15% thereof
("premium price") or (ii) a nontelecommunications competitor. STET's tag along
rights may be exercised if (i) the third party purchase price is greater than
the premium price and the third party purchaser is a telecommunications
competitor or (ii) in the event that the proposed sale of shares to a
telecommunications competitor when added to all other previous transfers of
shares by the Selling Parties would equal 10% or more of either the common
shares or preferred shares, or both, being transferred.
ITEM 5: NATURE OF TRADING MARKET
There has never been a trading market for the Common Shares, the Preferred
Shares or the ADSs. The common shares and preferred shares of Tele Centro
Sul's operating subsidiaries Telepar and Telebrasilia have traded on the Bolsa
de Valores de Sao Paulo (the "Sao Paulo Stock Exchange"), the Bolsa de Valores
do Rio de Janeiro (the "Rio de Janeiro Stock Exchange") and the seven other
Brazilian stock exchanges (together with the Sao Paulo Stock Exchange and the
Rio de Janeiro Stock Exchange, the "Brazilian Stock Exchanges") since May 18,
1998. Prior to that date, Telepar and Telebrasilia shares traded on such
exchanges as units with shares of the newly formed cellular companies formed
upon the spin-off of such Subsidiaries' cellular telephone businesses. Prior
to the spin-off of the Subsidiaries' cellular operations, common shares and
preferred shares of Telepar and Telebrasilia traded on the Brazilian Stock
Exchanges. Management believes that the market prices of shares of Telepar and
Telebrasilia and units comprised of separate cellular and fixed-line business
shares of the Subsidiaries and the newly formed cellular companies are not
indicative of the eventual market price, if any, of the Preferred Shares.
The table below sets forth the high and low closing prices, in nominal
reais, for a thousand shares of Telepar and Telebrasilia on the Sao Paulo
Stock Exchange for the periods indicated.
<TABLE>
<CAPTION>
PRICES PER 1,000
PREFERRED SHARES OF
TELEPAR(1)
-------------------
HIGH LOW
-------------------
(IN NOMINAL REALS)
<S> <C> <C>
May 18, 1998 through May 31, 1998.......................... R$480.00 R$228.00
June 1, 1998 through June 30, 1998......................... R$ 248.00 R$ 175.00
July 1, 1998 through July 31, 1998......................... R$ 272.60 R$ 190.00
August 1, 1998 through September 16, 1998.................. R$279.00 R$ 75.00
</TABLE>
- --------
(1) Share prices are for Telepar, a subsidiary of the Registrant, and not for
the Registrant itself.
<TABLE>
<CAPTION>
PRICES PER 1,000
PREFERRED SHARES OF
TELEBRASILIA(1)
-------------------
HIGH LOW
-------------------
(IN NOMINAL REALS)
<S> <C> <C>
May 18, 1998 through May 31, 1998.......................... R$ 440.00 R$191.00
June 1, 1998 through June 30, 1998......................... R$ 234.89 R$ 199.00
July 1, 1998 through July 31, 1998......................... R$ 225.00 R$ 190.00
August 1, 1998 through September 16, 1998.................. R$155.00 R$141.00
</TABLE>
- --------
(1) Share prices are for Telebrasilia, a subsidiary of the Registrant, and not
for the Registrant itself.
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<PAGE>
The preferred shares of each of the New Holding Companies, including the
Preferred Shares, have been traded together with the preferred shares of
Telebras as a unit on the Brazilian Stock Exchanges since the Breakup of the
Telebras System. Additionally, Telebras ADSs, each representing 1,000 Telebras
preferred shares and, since the Breakup, each also representing deemed
ownership of 1,000 preferred shares of each of the New Holding Companies, have
continued to trade on the NYSE.
On September 21, 1998, common shares and preferred shares of each New
Holding Company, including the Preferred Shares, will commence trading
separately on the Brazilian Stock Exchanges. It is expected that during or
before October 1998 American Depositary Shares representing preferred shares
of each New Holding Company will be issued and commence trading separately on
the NYSE. The ADSs, each representing 1,000 Preferred Shares of the
Registrant, will be issued to the holders of Telebras ADSs pursuant to a
Deposit Agreement (the "Deposit Agreement") among the Registrant, The Bank of
New York as Depositary (the "Depositary") and the holders of the ADSs from
time to time. See "Description of Securities to be Registered--Description of
American Depositary Receipts in respect of Preferred Shares."
Application to list the Preferred Shares on the Brazilian Stock Exchanges
has been granted subject to distribution of the Preferred Shares and trading
on the Brazilian Stock Exchanges is expected to commence on September 21,
1998. Application has been made to list the ADSs on the NYSE upon issuance
under the symbol TCS. Prices at which the Preferred Shares and the ADSs may
trade cannot be predicted. There can be no assurance that an active trading
market for the Preferred Shares in Brazil or for the ADSs in the United States
or elsewhere will develop or be sustained.
TRADING ON THE BRAZILIAN STOCK EXCHANGES
Of Brazil's nine stock exchanges, the Sao Paulo Stock Exchange and the Rio
de Janeiro Stock Exchange are the most significant. During 1997, the Sao Paulo
Stock Exchange accounted for approximately 93% of the trading value of equity
securities on all Brazilian stock exchanges, and the Sao Paulo Stock Exchange
and the Rio de Janeiro Stock Exchange together accounted for approximately 99%
of the trading value of equity securities on all Brazilian stock exchanges.
Each Brazilian stock exchange is a non-profit entity owned by its member
brokerage firms. Trading on each exchange is limited to member brokerage firms
and a limited number of authorized non-members. The Sao Paulo Stock Exchange
and the Rio de Janeiro Stock Exchange have two open outcry trading sessions
each day, from 10:00 a.m. to 1:00 p.m. and from 2:00 p.m. to 5:00 p.m. Trading
is also conducted during this time on an automated system on the Sao Paulo
Stock Exchange and on the National Electronic Trading System ("SENN"), a
computerized system that links the Rio de Janeiro Stock Exchange
electronically with the seven smaller regional exchanges. Market makers exist
on the Sao Paulo Stock Exchange, but are only authorized to make markets in
options for stock indices which are traded on that exchange and to engage in
transactions on META (Mercado de Empresas Teleassistidas), an electronic
trading system operating at the Sao Paulo Stock Exchange and permitting
trading in the securities of companies registered for that purpose. These
companies must appoint the market makers authorized to deal in their
securities. There are no specialists or market makers for the Company's shares
on the Sao Paulo Stock Exchange. The Comissao de Valores Mobiliarios (the
Brazilian Securities Commission or "CVM") and each of the Brazilian stock
exchanges have discretionary authority to suspend trading in shares of a
particular issuer under certain circumstances. Trading in securities listed on
the Brazilian stock exchanges may be effected off the exchanges in certain
circumstances, although such trading is very limited.
Settlement of transactions is effected three business days after the trade
date without adjustment of the purchase price for inflation. Payment for
shares is made through the facilities of separate clearinghouses for each
exchange, which maintain accounts for member brokerage firms. The seller is
ordinarily required to deliver the shares to the exchange on the second
business day following the trade date. The clearinghouse for the Sao Paulo
Stock Exchange is Calispa S.A., which is owned by the member brokerage firms.
The clearinghouse for the Rio
35
<PAGE>
de Janeiro Stock Exchange is CLC-Camara de Liquidacao e Custodia S.A., which
is 99% owned by that exchange.
At December 31, 1997, the aggregate market capitalization of the 536
companies listed on the Sao Paulo Stock Exchange was approximately R$285.0
billion. Substantially the same securities are listed on the Sao Paulo Stock
Exchange and on the Rio de Janeiro Stock Exchange. Although all the
outstanding shares of an exchange-listed company may trade on a Brazilian
stock exchange, in most cases less than half of the listed shares are actually
available for trading by the public, the remainder being held by small groups
of controlling persons that rarely trade their shares. This is particularly
true in the case of mixed-capital companies, such as the Company before the
privatization, of which more than half of the voting shares must by law be
owned by Brazilian governmental entities. For this reason, data showing the
total market capitalization of Brazilian stock exchanges tend to overstate the
liquidity of the Brazilian equity securities market.
Although the Brazilian equity market was Latin America's largest in terms of
market capitalization, it is relatively small and illiquid compared to major
world markets. In 1997, the combined daily trading volumes on these two
exchanges averaged approximately R$945.4 million. In 1997, the five most
actively traded issues represented approximately 72.9% of the total trading in
the cash market on the Sao Paulo Stock Exchange and approximately 50.5% of the
total trading in the cash market on the Rio de Janeiro Stock Exchange.
Trading on Brazilian stock exchanges by nonresidents of Brazil is subject to
certain limitations under Brazilian foreign investment legislation. See
"Description of Securities to be Registered."
REGULATION OF BRAZILIAN SECURITIES MARKETS
The Brazilian securities markets are regulated by the CVM, which has
authority over stock exchanges and the securities markets generally, and by
the Central Bank of Brazil, which has, among other powers, licensing authority
over brokerage firms and regulates foreign investment and foreign exchange
transactions. The Brazilian securities market is governed by Law No. 6,385
dated December 7, 1976, as amended (the "Brazilian Securities Law"), and the
Brazilian Corporation Law.
Under the Brazilian Corporation Law, a company is either public, a
"companhia aberta," such as the Company, or private, a "companhia fechada."
All public companies are registered with the CVM and are subject to reporting
requirements. A company registered with the CVM may have its securities traded
either on the Brazilian stock exchanges or in the Brazilian over-the-counter
("Brazilian OTC") market. The shares of a public company, including the
Company, may also be traded privately, subject to certain limitations. To be
listed on the Brazilian stock exchanges, a company must apply for registration
with the CVM and the stock exchange where the head office of the company is
located. Once this stock exchange has admitted a company to listing and the
CVM has accepted its registration as a public company, its securities may be
traded on all other Brazilian stock exchanges.
Trading in securities on the Brazilian stock exchanges may be suspended at
the request of a company in anticipation of a material announcement. Trading
may also be suspended on the initiative of a Brazilian stock exchange or the
CVM, among other reasons, based on or due to a belief that a company has
provided inadequate information regarding a material event or has provided
inadequate responses to inquiries by the CVM or the relevant stock exchange.
The Brazilian Securities Law provided for, among other things, disclosure
requirements, restrictions on insider trading and price manipulation, and
protection of minority shareholders. However, the Brazilian securities markets
are not as highly regulated and supervised as the United States securities
markets or markets in certain other jurisdictions.
36
<PAGE>
ITEM 6: EXCHANGE CONTROLS AND OTHER LIMITATIONS AFFECTING SECURITY HOLDERS
There are no restrictions on ownership of Preferred Shares or Common Shares
of the Registrant by individuals or legal entities domiciled outside Brazil.
Until the Registrant was privatized, it was subject to provisions of
Brazilian corporate law applicable to mixed-capital companies under Brazilian
law. These provisions ceased to apply after the Registrant was privatized. As
a mixed-capital company, the Registrant was not subject to bankruptcy and the
Federal Government was contingently liable for the obligations of the
Registrant for so long as its assets were encumbered and attached. However,
substantial limitations applied to the attachment or sale of assets of the
operating subsidiaries of the Registrant that were used to provide
telecommunications services pursuant to the Company's concession. Similarly,
the sale of shares representing voting control of operating subsidiaries
providing public telecommunications services was subject to government
authorization. The sale of preferred shares of operating subsidiaries, or of
assets not used to provide telecommunications services, was not subject to
these restrictions.
The right to convert dividend payments and proceeds from the sale of shares
into foreign currency and to remit such amounts outside Brazil is subject to
restrictions under foreign investment legislation which generally requires,
among other things, that the relevant investments have been registered with
the Central Bank of Brazil. Such restrictions on the remittance of foreign
capital abroad may hinder or prevent Banco Itau S.A. (the "Custodian"), as
custodian for the Preferred Shares represented by ADSs, or holders who have
exchanged ADRs for Preferred Shares from converting dividends, distributions
or the proceeds from any sale of such Preferred Shares, as the case may be,
into U.S. dollars and remitting such U.S. dollars abroad. Holders of ADSs
could be adversely affected by delays in, or refusal to grant any, required
government approval for conversions of Brazilian currency payments and
remittances abroad of the Preferred Shares underlying the ADSs.
Under Annex IV to Resolution No. 1,289 of the National Monetary Council, as
amended (the "Annex IV Regulations"), qualified foreign investors (which
principally include foreign financial institutions, insurance companies,
pension and investment funds, charitable foreign institutions and other
institutions that (i) seek to invest in financial markets and (ii) meet
certain minimum capital and other requirements) registered with the CVM and
acting through authorized custody accounts managed by local agents may buy and
sell shares on Brazilian stock exchanges without obtaining separate
Certificates of Registration for each transaction. Investors under the Annex
IV Regulations are also entitled to favorable tax treatment. See "Taxation--
Brazilian Tax Considerations." Resolution No. 1,927 of the National Monetary
Council, which is the restated and amended Annex V to Resolution No. 1,289 of
the National Monetary Council (the "Annex V Regulations"), provides for the
issuance of depositary receipts in foreign markets in respect of shares of
Brazilian issuers. The ADS program will be approved under the Annex V
Regulations by the Central Bank of Brazil and the CVM prior to the issuance of
the ADSs. Accordingly, the proceeds from the sale of ADSs by ADR holders
outside Brazil are free of Brazilian foreign investment controls and holders
of the ADSs will be entitled to favorable tax treatment. See "Taxation--
Brazilian Tax Considerations."
A Certificate of Registration will be issued in the name of the Depositary
with respect to the ADSs prior to the issuance of the ADSs and will be
maintained by the Custodian on behalf of the Depositary. Pursuant to the
Certificate of Registration, the Custodian and the Depositary are able to
convert dividends and other distributions with respect to the Preferred Shares
represented by ADSs into foreign currency and remit the proceeds outside
Brazil. In the event that a holder of ADSs exchanges such ADSs for Preferred
Shares, such holder will be entitled to continue to rely on the Depositary's
Certificate of Registration for five business days after such exchange,
following which such holder must seek to obtain its own Certificate of
Registration with the Central Bank of Brazil. Thereafter, any holder of
Preferred Shares may not be able to convert into foreign currency and remit
outside Brazil the proceeds from the disposition of, or distributions with
respect to, such Preferred Shares, unless such holder (i) qualifies under the
Annex IV Regulations or (ii) obtains its own Certificate of Registration, and
in the case of (ii), it will be subject to less favorable Brazilian tax
treatment than a holder of ADSs. See "Taxation--Brazilian Tax Considerations."
37
<PAGE>
Under current Brazilian legislation, the Federal Government may impose
temporary restrictions on remittances of foreign capital abroad in the event
of a serious imbalance or an anticipated serious imbalance of Brazil's balance
of payments. For approximately six months in 1989 and early 1990, the Federal
Government froze all dividend and capital repatriations held by the Central
Bank of Brazil that were owed to foreign equity investors, in order to
conserve Brazil's foreign currency reserves. These amounts were subsequently
released in accordance with Federal Government directives. The imbalance in
Brazil's balance of payments increased during 1997, and there can be no
assurance that the Federal Government will not impose similar restrictions on
foreign repatriations in the future.
ITEM 7: TAXATION
The following summary contains a description of the principal Brazilian and
U.S. federal income tax consequences of the acquisition, ownership and
disposition of Preferred Shares or ADSs, but it does not purport to be a
comprehensive description of all the tax considerations that may be relevant
to a decision to purchase Preferred Shares or ADSs. The summary is based upon
the tax laws of Brazil and regulations thereunder and on the tax laws of the
United States and regulations thereunder as in effect on the date hereof,
which are subject to change. This summary is also based upon the
representations of the Depositary and on the assumption that each obligation
in the Deposit Agreement relating to the ADRs and any related documents will
be performed in accordance with its terms. PROSPECTIVE PURCHASERS OF PREFERRED
SHARES OR ADSs SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO THE TAX
CONSEQUENCES OF THE ACQUISITION, OWNERSHIP AND DISPOSITION OF PREFERRED SHARES
OR ADSs.
Although there is at present no income tax treaty between Brazil and the
United States, the tax authorities of the two countries have had discussions
that may culminate in such a treaty. No assurance can be given, however, as to
whether or when a treaty will enter into force or how it will affect the U.S.
holders of Preferred Shares or ADSs. Prospective holders of Preferred Shares
or ADSs should consult their own tax advisors as to the tax consequences of
the acquisition, ownership and disposition of Preferred Shares or ADSs in
their particular circumstances.
BRAZILIAN TAX CONSIDERATIONS
The following discussion summarizes the principal Brazilian tax consequences
of the acquisition, ownership and disposition of Preferred Shares or ADSs by a
holder that is not domiciled in Brazil for purposes of Brazilian taxation and,
in the case of a holder of Preferred Shares, that has registered its
investment in Preferred Shares with the Central Bank of Brazil as a U.S.
dollar investment (in each case, a "non-Brazilian holder"). It is based on
Brazilian law as currently in effect. Any change in such law may change the
consequences described below. The following discussion summarizes the
principal tax consequences applicable under current Brazilian law to non-
Brazilian holders of Preferred Shares or ADSs; it does not specifically
address all of the Brazilian tax considerations applicable to any particular
non-Brazilian holder, and each non-Brazilian holder should consult his or her
own tax advisor concerning the Brazilian tax consequences of an investment in
Preferred Shares or ADSs.
TAXATION OF DIVIDENDS
Dividends, including dividends paid in kind, paid by the Company (i) to the
Depositary in respect of the Preferred Shares underlying the ADSs or (ii) to a
non-Brazilian holder in respect of Preferred Shares will generally not be
subject to Brazilian withholding tax in the case of distributions of profits
earned as from January 1, 1996. Stock dividends relating to profits generated
prior to December 31, 1995 are not subject to withholding tax in Brazil unless
the stock is redeemed by the Company within five years from such distribution
or the non-Brazilian holder sells the stock in Brazil within such five-year
period.
Brazil has entered into tax treaties with several countries. However, there
is currently no tax treaty between the United States and Brazil. The only
Brazilian tax treaty now in effect that, if certain conditions are met, would
38
<PAGE>
reduce the rate of the withholding tax on dividends in respect of profits
generated prior to December 31, 1995 below the generally applicable 15% rate
is the treaty with Japan, which would reduce such rate to 12.5% under the
circumstances stated in such treaty.
TAXATION OF GAINS
Gains realized outside Brazil by a non-Brazilian holder on the disposition
of ADSs to another non-Brazilian holder are not subject to Brazilian tax.
The withdrawal of Preferred Shares in exchange for ADSs is not subject to
Brazilian tax. The deposit of Preferred Shares in exchange for ADSs is not
subject to Brazilian tax provided that the Preferred Shares are registered
under the Annex IV Regulations. In the event the Preferred Shares are not so
registered, the deposit of Preferred Shares in exchange for ADSs may be
subject to Brazilian capital gains tax at the rate of 10% or 15% as described
below. On receipt of the underlying Preferred Shares, a non-Brazilian holder
who qualifies under the Annex IV Regulations will be entitled to register the
U.S. dollar value of such shares with the Central Bank of Brazil as described
below under "--Registered Capital."
Non-Brazilian holders are not subject to tax in Brazil on gains realized on
sales of Preferred Shares that occur abroad or on the proceeds of a redemption
of, or a liquidating distribution with respect to, Preferred Shares. As a
general rule, non-Brazilian holders are subject to a withholding tax imposed
at a rate of 15% on gains realized on sales or exchanges of Preferred Shares
that occur in Brazil to or with a resident of Brazil outside of a Brazilian
stock exchange. Non-Brazilian holders are generally subject to a withholding
tax at a rate of 10% on gains realized on sales or exchanges in Brazil of
Preferred Shares that occur on a Brazilian stock exchange but will not be
subject to tax if either such a sale is made within five business days of the
withdrawal of such Preferred Shares in exchange for ADSs and the proceeds
thereof are remitted abroad within such five-day period, or such a sale is
made under the Annex IV Regulations by certain qualified institutional non-
Brazilian holders that register with the CVM. Gains realized by an investor
under the Annex IV Regulations are not subject to tax, provided certain
conditions are met. The "gain realized" is the difference between the amount
in Brazilian currency realized on the sale or exchange and the acquisition
cost, measured in Brazilian currency without any correction for inflation, of
the shares sold. The "gain realized" as a result of a transaction with respect
to shares registered as an investment with the Central Bank of Brazil (and not
subject to the Annex IV Regulations) will be calculated based on the foreign
currency amount registered with the Central Bank of Brazil. There can be no
assurance that the current preferential treatment for holders of ADSs and non-
Brazilian holders of Preferred Shares under the Annex IV Regulations will not
be changed. Reductions in the tax rate provided for by Brazil's tax treaties
do not apply to tax on gains realized on sales or exchanges of Preferred
Shares.
Any exercise of preemptive rights relating to the Preferred Shares or ADSs
will not be subject to Brazilian taxation. Any gain on the sale or assignment
of preemptive rights relating to the Preferred Shares by the Depositary will
not be subject to Brazilian taxation.
DISTRIBUTIONS OF INTEREST ON NET WORTH
In accordance with Law No. 9,249, dated December 26, 1995, Brazilian
corporations may make payments to shareholders characterized as distributions
of interest on the Company's net worth. Such interest is limited to the
Federal Government's long-term interest rate (the "TJLP") as determined by the
Central Bank of Brazil from time to time (10.63% per annum for the three-month
period starting June 1, 1998), and cannot exceed the greater of (i) 50% of net
income (before taking such distribution and any deductions for income taxes
into account) for the period in respect of which the payment is made or (ii)
50% of retained earnings.
Distributions of interest on net worth in respect of the Preferred Shares
paid to shareholders who are either Brazilian residents or non-Brazilian
residents, including holders of ADSs, are subject to Brazilian withholding tax
at the rate of 15% (except for interest due to the Federal Government, which
is exempt from tax withholding) and shall be deductible by the Registrant for
purposes of the Corporate Income Tax ("IRPJ") and Social
39
<PAGE>
Contribution on Profit ("CSLL") (both of which are levied on the Company's
profits) as long as the payment of a distribution of interest is approved in
the Registrant's annual shareholders' meeting. The amount of distributions of
interest on net worth will be determined by the Board of Directors of the
Registrant. No assurance can be given that the Board of Directors of the
Registrant will not determine that future distributions of profits will be
made by means of interest on net worth instead of by means of dividends.
Under Brazilian law and regulations, the amount paid to shareholders as
interest on net worth (net of any withholding tax) may be treated as payment
in lieu of the Mandatory Dividend and Preferred Dividend (as defined under
"Description of Securities to be Registered--Capital Stock--Dividends"). In
addition, any Brazilian corporation distributing interest on net worth is
obligated to distribute to shareholders an amount sufficient to ensure that
the net amount received (after payment of withholding taxes) is at least equal
to the Mandatory Dividend.
Distributions of interest on net worth in respect of the Preferred Shares,
including to holders of ADSs, may be converted into U.S. dollars and remitted
outside of Brazil to U.S. holders, subject to relevant exchange restrictions.
See "Description of Securities to be Registered--Capital Stock--Payment of
Dividends" and "--Description of American Depositary Receipts in respect of
Preferred Shares--Dividends, Other Distributions and Rights."
OTHER BRAZILIAN TAXES
There are no Brazilian inheritance, gift or succession taxes applicable to
the ownership, transfer or disposition of Preferred Shares or ADSs by a non-
Brazilian holder except for gift and inheritance taxes levied by some States
in Brazil on gifts made or inheritances bestowed by individuals or entities
not resident or domiciled in Brazil or in the revelant State to individuals or
entities that are resident or domiciled within such State in Brazil. There are
no Brazilian stamp, issue, registration, or similar taxes or duties payable by
holders of Preferred Shares or ADSs.
Pursuant to Decree 2,219 dated May 2, 1997,a financial transaction tax (the
"IOF") may be imposed on the conversion into Brazilian currency of the
proceeds of a foreign investment in Brazil (including investments in Preferred
Shares and ADSs and investments made under the Annex IV Regulations) and may
also be imposed upon the conversion of Brazilian currency into foreign
currency (e.g., for purposes of paying dividends and interest). The IOF tax
rate is currently 0%. Although the Minister of Finance has the legal power to
increase the rate to a maximum of 25%, any such increase will be applicable
only to transactions occurring after such increase becomes effective.
On January 24, 1997, a temporary tax was enacted. The Contribuicao
Provisoria sobre Movimentacao Financeira ("CPMF Tax"), which was created by
Constitutional Amendment No. 12 of August 16, 1996 and regulated by Law No.
9,311 of October 24, 1996, is levied on debits on bank accounts and certain
other payments made by a bank at a rate of 0.2%, which may be raised at any
time to 0.25%. The CPMF Tax was initially scheduled to be collected until
February 22, 1998; the CPMF Tax was subsequently extended until January 27,
1999 by Law No. 9,539 of December 12, 1997.
REGISTERED CAPITAL
The amount of an investment in Preferred Shares held by a non-Brazilian
holder who qualifies under the Annex IV Regulations and obtains registration
with the CVM, or by the Depositary representing such holder, is eligible for
registration with the Central Bank of Brazil; such registration (the amount so
registered is referred to as "Registered Capital") allows the remittance
outside Brazil of foreign currency, converted at the Commercial Market Rate,
acquired with the proceeds of distributions on, and amounts realized with
respect to disposition of, such Preferred Shares. The Registered Capital for
each Preferred Share purchased in the form of an ADS, or purchased in Brazil,
and deposited with the Depositary in exchange for an ADS, will be equal to its
purchase price (in U.S. dollars) to the purchaser. The Registered Capital for
a Preferred Share that is withdrawn upon
40
<PAGE>
surrender of an ADS will be the U.S. dollar equivalent of (i) the average
price of the Preferred Share on the Brazilian stock exchange on which the
greatest number of Preferred Shares was sold on the day of withdrawal, or (ii)
if no Preferred Shares were sold on that day, the average price on the
Brazilian stock exchange on which the greatest number of Preferred Shares were
sold in the fifteen trading sessions immediately preceding such withdrawal.
The U.S. dollar value of the Preferred Shares is determined on the basis of
the average Commercial Market Rates quoted by the Central Bank of Brazil on
such date (or, if the average price of Preferred Shares is determined under
clause (ii) of the preceding sentence, the average of such average quoted
rates on the same fifteen dates used to determine the average price of the
Preferred Shares).
A non-Brazilian holder of Preferred Shares may experience delays in
effecting such registration, which may delay remittances abroad. Such a delay
may adversely affect the amount, in U.S. dollars, received by the non-
Brazilian holder.
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The statements regarding U.S. tax law set forth below are based on U.S. law
as in force on the date of this Registration Statement, and changes to such
law subsequent to the date of this Registration Statement may affect the tax
consequences described herein. This summary describes the principal tax
consequences of the ownership and disposition of Preferred Shares or ADSs, but
it does not purport to be a comprehensive description of all of the tax
consequences that may be relevant to a decision to hold or dispose of
Preferred Shares or ADSs. This summary applies only to purchasers of Preferred
Shares or ADSs who will hold the Preferred Shares or ADSs as capital assets
and does not apply to special classes of holders such as dealers in securities
or currencies, holders whose functional currency is not the U.S. dollar,
holders of 10% or more of the shares of the Registrant, tax-exempt
organizations, financial institutions, holders liable for the alternative
minimum tax, securities traders who elect to account for their investment in
Preferred Shares or ADSs on a mark-to-market basis, and persons holding
Preferred Shares or ADSs in a hedging transaction or as part of a straddle or
conversion transaction.
Each holder should consult such holder's own tax advisor concerning the
overall tax consequences to it, including the consequences under foreign,
state and local laws, of an investment in Preferred Shares or ADSs.
In this discussion, references to "ADSs" also refer to Preferred Shares,
references to a "U.S. holder" are to a holder of an ADS (i) that is a citizen
or resident of the United States of America, (ii) that is a corporation
organized under the laws of the United States of America or any state thereof,
or (iii) that is otherwise subject to U.S. federal income taxation on a net
basis with respect to the ADS.
For purposes of the U.S. Internal Revenue Code of 1986, as amended (the
"Code"), holders of ADRs will be treated as owners of the ADSs represented by
such ADRs.
TAXATION OF DIVIDENDS
A U.S. holder will recognize ordinary dividend income for U.S. federal
income tax purposes in an amount equal to the amount of any cash and the value
of any property distributed by the Registrant as a dividend to the extent that
such distribution is paid out of the Registrant's current or accumulated
earnings and profits ("e&p"), as determined for U.S. federal income tax
purposes, when such distribution is received by the Custodian or by the U.S.
holder, in the case of a holder of Preferred Shares. To the extent that such a
distribution exceeds the Registrant's e&p, it will be treated as a non-taxable
return of capital, to the extent of the U.S. holder's tax basis in the ADS (or
Preferred Shares, as the case may be), and thereafter as capital gain. The
amount of any distribution will include the amount of Brazilian tax withheld
on the amount distributed and the amount of a distribution paid in reais will
be measured by reference to the exchange rate for converting reais into U.S.
dollars in effect on the date the distribution is received by the Custodian or
by a U.S. holder, in the case of a holder of Preferred Shares. If the
Custodian or U.S. holder, in the case of a holder of Preferred Shares, does
not convert such reais into U.S. dollars on the date it receives them, it is
possible that the U.S. holder will recognize foreign currency loss or gain,
which would be ordinary loss or gain when the reais are converted into U.S.
dollars.
41
<PAGE>
Dividends paid by the Registrant will not be eligible for the dividends
received deduction allowed to corporations under the Code.
Distributions out of e&p with respect to the ADSs generally will be treated
as dividend income from sources outside of the United States and generally
will be treated separately along with other items of "passive" (or, in the
case of certain U.S. holders, "financial services") income for purposes of
determining the credit for foreign income taxes allowed under the Code.
Subject to certain limitations, the Brazilian withholding tax paid in
connection with any distribution with respect to the ADSs may be claimed as a
credit against the U.S. federal income tax liability of a U.S. holder if such
U.S. holder elects for that year to credit all foreign income taxes, or such
Brazilian withholding tax may be taken as a deduction. Under new rules enacted
by Congress in 1997 and other guidance recently released by the U.S. Treasury,
foreign tax credits will not be allowed for withholding taxes imposed in
respect of certain short-term or hedged positions in securities or in respect
of arrangements in which a U.S. holder's expected economic profit, after non-
U.S. taxes, is insubstantial. U.S. holders should consult their own tax
advisors concerning the implications of these rules in light of their
particular circumstances.
Distributions of additional shares to holders with respect to their ADSs
that are made as part of a pro rata distribution to all shareholders of the
Registrant generally will not be subject to U.S. federal income tax.
A holder of an ADS that is a foreign corporation or non-resident alien
individual (a "non-U.S. holder") generally will not be subject to U.S. federal
income tax or withholding tax on distributions with respect to ADSs that are
treated as dividend income for U.S. federal income tax purposes, and generally
will not be subject to U.S. federal income tax or withholding tax on
distributions with respect to ADSs that are treated as capital gain for U.S.
federal income tax purposes unless such holder would be subject to U.S.
federal income tax on gain realized on the sale or other disposition of ADSs,
as discussed below.
TAXATION OF CAPITAL GAINS
Upon the sale or other disposition of an ADS, a U.S. holder will recognize
gain or loss for U.S. federal income tax purposes in an amount equal to the
difference between the amount realized in consideration for the disposition of
the ADS (excluding the amount of any distribution paid to the Custodian but
not distributed by the Custodian prior to the disposition) and the U.S.
holder's tax basis in the ADS. Such gain or loss generally will be subject to
U.S. federal income tax and will be treated as capital gain or loss. Under
recently enacted legislation, long-term capital gains recognized by an
individual holder generally are subject to a maximum rate of 20 percent in
respect of property held for more than one year, effective for amounts
properly taken into account on or after January 1, 1998. The deductibility of
capital losses is subject to certain limitations. Gain realized by a U.S.
holder on a sale or disposition of ADSs generally will be treated as U.S.
source income. Consequently, in the case of a disposition of Preferred Shares
in Brazil (which, unlike a disposition of ADSs, would be taxable in Brazil),
the U.S. holder might not be able to use the foreign tax credit for Brazilian
tax imposed on gain.
A non-U.S. holder will not be subject to U.S. federal income tax or
withholding tax on gain realized on the sale or other disposition of an ADS
unless (i) such gain is effectively connected with the conduct by the holder
of a trade or business in the United States, or (ii) such holder is an
individual who is present in the United States of America for 183 days or more
in the taxable year of the sale and certain other conditions are met.
U.S. BACKUP WITHHOLDING AND INFORMATION REPORTING
The information reporting requirements of the Code generally will apply to
distributions to a U.S. holder. Distributions to non-U.S. holders generally
will be exempt from information reporting and backup withholding under current
law but a non-U.S. holder may be required to establish its non-U.S. status in
order to claim such exemption.
42
<PAGE>
ITEM 8: SELECTED FINANCIAL DATA
GENERAL
The following table presents selected consolidated financial information for
the Company as of and for the periods indicated. The information as of
December 31, 1996 and 1997 and for the three-year period ended December 31,
1997 is derived from and should be read in conjunction with, and is qualified
in its entirety by reference to, the Consolidated Financial Statements and the
Notes thereto included elsewhere in this Registration Statement. These
Consolidated Financial Statements have been audited by KPMG Peat Marwick,
independent auditors, and their report on such Consolidated Financial
Statements appears elsewhere in this Registration Statement. The Consolidated
Financial Statements are prepared in accordance with Brazilian GAAP, which
differ in certain material respects from generally accepted accounting
principles in the United States ("U.S. GAAP"). See Note 29 to the Consolidated
Financial Statements for a summary of the differences between Brazilian GAAP
and U.S. GAAP as of and for the years ended December 31, 1996 and 1997. All
other selected consolidated financial information has been derived from the
Company's accounting records.
The Consolidated Financial Statements present the financial condition and
results of operations of the Registrant and its Subsidiaries. The portion of
the consolidated equity and net income of the Subsidiaries attributable to
shareholders of the Subsidiaries other than Telebras at December 31, 1996 and
1997, and for each of the years in the three-year period ended December 31,
1997 is reflected as "minority interests" in the Consolidated Financial
Statements. At December 31, 1997, such minority shareholders directly and
indirectly owned the percentages of share capital in the Subsidiaries shown in
"Presentation of Financial Information."
The Consolidated Financial Statements present the fixed-line
telecommunications business of the Registrant and its Subsidiaries, as
continuing operations and the cellular telephone business as discontinued
operations for all periods. The assets and liabilities of the cellular
telephone business are presented as net assets of discontinued operations.
The separation of the fixed and cellular telecommunications businesses has
been accounted as a reorganization of entities under common control in a
manner similar to a pooling of interests. The assets and liabilities of the
cellular telephone business were transferred from the Subsidiaries at their
indexed historical cost. The Consolidated Financial Statements are not
necessarily indicative of the financial position and results of operations
that would have occurred for the three-year period ended December 31, 1997 had
the fixed-line telecommunications businesses of the Subsidiaries been separate
legal entities during such period. See "Description of Business--Background,"
"--The Company" and Notes 1, 2 and 28 to the Consolidated Financial
Statements.
Prior to December 31, 1997 cash and certain non-specific debt of the
cellular telecommunications business could not be segregated from the
Subsidiaries. Accordingly, these amounts are included in the financial
statements for periods ended before January 1, 1998. As a result, certain
interest income and expense relating to the cellular telecommunications
business could not be identified and, consequently, income from discontinued
operations is presented before unallocated interest income (expense) and
income tax expense. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Results of Operations for the years ended
December 31, 1995, 1996 and 1997--Allocated and unallocated interest expense
and unallocated interest income."
Certain of the constant real-denominated information herein has been
translated into U.S. dollars using the December 31, 1997 Commercial Market
Rate published by the Central Bank of Brazil of R$1.1164 to US$1.00. These
translations are presented solely for the convenience of the reader and should
not be construed as implying that local currency amounts represent, or could
have been, or could be, converted into U.S. dollars at such rates or any rate.
The Consolidated Financial Statements and, unless otherwise specified, all
financial information included in this Registration Statement, have been
restated to recognize certain effects of inflation and expressed in constant
43
<PAGE>
reais of December 31, 1997 purchasing power. Such restatement has been
effected in accordance with Brazilian GAAP using the integral restatement
method (correcao integral) required by the CVM to be used for financial
statements of public corporations through December 31, 1995. Inflationary
gains or losses on monetary assets and liabilities have been allocated to
their corresponding income or expense caption in the income statement.
Inflationary gains or losses without a corresponding income or expense caption
have been allocated to other net operating income. See Note 2a to the
Consolidated Financial Statements.
Until December 31, 1995, the relevant inflation index selected by the CVM
and the one used for the constant currency method under Brazilian GAAP was the
UFIR. Effective January 1, 1996, the CVM no longer requires Brazilian
companies to restate their financial statements for reporting purposes is
constant currency by indexing historical amounts using the UFIR. Restatement
in constant currency is now optional and any general price index may be used.
The Brazilian Institute of Accountants has recommended that the IGP-M be used
for this purpose. The Company's management believes that the IGP-M is the most
appropriate measure of the general price inflation in Brazil and has elected
the IGP-M for purposes of preparing its consolidated financial statements in
accordance with the constant currency method as of January 1, 1996.
In July 1997, the three-year cumulative inflation rate for Brazil fell below
100%; however, for accounting purposes, the constant currency method has
continued to be applied. The Brazilian Institute of Accountants has not yet
published definitive rules regarding when the constant currency method of
accounting may no longer be used to prepare financial statements. If the
Brazilian Institute of Accountants determines that the constant currency
method may no longer be used to prepare financial statements beginning January
1, 1998, the restated balances of nonmonetary assets and liabilities of the
Company as of December 31, 1997 will become the new basis for accounting, and
income statement items will no longer be restated for inflation.
44
<PAGE>
SELECTED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------------------------------------
1993 1994 1995 1996 1997 1997
--------- --------- --------- ---------- ---------- ----------------
(IN THOUSANDS
(IN THOUSANDS OF CONSTANT OF U.S. DOLLARS,
REAIS OF DECEMBER 31, 1997, EXCEPT PER
EXCEPT PER SHARE DATA) SHARE DATA)(1)
<S> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Brazilian GAAP
Net operating revenue
from telecommunication
services............... 1,506,681 1,638,540 1,593,701 2,079,975 2,355,612 2,110,007
Cost of services........ (838,514) (954,183) (997,632) (1,111,096) (1,238,991) (1,109,809)
--------- --------- --------- ---------- ---------- ----------
Gross profit............ 668,167 684,357 596,069 968,879 1,116,621 1,000,198
Operating expenses...... 352,551 419,037 377,865 394,711 462,005 413,835
--------- --------- --------- ---------- ---------- ----------
Operating income from
continuing operations
before interest
income/expense......... 315,616 265,320 218,204 574,168 654,616 586,363
Allocated interest
expense(2)............. -- -- (17,697) (10,125) (34,864) (31,229)
--------- --------- --------- ---------- ---------- ----------
Operating income from
continuing operations
before unallocated
interest income
(expense)(2)(3)(4)..... 315,616 265,320 200,507 564,043 619,752 555,134
--------- --------- --------- ---------- ---------- ----------
Net non-operating income
(expense).............. (6,775) (4,134) (1,348) (16,433) (25,094) (22,478)
Employees' profit
share.................. (10,728) (6,037) (8,475) (17,068) (26,524) (23,759)
Income from continuing
operations before
unallocated interest
income (expense), taxes
and minority
interests.............. 298,113 255,149 190,684 530,542 568,134 508,897
Income from discontinued
cellular operations
before unallocated
interest income
(expense), tax and
minority
interests(2)(3)(4)..... -- -- 149,135 297,274 341,636 306,016
Unallocated interest
income(2)(3)(4)........ 34,435 31,076 40,418 60,612 61,913 55,458
Unallocated interest
expense(2)(3)(4)....... (78,618) (25,930) (3,678) (1,488) (2,870) (2,571)
--------- --------- --------- ---------- ---------- ----------
Income before taxes and
minority interests..... 253,930 260,295 376,559 886,940 968,813 867,800
Income and social
contribution taxes..... 263,587 (73,976) (164,519) (231,713) (266,949) (239,116)
--------- --------- --------- ---------- ---------- ----------
Income before minority
interests.............. 517,517 186,319 212,040 655,227 701,864 628,684
Minority interests(5)... (77,598) (28,335) (26,910) (92,925) (138,599) (124,148)
--------- --------- --------- ---------- ---------- ----------
Net income.............. 439,919 157,984 185,130 562,302 563,265 504,536
========= ========= ========= ========== ========== ==========
U.S. GAAP:
Income from continuing operations before unallocated
interest income (expense),
income taxes and minority interests ................. 609,848 657,449 588,901
Income from discontinued cellular operations before
unallocated interest income (expense),
income taxes and minority interests.................. 311,076 362,585 324,781
Net income............................................ 622,570 673,743 603,496
NET INCOME PER THOUSAND SHARES:
Common shares-Basic(6)................................ 1.94 2.10 1.88
Common shares-Diluted(6).............................. 1.71 1.98 1.77
Preferred shares-Basic(6)............................. 1.94 2.10 1.88
Preferred shares-Diluted(6)........................... 1.71 1.98 1.77
BALANCE SHEET DATA:
Brazilian GAAP
Property, plant and
equipment, net......... 4,674,742 5,027,354 5,401,864 5,963,131 6,444,519 5,772,590
Total assets............ 5,526,729 5,924,108 6,399,994 7,530,147 8,480,956 7,596,700
Loans and financing--
current portion........ 152,470 109,218 63,383 104,191 110,414 98,902
Loans and financing--
noncurrent portion..... 214,496 149,868 125,996 142,354 183,994 164,810
Shareholders' equity.... 4,211,484 3,916,200 4,348,528 4,968,654 5,410,826 4,846,673
U.S. GAAP
Property, plant and equipment, net.................... 5,620,157 6,050,932 5,420,039
Total assets.......................................... 7,373,460 8,295,309 7,430,409
Loans and financing--current portion.................. 91,002 168,659 151,074
Loans and financing--noncurrent portion............... 142,354 110,051 98,577
Shareholders' equity.................................. 5,035,215 5,328,212 4,772,673
<CAPTION>
MAY 22, 1998
----------------
(IN THOUSANDS OF
CONSTANT REAIS)
<S> <C> <C> <C> <C> <C> <C>
NEW HOLDING COMPANY--BRAZILIAN GAAP SHAREHOLDERS' EQUITY (7)
Share capital............................................................... 1,936,659
Income reserves............................................................. 1,791,424
Retained earnings........................................................... 1,394,352
----------
Total shareholders' equity................................................. 5,122,435
==========
</TABLE>
- --------
(1) The translation of Brazilian real amounts into U.S. dollar amounts is
unaudited and included solely for the convenience of readers outside of
Brazil and has been performed using the closing selling exchange rate
published by the Central Bank of Brazil of R$1.1164 to US$1.00 as of
December 31, 1997. This translation should not be construed as a
representation that Brazilian real amounts could be converted to U.S.
dollars at this or any other rate.
(2) Allocated interest expense represents interest income attributable to
continuing operations. As discussed in Note 3, as the Company is unable to
present cellular operations as discontinued operations for 1993 and 1994,
total interest income and expense has been presented as unallocated.
45
<PAGE>
(3) The Company is unable to present cellular operations as discontinued
operations for 1993 and 1994. Accordingly, cellular operations results for
1993 and 1994 are included in "Operating income from continuing
operations."
(4) Unallocated interest income and expense represents interest income and
expense that could not be allocated between continuing and discontinued
operations.
(5) Minority interests represent the portion of net income attributable to
shareholders other than Telebras.
(6) Reflects net income per thousand shares of the Registrant. The Registrant
was not formed until subsequent to December 31, 1997. Accordingly, the
equity structure utilized for the earnings per share computations is that
of the Registrant as of May 22, 1998 (the date of its formation). At the
date of formation, the Registrant had 124,351,903 thousand Common Shares
(net of 17,128 thousand common shares in treasury) and 196,311,647
thousand Preferred Shares outstanding (exclusive of 13,718,350 thousand
preferred shares resulting from the settlement in April 1998, with
Telebras). See Note 29(e) to the Consolidated Financial Statements.
In February 1997, the Financial Accounting Standards Board issued SFAS No.
128 "Earnings Per Share." This new statement became effective for financial
statements for periods ending after December 15, 1997, and provides
computation, presentation and disclosure requirements for earnings per
share.
Since the preferred and common stockholders have different dividend, voting
and liquidation rights, Basic and Diluted earnings per share have been
calculated using the "two-class" method. The "two-class" method is an
earnings allocation formula that determines earnings per share for preferred
and common stock according to the dividends to be paid as required by the
Company's by-laws and participation rights in undistributed earnings. Basic
earnings per share is computed by dividing income available to common and
preferred shareholders by the weighted-average number of common and
preferred shares outstanding, respectively, during the period. The weighted-
average number of Common and Preferred Shares used in computing basic
earnings per share for 1997 was 124,351,903 thousand and 196,311,647
thousand, respectively.
As explained in Note 23 to the Consolidated Financial Statements, the
Company has received expansion plan contributions from companies and
individuals wishing to be connected to the national telephone network and
has also sponsored Community Expansion Plan agreements. These activities are
dilutive in nature to the Shareholders of the Registrant, whether the shares
to be issued are those of the Subsidiaries (which will impact the minority
interest recognized) or of the Registrant itself. If subsidiary shares had
been issued historically, the reduction to net income and the increase in
net earnings allocated to minority shareholders for 1996 and 1997 would have
been approximately R$58,463 thousand and R$39,286 thousand, respectively.
Earnings per share has been presented for net income only since interest
income, certain interest expense and social contribution taxes have not been
allocated between income from continuing operations and income from
discontinued operations.
(7) On May 22, 1998 the shareholders of Telebras approved Telebras' division
into the New Holding Companies, whereby existing shareholders received
shares in the New Holding Companies in proportion to their holdings in
Telebras. In addition to approving the allocation of assets and
liabilities to the New Holding Companies at the May 22, 1998 meeting, the
shareholders also approved a specific structure for the shareholders'
equity of each New Holding Company which included an allocation of a
portion of the retained earnings of Telebras. Consequently, the amounts of
the balances of capital, reserves and retained earnings were established.
For US GAAP purposes, the "retained earnings" allocated from Telebras would
be referred to as Distributable Capital as this amount represents capital
allocated from Telebras. See Note 28 to the Consolidated Financial
Statements.
46
<PAGE>
ITEM 9: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion of the financial condition and results of
operations of the Company for the years ended December 31, 1995, 1996 and 1997
should be read in conjunction with the Consolidated Financial Statements of
the Company and the Notes thereto included elsewhere in this Registration
Statement. The Consolidated Financial Statements have been prepared in
accordance with Brazilian GAAP, which differs in certain significant respects
from U.S. GAAP. Note 29 to the Consolidated Financial Statements provides a
description of the principal differences between U.S. GAAP and Brazilian GAAP
as they relate to the Company, and a reconciliation to U.S. GAAP of net income
for the two years ended December 31, 1996 and 1997 and total shareholders'
equity as of December 31, 1996 and 1997.
FORMATION OF THE REGISTRANT AND PRESENTATION OF FINANCIAL INFORMATION
On May 22, 1998, in preparation for the privatization of the Telebras
System, the Telebras System was restructured to form, in addition to Telebras,
the twelve New Holding Companies. The restructuring of the Telebras System was
accomplished by means of a procedure under Brazilian law called cisao or
"split-up". Virtually all the assets and liabilities of Telebras were
allocated to the New Holding Companies which, together with their respective
subsidiaries, comprise (a) three regional fixed-line operators, (b) eight
regional cellular operators and (c) one domestic and international long-
distance operator. The Registrant is one of the New Holding Companies that was
formed on May 22, 1998 as part of the Breakup of Telebras. In the Breakup,
certain assets and liabilities of Telebras, including all of the share capital
in the Subsidiaries held in Telebras were transferred to the Registrant.
At the May 22, 1998 Telebras shareholders' meeting, the shareholders also
approved a specific structure for the shareholders' equity of each New Holding
Company, which included an allocation of a portion of the retained earnings of
Telebras. In this manner, the balances of capital, reserves and retained
earnings, together with the corresponding assets and liabilities, for the
formation of Tele Centro Sul Participacoes S.A. were established. Telebras
retained within its own shareholders' equity sufficient retained earnings from
which to pay certain dividends and other amounts. Telebras allocated to each
New Holding Company the balance of its retained earnings in proportion to the
total net assets allocated to each such Company. This value of allocated
retained earnings does not represent the historical retained earnings of the
New Holding Companies and resulted in an increase of R$204,689,000 in relation
to the Company's historical retained earnings. See Note 28 to the Consolidated
Financial Statements. Allocated retained earnings and future retained earnings
will be the basis from which future dividends will be payable.
The Consolidated Financial Statements present the financial condition and
results of operations of the Registrant and its Subsidiaries. The portion of
the equity and net income of the Subsidiaries attributable to shareholders of
the Subsidiaries other than Telebras at December 31, 1996 and 1997, and for
each of the years in the three-year period ended December 31, 1997 is
reflected as "minority interests" in the Consolidated Financial Statements. At
December 31, 1997, such minority shareholders directly and indirectly owned
percentages of the share capital of the Registrant and its Subsidiaries shown
in "Presentation of Information."
The Consolidated Financial Statements present the fixed-line
telecommunications business of the Subsidiaries, as continuing operations and
the cellular telephone business as discontinued operations for all periods.
The assets and liabilities of the cellular telephone business are presented as
net assets of discontinued operations.
The separation of the fixed and cellular telecommunications businesses has
been accounted as a reorganization of entities under common control in a
manner similar to a pooling of interests. The assets and liabilities of the
cellular telephone business were transferred from the Subsidiaries at their
indexed historical cost. The Consolidated Financial Statements are not
necessarily indicative of the financial position and results of operations
that would have occurred for the three-year period ended December 31, 1997 had
the fixed-line telecommunications businesses of the Subsidiaries been separate
legal entities during such periods. See "Description of Business--Background,"
"--The Company" and Notes 1, 2 and 28 to the Consolidated Financial
Statements.
47
<PAGE>
Prior to December 31, 1997 cash and certain nonspecific debt of the cellular
telecommunications business could not be segregated from the Subsidiaries.
Accordingly, these amounts are included in the financial statements for
periods ended before January 1, 1998. As a result, certain interest income and
expense relating to the cellular telecommunications business could not be
identified and, consequently, income from discontinued operations is presented
before unallocated interest income (expense) and income tax expense.
In connection with the formation of the Registrant, certain assets of
Telebras in addition to its interests in the subsidiaries were spun off to the
Registrant. The principal such assets were loans receivable and advances for
capital increase received from the operating subsidiaries, cash and other
current assets. See Note 28 to the Consolidated Financial Statements, which
includes a balance sheet of the Registrant reflecting all the assets and
liabilities of the Registrant as of February 28, 1998. A substantial amount of
such assets (principally investment in subsidiaries) is eliminated upon
consolidation.
EFFECTS OF INFLATION
In accordance with Brazilian GAAP, the Financial Statements recognize
certain effects of inflation and restate data from prior periods in constant
reais of December 31, 1997 purchasing power. Such restatement has been
effected using the integral restatement method (correcao integral), which was
required by the CVM to be used for Financial Statements of public corporations
through December 31, 1995. In periods of inflation, monetary assets generate
inflationary loss and monetary liabilities generate inflationary gain, due to
the decline in purchasing power of the currency. In the Consolidated Financial
Statements, inflationary gains or losses on monetary assets and liabilities
have been allocated to their corresponding income or expense captions in the
income statement. Inflationary gains or losses without a corresponding income
or expense caption have been allocated to other net operating income. See Note
2a to the Consolidated Financial Statements.
Until December 31, 1995, the relevant inflation index selected by the CVM
and the one used for the constant currency method under Brazilian GAAP was the
UFIR. Effective January 1, 1996, the CVM no longer requires Brazilian
companies to restate their financial statements for reporting purposes in
constant currency by indexing historical amounts using the UFIR. Restatement
in constant currency is now optional and any general price index may be used.
The Brazilian Institute of Accountants has recommended that the IGP-M be used
for this purpose. The Company's management believes that the IGP-M is the most
appropriate measure of the general price inflation in Brazil and has elected
the IGP-M for purposes of preparing its consolidated financial statements in
accordance with the constant currency method as of January 1, 1996.
In July 1997, the three-year cumulative inflation rate for Brazil fell below
100%; however, for accounting purposes, the constant currency method has
continued to be applied. The Brazilian Institute of Accountants has not yet
published definitive rules regarding when the constant currency method of
accounting may no longer be used to prepare Consolidated Financial Statements.
If the Brazilian Institute of Accountants determines that the constant
currency method may no longer be used to prepare Consolidated Financial
Statements beginning January 1, 1998, the restated balances of nonmonetary
assets and liabilities of the Company as of December 31, 1997 will become the
new basis for accounting, and income statement items will no longer be
restated for inflation. See "Selected Financial Data."
Because financial information for the Company is presented in constant
currency, reported revenues reflect average real rates (i.e., nominal rates as
restated in constant currency in accordance with variations in the applicable
index) rather than nominal rates. Inflation results in decreases in real rates
to the extent that nominal rate increases fail to keep pace with the rate of
inflation. See "Description of Business--Rates."
FOREIGN EXCHANGE AND INTEREST RATE EXPOSURE
The Company's financial condition and results of operations may be affected
by changes in foreign currency exchange rates (primarily the U.S. dollar/real
rate) and market rates of interest (primarily the London Interbank Offered
Rate (LIBOR) and medium-and long-term U.S. interest rates).
The principal foreign exchange risk faced by the Company arises from the
excess of interest-bearing foreign currency liabilities over foreign currency
income generating assets. At December 31, 1997, the Company had R$45.9 million
of financial liabilities (primarily long-term bank debt) denominated in
foreign currencies (all in
48
<PAGE>
U.S. dollars). The Company's revenues are earned almost entirely in reais and
the Company has no material dollar-denominated assets. During the three years
ended December 31, 1997, any losses arising from the devaluation of the real
against the U.S. dollar were more than offset by net inflationary gains on
monetary assets and liabilities. Should the Company cease using the constant
currency method of accounting in the future, such inflationary gains would no
longer be recognized. The Company does not hedge its foreign currency exposure
and, accordingly, any decrease in the value of the real relative to the dollar
could have a material adverse effect on the Company's results of operations.
The Company's financial condition and results of operations may also be
affected by changes in market rates of interest (primarily LIBOR). The Company
is exposed to interest rate risk as a consequence of its floating rate debt
and limited floating rate interest earning assets. At December 31, 1997, 15.6%
of the Company's interest bearing liabilities bore interest at floating rates.
The Company has not entered into derivative contracts or made other
arrangements to hedge against this risk. Accordingly, should market interest
rates rise (principally LIBOR), the Company's financing expenses will
increase.
YEAR 2000 COMPLIANCE
Year 2000 compliance is the ability of computer hardware and software to
respond to the problems posed by the fact that some computer programs have
traditionally used two digits rather than four to define the applicable year.
As a consequence, any of the Company's computer programs that have date-
sensitive software may recognize a date using "00" as the year 1900 rather
than 2000. This could result in a system failure or miscalculations causing
disruption of operations, including a temporary inability to process
transactions, send invoices or engage in normal business activities.
At the beginning of 1997, at the requirement of Telebras, the Company began
to address the year 2000 issue. The Company has identified the hardware and
software that could be affected by the year 2000 issue and is in the process
of identifying and addressing potential problems. Specifically, the Company
has completed an inventory of the Company's 37 million lines of code, 170,059
computer programs and 172 systems and is in the process of diagnosis.
The Company's year 2000 program covers its telecommunications network
infrastructure as well as its computer hardware and software. In this regard,
the Company is compiling an inventory of equipment that could be affected by
the year 2000 problem and contacting the suppliers of such equipment regarding
the implementation of any necessary solution. In relation to its central
switching centers, the Company expects the year 2000 problem will be addressed
through new software releases that will be provided by the manufacturers of
the switching equipment.
To address other year 2000 issues, the Company will contract third-party
service providers who will work together with Company employees. The Company's
information services department will organize the company's efforts, including
the hiring of third parties. The Company's systems department will adopt and
implement the technical solutions.
The Company estimates that to achieve year 2000 compliance, the Company will
spend approximately R$20 million on its telecommunications hardware and
software and information systems, including the hiring of third parties. The
estimated year 2000 compliance dates vary between the Subsidiaries, ranging
from an expected compliance date of January 1999 for Telepar, Telesc,
Telebrasilia and Telems to August 1999 for Teleron. Although the Company
expects to be fully year 2000 compliant by August 1999, the Company is still
in the process of identifying and evaluating the year 2000 issue and can give
no assurance that the business and financial condition of the Company will not
be materially affected. As of August 30, 1998, the Company had not determined
its most probable worst case scenarios in relation to the year 2000 problem
and had not formulated contingency plans in respect of such scenarios.
The Company may also be affected by year 2000 issues to the extent that
other entities not affiliated with the Company, including government entities
and businesses, are unsuccessful in addressing this issue. The Company depends
primarily on large multinational suppliers for its telecommunications products
and computer services. The majority of the Company's suppliers, however, have
advised the Company that they expect to be year 2000 compliant by September
1999.
49
<PAGE>
POLITICAL, ECONOMIC, REGULATORY AND COMPETITIVE CONSIDERATIONS
The following discussion should be read in conjunction with the "Description
of Business" section included elsewhere in this Registration Statement. As set
forth in greater detail below, the Company's financial condition and results
of operations are significantly affected by Brazilian telecommunications
regulation, including regulation of tariffs. See "Description of Business--
Regulation of the Brazilian Telecommunications Industry." The Company's
financial condition and results of operations also have been, and are expected
to continue to be, affected by the political and economic environment in
Brazil. See "'Description of Business-- Brazilian Political Environment" and
"--Brazilian Economic Environment." In particular, the Company's financial
performance will be affected by (i) national economic growth and its impact on
demand for telecommunications services, (ii) the cost and availability of
financing and (iii) the exchange rates between Brazilian and foreign
currencies. In addition, the Presidential and Congressional elections to be
held in October 1998 could have a significant impact on whether the economic
stabilization and liberalization policies of the current administration can or
will be sustained following the elections.
In April and May 1997, a tariff rebalancing was implemented pursuant to
which certain rates were adjusted and the percentage of revenues retained by
the fixed-line companies for domestic and international long-distance calls
pursuant to the division of revenues system in place prior to April 1998 was
lowered. The principal rate increases occurred with respect to monthly
subscription charges and local measured service charges. These increases were
partially offset by a decrease in domestic long-distance and international
long-distance rates. The monthly subscription charge increased from R$3.73 to
R$13.82 and the local measured service charge increased from R$0.05 per pulse
to R$0.08 per pulse. Average domestic long-distance and international long-
distance rates were reduced by approximately 16.7% and 17%, respectively. If
the tariff rebalancing had been effective as of January 1, 1997, the
composition of the Company's net operating revenues would have been
significantly affected and its total net operating revenues may have been
higher. Pro forma information reflecting the April and May 1997 rate changes
as if they had been in effect from January 1, 1997 has not been presented
because management believes that it is not possible to quantify with any
reasonable degree of certainty the influence on the volume of telephone use
that would have been caused by such changes in the first quarter of 1997.
Until April 1, 1998, revenues for fixed-line domestic and international
long-distance calls were divided between Embratel and the regional fixed-line
companies. Under this system, the Company and each regional fixed-line company
billed its customers for all domestic and international long-distance
telephone calls and retained a fixed percentage of the revenue, transferring
the remainder of the revenue to Embratel. The fixed percentage varied by
regional fixed-line company. As of March 31, 1998, the regional fixed-line
companies transferred an average of 33% of the total revenue for such calls to
Embratel.
As part of the liberalization of the Brazilian telecommunications sector,
this revenue-sharing system was eliminated as of April 1, 1998. Under the new
system, Embratel receives 100% of the revenues from domestic and international
long-distance calls that it carries but must pay certain per-minute
interconnection charges to the Company and the other regional fixed-line
companies for connection to and use of their networks. In addition, until June
30, 2001, Embratel must pay a supplemental per-minute charge for such
interconnection, the Parcela Adicional Temporaria (the "PAT"). The Company
does not expect that implementation of this new system will have a material
impact on its net income. However, it is expected that the allocation to
Embratel of 100% of the revenues generated by fixed-line domestic and
international long-distance calls that it carries will cause certain operating
revenues to decrease. This decrease is expected to be offset by increased
revenues resulting from the network usage charges and PAT paid to the Company
by Embratel.
Following the privatization of the telecommunications sector and, provided
that the obligations of the General Plans on Universal Service and Quality of
Service are met, the Company, currently the exclusive provider of local and
intra-state intra-regional long-distance service in the region, will be
authorized to offer interstate intra-regional long-distance service, which
represents a significant expansion of the services the company may offer, and
the company will face competition. Embratel and a new operator will be
authorized to provide local service beginning December 31, 2003 and December
31, 2002, respectively. Embratel will also be authorized to provide intra-
state, inter-regional long-distance service and two new licenses will be
granted to up to two new entrants to provide intra-regional long-distance
service. Beginning in 2002, the Company may face
50
<PAGE>
an unlimited number of competitors in local and intra-regional long-distance,
and it may itself seek a license to provide interregional and international
long-distance service. The Company anticipates that, as a consequence of the
competition, rates may decline. The exact identity of new entrants, the scope
of increased competition and any adverse effects on the Company's results and
market share will depend on a variety of factors that cannot now be assessed
with precision and that are beyond the Company's control. See "Description of
Business--Competition."
RESULTS OF OPERATIONS FOR THE YEARS ENDED DECEMBER 31, 1995, 1996, AND 1997
The following table sets forth, for each of the years in the three-year
period ended December 31, 1997, certain components of the Company's net
income, the percentage of gross operating revenues represented by each
component and the percentage increase (decrease) thereof during the three-year
period.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, % CHANGE
------------------------------------------------------- -------------------------
1995 % 1996 % 1997 % 1995 V. 1996 1996 V. 1997
--------- ----- ---------- ----- ---------- ----- ------------ ------------
(IN THOUSANDS OF REAIS EXCEPT PERCENTAGES)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
GROSS OPERATING
REVENUES:
Local services:
Monthly subscription
revenues.............. 111,579 5.3 235,847 8.6 449,683 14.6 111.4 90.7
Measured service
charges............... 267,539 12.7 400,128 14.6 532,562 17.3 49.6 33.1
Public telephones...... 39,076 1.9 67,267 2.5 121,948 4.0 72.1 81.3
Other.................. 120,953 5.8 169,654 6.2 170,090 5.5 40.3 0.3
--------- ----- ---------- ----- ---------- ----- ------- -----
Total................ 539,147 25.7 872,896 31.9 1,274,283 41.3 61.9 46.0
--------- ----- ---------- ----- ---------- ----- ------- -----
Non-local services:
Intra-state and
interstate............ 1,234,635 58.8 1,309,452 47.8 1,091,638 35.4 6.1 (16.6)
International.......... 78,069 3.7 74,354 2.7 65,359 2.1 (4.8) (12.1)
--------- ----- ---------- ----- ---------- ----- ------- -----
Total................ 1,312,704 62.5 1,383,806 50.6 1,156,997 37.5 5.4 (16.4)
--------- ----- ---------- ----- ---------- ----- ------- -----
Data transmission...... 75,099 3.6 99,739 3.6 89,775 2.9 32.8 (10.0)
Network services....... 149,173 7.1 344,890 12.6 524,740 17.0 131.2 52.2
Other.................. 24,850 1.2 35,938 1.3 40,459 1.3 44.6 12.6
--------- ----- ---------- ----- ---------- ----- ------- -----
Total................ 249,122 11.9 480,567 17.6 654,974 21.2 92.9 36.3
--------- ----- ---------- ----- ---------- ----- ------- -----
Total gross operating
revenue................ 2,100,973 100.0 2,737,269 100.0 3,086,254 100.0 30.3 12.8
--------- ----- ---------- ----- ---------- ----- ------- -----
Value added and other
taxes................. (503,908) (24.0) (650,518) (23.8) (722,448) (23.4) 29.1 11.0
Discounts.............. (3,364) (0.2) (6,776) (0.2) (8,194) (0.3) 101.4 20.9
--------- ----- ---------- ----- ---------- ----- ------- -----
Net operating revenue... 1,593,701 75.9 2,079,975 76.0 2,355,612 76.3 30.5 13.3
Cost of services:
Depreciation and
amortization.......... (564,565) (26.9) (603,264) (22.0) (669,979) (21.7) 6.9 11.1
Personnel.............. (241,948) (11.5) (244,771) (8.9) (221,968) (7.2) 1.2 (9.3)
Materials.............. (28,833) (1.4) (33,027) (1.2) (29,933) (1.0) 14.6 (9.4)
Services............... (150,904) (7.2) (212,150) (7.8) (297,777) (9.6) 40.6 40.4
Other:
Rental fees........... (9,912) (1.8) (16,255) (1.8) (16,560) (1.3) 63.9 1.9
Network maintenance... (1,470) (0.3) (1,629) (0.2) (2,774) (0.2) 10.8 70.3
--------- ----- ---------- ----- ---------- ----- ------- -----
Total cost of
services........... (997,632) (47.5) (1,111,096) (40.6) (1,238,991) (40.1) 11.4 11.5
--------- ----- ---------- ----- ---------- ----- ------- -----
Gross profit............ 596,069 28.4 968,879 35.4 1,116,621 36.2 62.5 15.3
Operating expense:
Selling expense........ (153,870) (7.3) (174,079) (6.4) (229,555) (7.4) 13.1 31.9
General and
administrative
expense............... (318,507) (15.2) (351,471) (12.8) (380,776) (12.3) 10.4 8.3
Other net operating
income................ 94,512 4.5 130,839 4.8 148,326 4.8 38.4 13.4
--------- ----- ---------- ----- ---------- ----- ------- -----
Total operating
expenses............ (377,865) (18.0) (394,711) (14.4) (462,005) (15.0) 4.5 17.1
--------- ----- ---------- ----- ---------- ----- ------- -----
Operating income before
interest............... 218,204 10.4 574,166 21.0 654,616 21.2 163.1 14.1
Net non-operating income
(expense).............. (1,348) (0.1) (16,433) (0.6) (25,094) (0.8) 1,119.1 52.7
Employees' profit
share................... (8,475) (0.4) (17,068) (0.6) (26,524) (0.9) 101.4 55.4
Income from discontinued
cellular operations
before interest income
(expense), taxes and
minority interests..... 149,135 7.1 297,274 10.9 341,636 11.1 99.3 14.9
Unallocated interest
income................. 40,418 1.9 60,612 2.2 61,913 2.0 50.0 2.2
Allocated and
unallocated interest
expense(1)............. (21,375) (1.0) (11,613) (0.4) (37,734) (1.2) (45.7) 224.9
--------- ----- ---------- ----- ---------- ----- ------- -----
Income before taxes and
minority interests..... 376,559 11.9 886,940 32.4 968,813 31.4 135.5 9.2
Income and social
contribution taxes..... (164,519) (7.8) (231,713) (8.5) (266,949) (8.7) 40.8 15.2
--------- ----- ---------- ----- ---------- ----- ------- -----
Income before minority
interests.............. 212,040 10.1 655,227 23.9 701,864 22.7 209.0 7.1
Minority interests...... (26,910) (1.3) (92,925) (3.4) (138,599) (4.5) 245.3 49.2
--------- ----- ---------- ----- ---------- ----- ------- -----
Net income.............. 185,130 8.8 562,302 20.5 563,265 18.3 203.7 0.2
========= ===== ========== ===== ========== ===== ======= =====
</TABLE>
- --------
(1) In the Consolidated Financial Statements, allocated and unallocated
interest expense are presented separately.
51
<PAGE>
GROSS OPERATING REVENUES
Gross operating revenues increased by 12.8% to R$3,086.3 million in 1997
from R$2,737.3 million in 1996, which in turn represented a 30.3% increase
from R$2,101.0 million in 1995. The growth in revenues in the three-year
period was principally due to an increase in the average number of lines,
increases in service charges for local services and increased interconnection
with the Company's network by cellular companies. Average lines in service
increased by 12.6% to 2,718 thousand in 1997 from 2,414 thousand in 1996,
which in turn represented a 12.7% increase from 2,143 thousand in 1995.
The structure of tariffs has changed substantially as part of a tariff
rebalancing process designed to eliminate cross-subsidies from long-distance
services to local services. Effective in May 1997, the rate structure was
modified through a tariff rebalancing that resulted in higher charges for
measured service and monthly subscription and lower charges for long-distance
services. Effective in January 1996, rates for all services were increased in
nominal terms, primarily to compensate for accumulated effects of inflation,
with the largest increases for local rates.
Local service. Gross operating revenues from local services increased by
46.0% to R$1,274.3 million in 1997 from R$872.9 million in 1996, which in turn
represented a 61.9% increase from R$539.1 million in 1995. The increase over
the three-year period primarily reflects increased monthly subscription
revenues associated with an increase in the number of lines in service and
tariff increases as well as increased measured service revenues due to tariff
increases. The increase in gross operating revenues was partly offset by a
decrease in average call volume per line in service. Average call volume per
line in service decreased by 7% and 12% in 1997 and 1996, respectively.
Monthly subscription revenues increased 90.7% to R$449.7 million in 1997
from R$235.8 million in 1996, which in turn represented an increase of 111.4%
from R$111.6 million in 1995. The increase over the three-year period
reflected an increase in the average number of lines in service as well as an
increase in the monthly subscription charge for all customers. The monthly
subscription charge effective January 1, 1996 increased by 259% for
residential customers and 59% for nonresidential customers. Effective May 1,
1997 there was an additional increase in the monthly subscription charge,
representing a 270% increase for residential customers and 59.3% for
nonresidential customers.
Measured service revenues increased by 33.1% to R$532.6 million in 1997 from
R$400.1 million in 1996, which in turn represented a 49.6% from R$267.5
million from 1995. The increase over the three-year period was principally due
to tariff increases. The price per pulse increased by 61.1% effective on April
4, 1997 in 1997 and by 89.5% effective on January 29, 1996 in 1996. Although
the average number of lines also increased over the three-year period for
residential and nonresidential customers, there was a decrease in the average
call volume per line in service due to the tariff increases such that overall
local call volume did not increase at the same rate as growth in the average
number of lines in service. Total pulses increased slightly to 7,643,773 in
1997 from 7,280,587 in 1996, which in turn represented a decrease from
7,341,666 total pulses in 1995.
Gross operating revenues from public telephones increased 81.3% to R$121.9
million from R$67.3 million, which in turn represented a 72.1% increase from
R$39.1 million in 1995. The increase over the three-year period was
principally due to: (i) a 25.3% and 16.4% increase in the number of public
telephones in 1997 and 1996 respectively; (ii) an increase in the usage of
pre-paid telephone cards and a commensurate increase in related average
nominal tariffs; and (iii) an increase in the usage of token operated public
telephones.
Gross revenue from other services increased by 0.3% to R$170.1 million in
1997 from R$169.7 million in 1996, which in turn represented a 40.3% increase
from R$121.0 million in 1995. The increase in 1997 was principally due to an
increase in line installation charges which replaced auto-financing in mid-
1997 and certain equipment rental payments received by the Company. The
increase in 1996 was principally due to increased lease payments to the
Company.
52
<PAGE>
Non-local services. Non-local services consisted until the privatization of
intra-state and interstate long-distance as well as international long-
distance service. For intra-state long-distance calls, the Company carried the
calls entirely over its own network and received 100% of the call revenue. For
interstate and international calls, the Company delivered the calls to
Embratel, generally at a local switching center, and Embratel transported the
calls for the bulk of the call distance over its network. For such calls, the
Company billed the customer for the full retail price of the call and paid a
fixed percentage of the call revenue to Embratel. For accounting purposes, the
Company booked only its percentage of the revenue for such calls. The fixed
percentage retained by the Company differed for each Subsidiary. Consequently,
the fixed percentage retained by the Company for interstate and international
calls is presented as an annual revenue weighted-average.
Gross revenue from non-local services decreased by 16.4% to R$1,157.0
million in 1997 from R$1,383.8 million in 1996, which in turn represented a
5.4% increase from R$1,312.7 million in 1995. The decrease in 1997 was largely
due to reductions in tariffs for intra-state, interstate and international
long-distance calls, a reduction in the fixed percentage of interstate and
international long-distance call revenue retained by the Company and a change
in the billing structure for such calls where by such calls were billed in 6-
second increments rather than whole minute increments. The decrease was offset
in part by an increase in the volume of intra-state, interstate and
international long-distance calls to 4,118 million minutes, 4,710 million
minutes and 5,129 million minutes in 1995, 1996 and 1997, respectively. The
increase in gross revenues in 1996 compared to 1995 was largely due to an
increase in the average number of intra-state, interstate and international
long-distance minutes per line in service, partially offset by a decrease in
tariffs for intra-state, interstate and international long-distance calls.
Revenues from intra-state and interstate long-distance service decreased by
16.6% to R$ $1,091.6 million in 1997 from $1,309.5 million in 1996, which in
turn represented at 6.1% increase from $1,234.6 million in 1995. The decrease
in revenues in 1997 was principally due to a decrease in the average basic
tariff for intra-state and interstate long-distance calls and a reduction in
the fixed percentage of interstate and international long-distance revenue
retained by the Subsidiaries, partially offset by an increase in the total
number of long-distance minutes. The average basic tariff for intra-state and
interstate service was reduced in May 1997 by 17.1% to R$0.25 from R$0.30. The
weighted average fixed percentage of interstate and international long-
distance revenue per call retained by the Company was reduced from 80.6% in
1995 to 77.7% in 1996, which in turn was reduced to 74.1% in 1997. See
"Description of Business--Rates--Intra-Regional Long-Distance Service." Anatel
replaced the system for sharing revenues between Embratel and the Company for
interstate long-distance services on April 28, 1998. Instead of retaining a
fixed percentage of revenue for all interstate and international long-distance
calls, the Company now charges Embratel per minute of use of the Company's
network. See "Description of Business--Regulation of the Brazilian
Telecommunications Industry--Rate Regulation." There can be no assurance that
the interconnection agreement with Embratel will not result in lower revenues
from carrying interstate and international long-distance calls than under the
prior regime.
The increase in revenues for 1996 was principally due to an increase in the
total number of long-distance minutes, partially offset by a decrease in the
basic tariff for intra-state and interstate long-distance calls and a decrease
in the fixed percentage of interstate long-distance revenue retained by the
Company on a weighted average basis.
Revenues from international long-distance service decreased by 12.1% to
R$65.4 million in 1997 from R$74.4 million in 1996, which in turn represented
a 4.8% decrease from R$78.1 million in 1995. The decrease over the three-year
period was principally due to a reduction in the international tariff in April
1997 and a decrease in the fixed percentage of international long-distance
revenues retained by the Company.
Data transmission. Gross operating revenues from data transmission decreased
by 10.0% to R$89.8 million in 1997 from R$99.7 million in 1996, which in turn
represented a 32.8% increase from R$75.1 million in 1995. The decrease from
1996 to 1997 was principally due to decreases in the average tariff for high-
capacity and low-capacity leased lines of 34.4% in April 1997 and 12.0% in
August 1996. The decrease in rates was partially offset by a 248% increase in
the total number of high-capacity leased lines.
53
<PAGE>
The increase in gross revenues from data transmission from 1995 to 1996 was
principally due a 219% increase in the number of high-capacity lines and to a
restructuring of data transmission services and tariffs on a system-wide basis
by the Ministry of Communications in 1996 which yielded an average tariff
decrease of 32.2% for high and low-capacity lease lines.
Network services. The Company provides access to its network to other
telecommunications companies and leases certain network facilities to other
telecommunications companies as part of its network services business. This
includes primarily interconnection fees from cellular companies paid for the
use of the Company's network and fees from cellular companies for the leasing
of transmission facilities, certain infrastructure and other equipment for use
in transporting cellular calls within their own internal networks. Gross
revenues from network services increased by 52.2% to R$524.7 million in 1997
from R$344.9 million in 1996, which in turn represented a 131.2% increase from
R$149.2 million in 1995. Network services have grown primarily due to growth
of cellular companies and consequently increased demands by cellular companies
for interconnection with the Company's network and demands by cellular company
to rent equipment. Interconnection revenues increased by 59.2% to R$423.6
million in 1997 from R$266.1 million in 1996, which in turn represented a
142.3% increase from R$109.8 million in 1995. Equipment rental revenues
increased by 28.4% to R$101.2 million in 1997 from R$78.8 million in 1996,
which in turn represented a 100% increase from R$39.4 million in 1995.
Management expects continued growth in revenues from network services as
cellular operators grow.
Value-added taxes and other taxes. The principal taxes deducted from gross
operating revenue are a state value-added tax, the ICMS, on operating revenues
from the provision of telecommunications services and federal social
contribution taxes, including the PASEP and COFINS. The Company collects these
taxes from its customers and transfers them to the appropriate governmental
activity. The rate of ICMS is 25.0%, except for international service for
which the rate was 13.0% from April 1994 to September 1996 and has been zero
since September 1996. The PASEP and COFINS aggregate 2.65% of gross operating
revenues.
On June 19, 1998 the secretaries of the treasury of the individual Brazilian
states approved an agreement to interpret existing Brazilian tax law to
broaden the application of the ICMS to cover not only telecommunications
services, but also other services, including cellular activation, which had
not been previously subject to such tax. Pursuant to this new interpretation
of existing tax law, the ICMS tax may be applied retroactively for such
telecommunications services rendered during the last five years.
The Company believes that the attempt by the state treasury secretaries to
extend the scope of ICMS tax to services which are supplementary to basic
telecommunications services is unlawful because: (i) the state secretaries
acted beyond the scope of their authority; (ii) their interpretation would
subject certain services to taxation which are not considered
telecommunications services; and (iii) no new taxes may be applied
retroactively. Accordingly, no provision for loss has been made in the
accompanying consolidated financial statements.
There can be no assurance that the Company will prevail in its position that
the new interpretation by the state treasury secretaries is unlawful. If the
ICMS tax were applied retroactively for five years at rates ranging from 17 to
25%, it would have a material negative impact on the financial condition and
results of operations of the Company.
COST OF SERVICES
Cost of services includes those costs which are incurred as part of the
offering of the Company's telecommunication services to the public, including
costs associated with depreciation and amortization, materials, services and
personnel. Cost of services as a percentage of gross revenues decreased
steadily over the three-year period, but increased in absolute terms by 11.5%
to R$1,239.0 million in 1997 from R$1,111.1 million 1996, which in turn
represented a 11.4% increase from R$997.6 million in 1995.
Depreciation and amortization. Depreciation and amortization expenses
increased by 11.1% in 1997 to R$670.0 million in 1997 from R$603.3 million in
1996, which in turn represented a 6.9% increase from R$564.6
54
<PAGE>
million in 1995. The increase over the three-year period principally reflected
growth of the network. The Company's operating assets had a net book value of
R$6,444.5 million, R$5,963.1 million, and R$5,401.9 million for 1997, 1996 and
1995, respectively. The Company's accounting and assumptions with respect to
depreciation and amortization did not change during this period.
Personnel. Personnel expenses decreased by 9.3% to R$222.0 million in 1997
from R$244.8 million in 1996, which in turn represented at 1.2% increase from
R$241.9 million in 1995. The decrease in personnel expenses in 1997 was
principally due to a decrease in salaries in real terms and an average
reduction in the number of full-time employees by 488. The slight increase in
1996 was principally due to an increase in wages and other fringe benefits
during the period offset by a slight reduction in the total number of
employees.
Materials. Expenses related to materials decreased by 9.4% to R$29.9 million
from R$33.0 million in 1996, which in turn represented a 14.6% increase from
R$28.8 million in 1995. The decrease in costs related to materials was
principally due to increased digitalization of the Company's network in 1997,
which resulted in a decrease in maintenance costs. The increase in expenses
associated with materials in 1996 was principally due to an increase in
maintenance costs due to expansion of the network.
Services. Expenses related to services provided by third parties increased
40.4% in 1997 to R$297.8 million from R$212.2 million, which in turn
represented a 40.6% increase from R$150.9 million in 1995. The increase over
the three-year period was primarily due to increased interconnection payments
to cellular companies for calls originating on the Company's network and
terminating on cellular networks and increased maintenance costs due to
network growth.
Other. Other costs of service, which primarily include fees paid to third
parties to rent equipment and infrastructure for use in the network, increased
8.1% to R$19.3 million in 1997 from R$17.9 million in 1996, which in turn
represented a 57.1% increase from R$11.4 million in 1995. The increase in 1996
was due to higher rental payments, which increased to R$16.3 million from
R$9.9 million in 1995. Such higher rental payments reflected an increase in
the cost of renting certain infrastructure as a result of the renegotiation of
a contract. The increase in other costs of service in 1997 was principally due
to a R$1.1 million increase in miscellaneous network expenses. Rental fees did
not materially increase in 1997.
OPERATING EXPENSES
Operating expense increased by 17.1% to R$462.0 million in 1997 from R$394.7
million in 1996, which in turn represented a 4.5% increase from R$377.9
million in 1995. The increase over the three-year period was principally due
to increased selling expense and general and administrative expense.
Selling expense. Selling expense increased by 31.9% to R$229.6 million in
1997 from R$174.1 million in 1996, which in turn represented a 13.1% increase
from R$153.9 million in 1995. The increase in selling expense over the three-
year period primarily reflected increased commissions to vendors selling
prepaid telephone cards and increased materials expenses in connection with
the production of prepaid telephone cards. In addition, other selling expenses
increased by 209.6% to R$34.0 million in 1997 from R$10.9 million in 1996,
which in turn represented a 118.7% increase from R$5.0 million in 1995. The
increase over the three-year period was primarily due to increased provisions
to the allowance for accounts receivable that are not probable of collection.
Provisions to the allowance for accounts not probable of collection
increased 355% to R$31.2 million in 1997 from R$6.9 million in 1996, which in
turn represented an increase of 162% from R$2.6 million in 1995. These
increases reflected growth in the nonpayment of accounts by the Company's
customers. Management believes that this growth in the level of nonpayment was
principally due to the economic crisis that Brazil experienced in 1997. This
crisis, which was evidenced by increased interest rates and a reduction in the
availability of consumer financing, adversely affected the ability of the
Company's customers to meet payment obligations. The increase in nonpayment
was also due in part to a decline in the market value of fixed lines (which
were considered to have value due to the high cost of acquiring a fixed line
directly and the short supply
55
<PAGE>
of fixed lines) in the Region. As the market value of the fixed lines
decreased, the penalty to the subscriber of losing his fixed line because of
nonpayment also declined and subscribers with significant debts to the Company
had less incentive to pay their accounts.
In the first six months of 1998, the Company made provisions to the
allowance for accounts not probable of collection totaling R$27.9 million. In
an effort to reduce the level of overdue accounts, the Company has initiated a
number of practices, including disconnecting customers with accounts 30 days
past due, improving collection efforts and placing nonpaying customers on a
list of persons to be denied service should they seek to resume service in the
future. Management believes that these measures will help limit nonpayment of
accounts receivable but expects that provisions will nonetheless increase in
1998 due to the combined effect of a decrease in the average annual income of
the Company's subscribers and increased consumer interest rates in Brazil
(which have adversely affected the ability of some customers to meet payment
obligations). In addition, as cellular lines become increasingly available at
competitive prices in the Region, the Company believes that the market value
of a fixed line will continue to decline, thereby providing customers with
less incentive to pay their accounts.
It has been the Company's policy to maintain an allowance for past due
accounts receivable equal to management's estimate of probable future losses
on such accounts, based on historical losses on accounts receivable and the
Company's current level of overdue accounts receivable.
General and administrative expense. General and administrative expense
increased 8.3% to R$380.8 million in 1997 from R$351.5 million in 1996, which
in turn represented at 10.4% increase from R$318.5 million in 1995. The
increase over the three-year period was principally due to an increase in
fringe benefits, expenses related to third-party services including corporate
training, outside consulting fees and postage costs.
Other net operating income. Other net operating income increased by 13.4%
from R$148.3 million in 1997 from R$130.8 million in 1996, which in turn
represented a 38.4% increase from R$94.5 million in 1995. The increase in 1997
was principally due to technical and administrative services provided by the
Company, partially offset by a decrease in fines and expenses recovered by the
Company. The decrease in fines collected resulted from a reduction in the
amount of such fines from 10% of a bill to 2% mandated by Brazilian law. The
increase in other net operating income in 1996 was principally due to an
increase in the revenue generated from certain fines received from delinquent
customers and other expenses recovered by the Company.
ALLOCATED AND UNALLOCATED INTEREST EXPENSE AND UNALLOCATED INTEREST INCOME
As described in Note 2 to the Consolidated Financial Statements, prior to
December 31, 1997, cash and certain nonspecific debt relating to the cellular
telephone business could not be segregated. As a consequence, interest income
and certain interest expense relating to the cellular telephone business could
not be segregated and such interest income and expense are presented in the
Consolidated Financial Statements as "unallocated interest income" and
"unallocated interest expense," respectively. The following discussion
analyzes the Company's combined allocated and unallocated interest expense, as
well, as its unallocated interest income.
Unallocated interest income increased 2.2% to R$61.9 million in 1997 from
R$60.6 million, which in turn represented a 50.0% increase from R$40.4 million
in 1995. The increase over the three-year period was due principally to
interest income earned on excess cash, which was partially offset in 1997 by a
decrease in interest rates.
Allocated and unallocated interest expense increased by 224.9% to R$37.7
million in 1997 from R$11.6 million in 1996, which in turn represented a 45.7%
decrease from R$21.4 million in 1995. The increase in 1997 was principally due
to: (i) a 19% increase in total debt; (ii) increased interest expense related
to Company debt indexed to the relatively high interest rate known as Taxa
Extra de Mercado do Banco do Brasil ("TEX"); (iii) a decrease in monetary
gains due to a constant exchange rate between the U.S. dollar and the
Brazilian real in
56
<PAGE>
1997; and (iv) the institution of the Contribuicao Provisoria sobre
Movimentacao Financeira ("CPMF Tax"), which accounted for R$11.5 million
(30.5%) of total interest expense. The decrease in allocated and unallocated
interest expense in 1996 reflected monetary gains due to the fact that a
portion of the Company's debt was denominated in U.S. dollars. In 1996, the
U.S. dollar/real exchange rate was below the rate of inflation yielding a
monetary gain for the Company.
EMPLOYEES' PROFIT SHARE
All Brazilian companies are required under Brazilian law to compensate
employees, in addition to their salary and benefits, with profit sharing. The
amount of such profit sharing is determined by negotiation between the Company
and the labor unions representing the employees. For state owned companies,
such profit sharing payments are limited to 25% of total proposed dividends.
Telebras has established two additional limits. In addition to the 25% limit
imposed on all state owned companies, companies in the Telebras System must
limit employees' share of profits to the lower of (i) the aggregate of the
employees' annual compensation and (ii) 50% the Company's net income adjusted
for dividends. Following the expected privatization of the Company, employee
profit share will be limited only by the 25% of dividends limit and will be
renegotiated by the Company and the unions representing its employees. The
Company's employees' profit share was R$8.5 million, R$17.1 million and R$26.5
million in 1995, 1996 and 1997, respectively.
MINORITY INTERESTS
Minority interest in the net income of the Subsidiaries was R$26.9 million,
R$92.9 million and R$138.6 million in 1995, 1996 and 1997, respectively,
reflecting 12.7%, 14.2% and 19.7% of income before minority interest,
respectively. The 1997 increase in minority interest as a percentage of income
before such interest principally reflected the issuance and sale by the
Company of preferred shares to new subscribers pursuant to a system called
"auto-financing". Under such system, each new subscriber was required to
invest in shares of the Company and the proceeds from such investment were
used by the Company to finance network expansion. The Company discontinued
auto-financing as of April 1997. See "--Liquidity and Capital Resources."
LIQUIDITY AND CAPITAL RESOURCES
The Registrant is a holding company and its principal assets are the shares
of its operating subsidiaries. The Registrant relies largely on dividends from
its subsidiaries to meet its need for cash, including for the payment of
dividends to shareholders. Under Law No. 6,404 of December 15, 1976, as
amended (the "Brazilian Corporation Law"), dividends may be paid only out of
retained earnings or accumulated profits in any given fiscal year. See
"Description of Securities to be Registered--Capital Stock--Dividends."
Management believes that the Registrant's shareholding in the Subsidiaries
is sufficient to allow the Registrant to control the payment of dividends by
such companies. The Registrant currently is able to nominate and elect all the
members of the boards of directors of the Subsidiaries. However, under
Brazilian law and the regulations of the Brazilian Securities Commission,
persons holding more than 10% of the voting stock of a company (a percentage
that may decrease up to 5% in the case of listed companies) may require the
company to adopt cumulative voting. Management believes that, based on current
holdings in its operating subsidiaries, if cumulative voting were required,
the Registrant would still be able to control the payment of dividends by the
Subsidiaries which, with respect to the Mandatory Dividend, could be limited
only under very strict circumstances. Board members, even if elected by one
specific shareholder, have fiduciary duties toward the company and all its
shareholders. The preferred shareholders and the minority voting shareholders
of the Subsidiaries, in each case voting as a single class of such preferred
shareholders and a single class of such minority voting shareholders, elect
one member each of the Audit Committee. The remaining members of the Audit
Committee are selected by the controlling shareholder.
The Company's principal liquidity and capital resource requirements are to
finance capital expenditures and investments related to the expansion,
improvement and maintenance of its property, plant and equipment.
Historically, the Company has financed its capital expenditures and
investments primarily with internally
57
<PAGE>
generated funds and with proceeds from the required sale of the Company's
shares to new customers ("auto-financing"). As of June 1997 the Company
discontinued auto-financing. See "Description of Business--Rates--Local
Services."
The Company made capital expenditures of R$905.9 million, R$1,098.7 million
and R$1,125.0 million in 1995, 1996 and 1997, respectively. The principal
expenditures related primarily to the expansion and modernization of the
Company's network. See "Description of Business--Capital Expenditures." In
addition, the Company paid dividends of R$101.2 million, R$89.5 million and
R$157.2 million in 1995, 1996 and 1997, respectively. The Company anticipates
capital expenditures for the first eight months of 1998 will be R$719.1
million which in expected to be funded with debt and other sources (44%) and
internally generated funds from operations (56%). See "Description of
Business--Capital Expenditures."
The Company's primary source of funds is cash flow generated from continuing
operations, net of taxes applicable to both continuing and discontinued
operations. Net cash flow generated from operating activities was R$701.0
million, R$982.0 million and R$986.5 million in 1995, 1996 and 1997,
respectively.
At December 31, 1997, the Company had a working capital deficiency. The
Company's current assets were R$737.2 million and its current liabilities were
R$916.4 million, summing to a working capital deficiency of R$179.2 million.
Included in the current liabilities were the following inter-company items:
loans payable to Telebras of R$95.75 million, dividends payable to Telebras of
R$139.75 million, and transactions with related parties of R$34.7 million,
which sum to R$270.2 million. The inter-company items did not have an impact
on the liquidity of the Company; when subtracted from the current working
capital deficiency at December 31, 1997, the Company's effective working
capital balance is positive: working capital deficiency of R$179.1 million
minus inter-company liabilities of R$270.2 million equals R$91.0 million. As a
result, the Company had an effective working capital balance of R$91.0
million. The Company has continued to have a positive working capital balance
throughout 1998.
The Company's total indebtedness for loans and financing was R$246.5 million
and R$294.4 million as of December 31, 1996 and 1997. The principal categories
of indebtedness at December 31, 1997 were the following:
Loans payable to Telebras (R$248.5 million). The Registrant's operating
subsidiaries had certain loans payable to Telebras, of which R$199.5
million was denominated in reais and payable at a contractual interest rate
of TEX (currently approximately 24%) plus an annual fee of 1%, and R$49.0
million was denominated in dollars and payable at an interest rate of 2.3%
per annum.
Upon the Breakup of the Telebras System and the formation of the
Registrant, approximately R$248.5 million of indebtedness of the
Registrant's operating subsidiaries, representing loans from Telebras,
became intercompany loans payable by the Registrant's operating
subsidiaries to the Registrant. Accordingly, these intercompany loans and
the market risk and interest expense relating to such loans will be
eliminated in the preparation of the Registrant's consolidated financial
statements in the future.
Other financing (R$45.9 million). Other financing relates to equipment
financing from Siemens, CPM, Ericsson, Furukawa, and others (denominated in
U.S. dollars). The financing bears interest at fixed interest rates between
1% and 16.3% per year and floating interest rates between LIBOR +0.44% and
LIBOR +5.5% per year and the last maturity date is 2001. This financing is
guaranteed by Telebras.
The Company has no committed lines of credit and current debt is
scheduled to be repaid as follows:
<TABLE>
<CAPTION>
YEAR R$ MILLION
---- ----------
1998.............................................................. 16.2
<S> <C>
1999.............................................................. 2.5
2000.............................................................. --
2001.............................................................. 27.2
2002.............................................................. --
2003 and thereafter............................................... --
----
Total........................................................... 45.9
====
</TABLE>
58
<PAGE>
The Company is party to certain credit agreements related to its other
financing of R$45.9 million. The Company is in technical default under many of
these credit agreements because of the Breakup and privatization of the
Telebras System. Although the total amount of other financing is not material
and none of the creditors concerned has notified the Company that it intends
to pursue its rights and remedies with respect to the default, the Company has
begun negotiating waivers with such creditors. There can be no assurance that
waivers will be obtained or that the creditors will not pursue the rights and
remedies available to them.
The Company is also in technical default of its loans payable to Telebras,
but such loans became intercompany loans payable by the Registrant's operating
subsidiaries to the Registrant upon the completion of the Breakup.
RECONCILIATION TO U.S. GAAP
The Company prepares its financial statements in accordance with Brazilian
GAAP, which differs in significant respects from U.S. GAAP. The principal
differences between Brazilian GAAP and U.S. GAAP as they affected the
Company's results of operations are: (i) under Brazilian GAAP, loans and
financing balances in default are not always classified as current liabilities
while under U.S. GAAP, loans and financings in default or expected to be in
default within a year of the balance sheet date are classified as current
obligations unless creditors have provided the Company waivers for such
defaults; a portion of the Company's outstanding debt at December 31, 1997 is
in default or expected to be in default as a result of its privatization and
the Breakup of the Telebras System (see "--Liquidity and Capital Resources");
(ii) under Brazilian GAAP, interest on loans to finance construction in
progress is capitalized at the rate of 12% per annum of the total value of
construction in progress, regardless of the amount of interest actually
incurred on such loans while under U.S. GAAP interest is capitalized at the
interest rate on the debt incurred up to the lower of the amount of
construction in progress and the total loans incurred; (iii) until December
31, 1993 capitalized interest under Brazilian GAAP was not added to individual
assets but was capitalized separately and amortized over a time period
different from the estimated useful lives of the related assets while under
U.S. GAAP capitalized interest is added to the cost of individual assets and
is amortized over their estimated useful lives; (iv) under Brazilian GAAP the
issuance of shares of the Company to finance capital investments was recorded
at the book value of the shares while under U.S. GAAP the sale of shares must
be recorded at their market value resulting in a gain carried as deferred
income and amortized into current income on the same schedule as the plant
financed with the proceeds from the sale of the shares; (v) under Brazilian
GAAP proposed dividends are accrued for in the financial statements in
anticipation of their approval at the shareholders' meeting, while under U.S.
GAAP, dividends are not accrued until they are formally declared; and (vi)
under Brazilian GAAP, the deferred tax liability arising from the indexation
of assets and liabilities for financial reporting purposes was recorded
against retained earnings while under U.S. GAAP such effects would be charged
to income and social contribution taxes in the statements of income. Net
income under U.S. GAAP was R$622.6 million and R$673.7 million in 1996 and
1997, respectively. See Note 29 to the Consolidated Financial Statements.
RECENT RESULTS
The Company has reported consolidated net operating revenues of R$1,218.2
million and consolidated net income of R$160.1 million for the six months
ended June 30, 1998. Such amounts are unaudited, have been determined in
accordance with the Brazilian Corporation Law and standards issued by the CVM
and have not been indexed for inflation occurring after December 31, 1995 or
been expressed in constant reais. Accordingly, such amounts are not comparable
to the amounts included in the Consolidated Financial Statements, which have
been so indexed and expressed. See "Presentation of Information." However,
management believes that had consolidated net operating revenue and
consolidated net income for the six months ended June 30, 1998 been indexed
for inflation and expressed in constant reais on the same basis as the amounts
presented in the Consolidated Financial Statements, such adjustments would
have had no material effect.
The Company had consolidated net operating revenues, excluding discontinued
cellular operations, as reported in the Consolidated Financial Statements, of
R$2,355.6 million for the year ended December 31, 1997.
59
<PAGE>
On an annualized basis, consolidated net operating revenue for the first six
months of 1998 increased slightly compared to consolidated net operating
revenue in 1997 (excluding discontinued operations). This increase was
principally due to an increase in monthly subscription revenue associated with
an increase in the number of lines in service, partially offset by a decrease
in the average number of pulses per line. In addition, net non-operating
expense increased due to write-offs of fixed assets in connection with a
technology upgrade.
A comparison of consolidated net income for 1997 and the first six months of
1998 is not presented because 1997 net income includes discontinued
operations, unallocated interest income and expense and taxes paid with
respect to discontinued cellular operations. See Note 2 to the Consolidated
Financial Statements. In the first six months of 1998, operating expenses grew
substantially faster than net operating revenues due to decreased other net
operating income resulting from renegotiation of service contracts with
cellular operators at lower prices in comparison to the prior year.
Results for the six months of 1998 are not necessarily indicative of results
for any other period or for the full year. Management believes that the
material adjustments that would be required to reconcile the first six month
figures given above to U.S. GAAP are comparable in nature to those discussed
in Note 29 to the Consolidated Financial Statements except that indexation for
inflation subsequent to December 31, 1995 and through December 31, 1997 would
be required under U.S. GAAP and the cessation of indexation as from January 1,
1998 will eliminate the need for the recognition of an additional charge to
income under U.S. GAAP for the deferred income tax effects of indexation for
financial reporting purposes.
Comparative interim period net operating revenues and net income are not
presented herein. The Registrant was not formed prior to May 22, 1998 and did
not publish interim financial results for the first half of 1997. In addition,
the Registrant's operating subsidiaries' published interim 1997 results (if
any) were for the combined cellular and fixed line entities.
ITEM 9A: QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to market risk from changes in both foreign currency
exchange rates and interest rates. The Company is exposed to foreign exchange
rate risk because certain of its costs are denominated in currencies
(primarily the U.S. dollar) other than those in which it earns revenues
(primarily the real). Similarly, the Company is subject to market risk
deriving from changes in interest rates which may affect the cost of its
financing. The Company does not use derivative instruments, such as foreign
exchange forward contracts, foreign currency options, interest rate swaps and
forward rate agreements, to manage these market risks nor does it hold or
issue derivative or other financial instruments for trading purposes.
EXCHANGE RATE RISK
The Company has exchange rate exposure with respect to the U.S. dollar.
Approximately R$45.9 million of the indebtedness of the Company is denominated
in U.S. dollars. The potential immediate loss to the Company that would result
from a hypothetical 10% change in foreign currency exchange rates would be
approximately R$4.6 million. In addition, if such a change were to be
sustained, the Company's cost of financing would increase in proportion to the
change.
INTEREST RATE RISK
At December 31, 1997, the Company had approximately R$294 million in loans
and financing outstanding, of which R$248 million bore interest of fixed rates
and R$46 million bore interest at floating rates of interest (primarily LIBOR-
based). The Company invests its excess liquidity (R$25 million at December 31,
1997) mainly in short-term instruments. The potential loss to the Company over
one year that would have resulted from hypothetical, instantaneous and
unfavorable change of 100 basis points in the interest rates applicable to
financial assets and liabilities on December 31, 1997 would be approximately
R$3 million. The above sensitivity analyses
60
<PAGE>
are based on the assumption of an unfavorable 100 basis point movement of the
interest rates applicable to each homogenous category of financial assets and
liabilities and sustained over a period of one year. A homogenous category is
defined according to the currency in which financial assets and liabilities
are denominated and assumes the same interest rate movement within each
homogenous category (e.g., U.S. dollars). As a result, the Company's interest
rate risk sensitivity model may overstate the impact of interest rate
fluctuations for such financial instruments as consistently unfavorable
movements of all interest rates are unlikely. See Notes 19 and 24 to the
Consolidated Financial Statements.
ITEM 10: DIRECTORS AND OFFICERS OF REGISTRANT
BOARD OF DIRECTORS
The Registrant is administered by a Board of Directors (Conselho de
Administracao) and a Board of Executive Officers (Diretoria). The Board of
Directors is comprised of eleven members serving for a term of three years.
The Board of Directors holds a regular meeting once every two months and holds
special meetings when called by the Chairman or by two members of the Board of
Directors.
The following are the current members of the Board of Directors and their
respective positions.
<TABLE>
<CAPTION>
NAME POSITION
---- --------
<S> <C>
Modesto Souza Barros Carvalhosa.................................. Chairman
Jair Antonio Bilachi............................................. Director
Arthur Joaquim de Carvalho....................................... Director
Carlos Augusto Salles............................................ Director
Luiz Raymundo Tourinho Dantas.................................... Director
Helio Falchi..................................................... Director
Carmelo Furci.................................................... Director
Benedito Jose Soares de Melo Pati................................ Director
Isabel Ribeiro de Almeida........................................ Director
Jorge de Moraes Jardim Filho..................................... Director
Claudio Salgueiro Garcia Munhoz.................................. Director
</TABLE>
Set forth below are brief biographical descriptions of the Directors.
Modesto Souza Barros Carvalhosa, 66 years old, has served as Chairman of the
Board of Directors since August 1998. He served as a consultant for legal
matters to the Sao Paulo Stock Exchange, Chairman of the Court of Ethics of
the Brazilian Bar Association--Sao Paulo Chapter, Professor of Commercial Law
at the School of Law of the University of Sao Paulo. He served as a member of
the International Faculty for Corporate and Capital Market Law and Securities
Regulation--Philadelphia, USA from 1975 to 1995. Mr. Carvalhosa holds a law
degree and a doctorate degree in law from the University of Sao Paulo, as well
as a post-graduate degree in economics of law from the University of Camerino
(Italy).
Jair Antonio Bilachi, 42 years old, has served as member of the Board of
Directors since August 1998. He served as general manager of Bank of Brazil
(Banco do Brasil) branches in Brasilia, Nova Granada--SP and Cidade Morena--MS
from December 1990 to February 1995 and as Superintendent of Bank of Brazil in
the Federal District from February 1995 to November 1995. He currently serves
as President of PREVI--Caixa da Previdencia dos Funcionarios do Banco do
Brasil. He holds an accounting and a mathematics degree, as well as a post-
graduate degree in foreign trade from the UNEB-COPEX (Uniao Educacional de
Brasilia--Coordenacao de Estudos, Pesquisas, Pos-Graduacao e Extensao)--
Brasilia Educational Union--Studies, Researches, Post-Graduate and Extension
Coordination.
Arthur Joaquim de Carvalho, 41 years old, has served as the Chairman of the
Board of Directors since September 1998. On August 10, 1998, he was also
elected to the Board of Directors of Tele Norte Celular
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<PAGE>
Participacoes S.A. and of Telemig Celular Participacoes S.A.. Mr. Carvalho
serves as a Principal of CVC/Opportunity Equity Partners Ltd., a Cayman Island
privately owned investment company. He has served as a Senior Investment
Officer for private equity at the Opportunity Group. Prior to Opportunity, he
served as a Managing Director of Manuel Joaquim de Carvalho Ltda., an export-
oriented agribusiness company. He holds a degree in Business Administration
from the Federal University of Bahia.
Carlos Augusto Coelho Salles, 59 years old, has served as member of the
Board of Directors since September, 1998. He has served as Superintendent
Executive Officer of Xerox do Brasil (1989/98). He serves as the President of
the Xerox do Brasil, Astor Administracao de Bens e Participacoes Ltda., Centro
de Desenvolvimento de Sistemas de Vitoria, Administrative Board of Sao Rafael
Sociedade de Previdencia Privada. He holds law degree from the Law School of
the University of the State of Rio de Janeiro and a degree in Business
Administration from the Getulio Vargas Foundation of Rio de Janeiro.
Luiz Raymundo Tourinho Dantas, 71 years old, has served as member of the
Board of Directors since September, 1998. He served as Executive Officer and
founder of Brasquip (a drilling devices manufacturer), of CASAFORTE--Credito
Imobiliario e Credito Financiamento and of Companhia de bebidas da Bahia--
CIBEB (Carlsberg); as President of Companhia Valenca Industrial--Fabrica de
Tecidos. He has also served as Vice President of the Commercial Association of
Bahia and of the Industry Federation of the State of Bahia; and as Royal
Consul of Denmark. He holds an law degree from the Federal University of
Bahia.
Helio Falchi, 75 years old, has served as a member of the Board of Directors
since August 1998. He is a partner at the law firm of Benedito J. Soares de
Melo Pati Advogados Associados. He serves as an officer of TMI Telemidia
Internacional do Brasil Ltda. and of Value Partners Brasil Ltda. He holds a
law degree from the Law School of the University of Sao Paulo.
Carmelo Furci, 45 years old, has served as a member of the Board of
Directors since September, 1998. He has served as a Consultant of the
Institute for the New Chile and VECTOR of the Centro de Estudios Economicos y
Sociales (1978/82). He has also served as the Coordinator of International
Relations, Enimont; as Policy Advisor of the European Chemical Association; as
the Responsible for the Foreign Relations of Europe in the World Bank
(1994/97), where he also served as Strategy Manager. He currently serves as
Vice-Director at the Chamber of Commerce of Milan. He holds a degree in
sociology from the Universita degli Studi di Roma and a doctorate degree in
economics from the London School of Economics and Political Science.
Benedito Jose Soares de Mello Patti, 74 years old, has served as a member of
the Board of Directors since September, 1998. He is a practicing attorney and
a partner at the law firm of Benedito J. Soares de Melo Pati Advogados
Associados. He has served as President of Fiat Automoveis do Brasil S.A., of
Magneti Marelli do Brasil Ind. e Com. Ltda. and of GD do Brasil. He holds a
law degree from the Law School of the University of Sao Paulo.
Isabel Ribeiro de Almeida, 24 years old, has served as a member of the Board
of Directors since September, 1998. She is a practicing attorney and an
associate at the law firm of Benedito J. Soares de Melo Pati Advogados
Associados. She holds a law degree from the Law School of the Catholic
University of Sao Paulo.
Jorge de Moraes Jardim Filho, 49 has served as a member of the Board of
Directors since August 1998. He served as a member of the Boards of Directors
of ACESITA S.A., Companhia Paulista de Forca e Luz S.A., Telegoias S.A.,
Telepisa S.A. and Telesp Celular Participacoes S.A.; as President of
Telecomunicacoes Brasileiras S.A.--Telebras (1995) and of Telebrasilia
(1991/1993), as interin Minister of State for Communications (1992/1995) and
as Chairman of the Boards of Directors of Telebras (1992-1995) and of
Telebrasilia (1993). He has also served as the Secretary to the Ministry of
Communications from 1992 to 1995. He currently serves as the Superintendent
Director of Fundacao SISTEL de Seguridade Social, Chairman of the Board of
Directors of GTD S.A., Vice-President of the Boards of Directors of Americel
S.A., Telet S.A., Paranapanema S.A. and World Trade Center of Sao Paulo. He
holds a degree in Engineering and a post-graduate degree in statistics and
economic engineering both from the University of Brasilia.
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Claudio Salgueiro Garcia Munhoz, 39 years old, has been elected to the Board
of Directors of the Company on September 1, 1998. He has joined Banco do
Brasil in 1979 where he has served in many positions in the General
Management, including Manager of Operations. He has also served as
Administrative Director of BB Previdencia (the Pension Fund of Banco do Brasil
S.A.) and as a Member of the Fiscal Council of the PREVI. He currently serves
as Administrative Director of PREVI and as an alternate member of the Superior
Council of BB Previdencia. He holds a degree in economics from the National
University of Brasilia (UNB), and a diploma from the Wharton School of the
University of Pennsylvania.
BOARD OF EXECUTIVE OFFICERS
The Board of Executive Officers consists of one President, one Vice
President and three Executive Officers, with the following titles: Executive
Officer for Business, Network Executive Officer and Support Executive Officer,
elected by the Board of Directors for a term of three years. An Executive
Officer may be removed from office at any time.
The following are the Executive Officers and their respective positions. All
current members were appointed in May 1998.
<TABLE>
<CAPTION>
NAME POSITION
---- --------
<S> <C>
Ari Joaquim da Silva................. President and Executive Officer for
Business
Jonas de Oliveira Junior............. Vice-President
Francisco Aurelio Sampaio Santiago... Network Executive Officer
Giorgio Bampi........................ Support Executive Officer
</TABLE>
Set forth below are brief biographical descriptions of the Executive
Officers not included above.
Ari Joaquim da Silva, 46 years old, has served as an Executive Officer since
May 1998. He joined Telebras in 1980 as head of the Department of Planning and
Finance of Telebrasilia, where he also served as Manager of Strategic Planning
Coordination. He also served as manager of the Department of Planning and
Administrative Control of Telebras, a member of the Board of Directors of
Telegoias, a member of the Audit Committee of Sistel and a Superintendent of
Communication Services at Anatel. He holds a degree in accounting from the
University of the Federal District and graduate degrees in business
administration and executive training.
Jonas de Oliveira Junior, 49 years old, has served as an Executive Officer
since May 1998. Between 1974 and 1996, he served as a manager for Telebras in
areas of technical planning and engineering. Since 1996, he has served as a
manager assisting the President of Telebras in regulatory matters. He holds
degrees in electrical engineering and law from the Technical Institute of
Aeronautics and the Unified Teaching Center of Brasilia respectively, and a
graduate degree in systems analysis from the Institute of Aerospace Research.
Francisco Aurelio Sampaio Santiago, 43 years old, has served as an Executive
Officer since May 1998. He joined Telebras as an engineer at Telebrasilia
S.A.. Since joining Telebrasilia S.A., he has held various positions including
Executive Coordinator of Operations, Executive Coordinator of Engineering,
manager of the Department of Cellular Communications and Director of Human
Resources and Engineering. He holds an electrical engineering degree from the
University of Brasilia and has completed graduate studies in various
specialties of telecommunications and business planning.
Giorgio Bampi, 50 years old, has served as an Executive Officer since May
1998. Among other positions, he served as Fiscal Advisor to Companhia
Telefonica de Paranagua and Superintendent of Financial Administration of
Itaipu Binacional. Most recently, he served as Economics and Finance Director
and Director of Investor Relations of Telepar. He holds an accounting degree
from the Foundation of Social Studies of Parana.
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ITEM 11: COMPENSATION OF DIRECTORS AND OFFICERS
For the year ended December 31, 1997, the aggregate amount of compensation
paid by the Registrant's subsidiaries to all directors and executive officers
of the Registrant's subsidiaries as a group was approximately R$4.5 million.
For the year ended December 31, 1997, the aggregate amount set aside or
accrued by the Registrant's subsidiaries to provide pension, retirement or
similar benefits for officers and directors of the Registrant's subsidiaries
was approximately R$652.1 thousand. The Registrant did not have any officers
or directors for the year ended December 31, 1997 because it was not formed
until May 22, 1998 as part of the Breakup of Telebras.
ITEM 12: OPTIONS TO PURCHASE SECURITIES FROM REGISTRANT OR SUBSIDIARIES
None.
ITEM 13: INTEREST OF MANAGEMENT IN CERTAIN TRANSACTIONS
None.
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PART II
ITEM 14: DESCRIPTION OF SECURITIES TO BE REGISTERED
CAPITAL STOCK
Set forth below is a brief summary of the material provisions concerning the
Preferred Shares and Common Shares, the By-laws and the Brazilian Corporation
Law. This description is qualified by reference to the By-laws, which have
been filed (together with an English translation) as an exhibit to this
Registration Statement and to the Brazilian Corporation Law. A copy of the By-
laws (together with an English translation) is available for inspection at the
principal office of the Depositary. Information on the trading market for the
Preferred Shares is set forth under "Nature of Trading Market" and information
on ownership of the Registrant's shares is set forth under "Control of
Registrant."
GENERAL
The capital stock of the Registrant is comprised of Preferred Shares and
Common Shares, all without par value. At May 22, 1998, 1998, there were
210,029,997 thousand outstanding Preferred Shares and 124,351,903 thousand
outstanding Common Shares. The Company's share capital may be increased only
by shareholder vote.
The Preferred Shares are nonvoting except under limited circumstances and
are entitled to a preferential, noncumulative dividend and to priority over
the Common Shares in the case of liquidation of the Registrant.
Under the Brazilian Corporation Law, the number of nonvoting shares or
shares with limited voting rights, such as the Preferred Shares, may not
exceed two-thirds of the total number of shares. The Federal Government was
required by law prior to the privatization to own more than 50% of the voting
stock of the Registrant.
The majority of the members of the Board of Directors will be elected by the
controlling shareholders of Common Stock of the Registrant. Board members,
even if elected by one specific shareholder, have fiduciary duties towards the
Registrant and all its shareholders.
DIVIDENDS
Pursuant to its By-laws, the Registrant is required to distribute as
dividends in respect of each fiscal year ending on December 31, to the extent
amounts are available for distribution, an aggregate amount equal to at least
25% of Adjusted Net Income (as defined below) on such date (the "Mandatory
Dividend"). The annual dividend distributed to holders of Preferred Shares
(the "Preferred Dividend") has priority in the allocation of Adjusted Net
Income. Remaining amounts to be distributed are allocated first to the payment
of a dividend to holders of Common Shares in an amount equal to the Preferred
Dividend and the remainder is distributed equally among holders of Preferred
Shares and Common Shares. Under the Brazilian Corporation Law, a company is
permitted to suspend the Mandatory Dividend in respect of common shares and
preferred shares not entitled to a fixed or minimum dividend if its Board of
Directors and Audit Committee report to the shareholders' meeting that the
distribution would be incompatible with the financial circumstances of such
company and the shareholders ratify this conclusion at the shareholders'
meeting. In this case, (i) the Board of Directors must forward to the CVM
within five days of the shareholders' meeting an explanation justifying the
information transmitted at the meeting and (ii) the profits which were not
distributed for such reason are to be recorded as a special reserve and, if
not absorbed by losses in subsequent fiscal years, are to be paid as dividends
as soon as the financial situation of such company permits. The Preferred
Shares of the Registrant are entitled to a minimum dividend and thus the
Mandatory Dividend may be suspended only with respect to the Common Shares.
See "--Priority and Amount of Preferred Dividends." Dividends may be paid by
the Registrant out of retained earnings or accumulated profits in any given
fiscal year.
For the purposes of the Brazilian Corporation Law, accumulated profits are
defined as net income after income tax and social contribution for such fiscal
year, net of any accumulated losses from prior fiscal years and
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any amounts allocated to founders' shares, income bonds, employees' and
management's participation in a company's profits.
At each annual shareholders' meeting, the Board of Directors is required to
recommend how net profits for the preceding fiscal year are to be allocated.
Under the Brazilian Corporation Law, the Registrant is required to maintain a
statutory reserve, to which it must allocate 5% of net profits for each fiscal
year until the amount of such reserve equals 20% of the Registrant's paid-in
capital (the "Statutory Reserve"). Net losses, if any, may be charged against
the statutory reserve.
The Brazilian Corporation Law also provides for two additional discretionary
allocations of net profits that are subject to approval by shareholders at the
annual shareholders' meeting. First, a percentage of net profits may be
allocated to the contingency reserve for anticipated losses that are deemed
probable in future years (the "Contingency Reserve"). Any amount so allocated
in a prior year must be either (i) reversed in the fiscal year in which the
loss was anticipated if such loss does not in fact occur or (ii) written off
in the event that the anticipated loss occurs. Second, if the amount of
Unrealized Revenue exceeds the sum of (i) the statutory reserve, (ii) the
Contingency Reserve and (iii) retained earnings, such excess may be allocated
to the reserve (the "Unrealized Revenue Reserve"). Such allocations may not
hinder the payment of dividends on the Preferred Shares. "Unrealized Revenue"
is defined under the Brazilian Corporation Law as the sum of (i) the share of
equity earnings of affiliated companies which is not paid as cash dividends
and (ii) profits from installment sales to be received after the end of the
next succeeding fiscal year.
For the purposes of the Brazilian Corporation Law, and in accordance with
the Registrant's By-laws, the "Adjusted Net Income" is an amount equal to the
Registrant's net profit adjusted to reflect allocations to and from (i) the
Statutory Reserve; (ii) the Contingency Reserve and (iii) the Unrealized
Revenue Reserve.
The amounts available for distribution are determined on the basis of
Financial Statements prepared in accordance with the Brazilian Corporation
Law, which differ from financial statements, such as the Financial Statements
included herein, that are prepared using the constant currency method
according to Brazilian GAAP.
In order to allow the payment of dividends after the Breakup, the
shareholders of Telebras approved, as a part of the Breakup, the allocation of
a proportional part of the retained earnings and reserves of Telebras
transferred to the Registrant as retained earnings of Registrant. These
earnings and reserves (which amount to R$3,185.8 million) are available for
payment of future dividends by the Registrant, if so decided by the
shareholders, although the Registrant is not legally obligated to do so.
PRIORITY AND AMOUNT OF PREFERRED DIVIDENDS
The Registrant's By-laws provide for a minimum dividend for the Preferred
Shares equal to 6% of the amount obtained by dividing the total share capital
by the total number of shares of the Company. As a result of such provision,
holders of Preferred Shares are entitled to receive in any year distributions
of cash dividends prior to the holders of Common Shares receiving any
distribution of cash dividends in such year. In addition, distributions of
cash dividends in any year are made (i) first, to the holders of Preferred
Shares, up to the amount of the Preferred Dividend of the Preferred Shares for
such year, (ii) then, to the holders of Common Shares, until the amount
distributed in respect of each Common Share is equal to the amount distributed
in respect of each Preferred Share, and (iii) thereafter, to the Common Shares
and Preferred Shares on a pro rata basis. If the Mandatory Dividend in any
year is less than or equal to the Preferred Dividend payable to the holders of
Preferred Shares in such year, the holders of Common Shares will not be
entitled to receive any cash dividends from the Registrant in such year,
unless the holders of Common Shares approve dividends in excess of the
Preferred Dividend. In such circumstances, however, holders of Preferred
Shares will be entitled to the amount available for payment of dividends up to
an aggregate amount equal to the Preferred Dividend plus, in the event the
Preferred Dividend is higher than the amount available for payment of
dividends for such year, any retained earnings from previous years may be used
to make up for such shortfall. If the minimum dividend is not paid for a
period of three years, holders of Preferred Shares shall be entitled to full
voting rights until such time as the minimum dividend is paid in full for any
year.
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PAYMENT OF DIVIDENDS
The Registrant is required by law and its By-laws to hold an annual
shareholders' meeting by April 30 of each year at which, among other things,
an annual dividend may be declared by decision of the shareholders on the
recommendation of the Executive Officers, as approved by the Board of
Directors. The payment of annual dividends is based on the Financial
Statements prepared for the fiscal year ending December 31. Under the
Brazilian Corporation Law, dividends are required to be paid within 60 days
following the date the dividend is declared to shareholders of record on such
declaration date, unless a shareholders' resolution sets forth another date of
payment, which must occur prior to the end of the fiscal year in which such
dividend was declared. A shareholder has a three-year period from the dividend
payment date to claim dividends in respect of its shares, after which the
Registrant has no liability for such payment. Because the Registrant's shares
are issued in book-entry form, dividends with respect to any share are
automatically credited to the account holding such share and no action is
required on the part of the shareholder. The Registrant is not required to
adjust the amount of paid-in capital for inflation. Annual dividends may be
paid to shareholders on a pro rata basis according to the date when the
subscription price is paid to the Registrant.
Shareholders who are not residents of Brazil must register with the Central
Bank of Brazil in order for dividends, sales proceeds or other amounts with
respect to their shares to be eligible to be remitted outside of Brazil. The
Preferred Shares underlying the ADSs are held in Brazil by the Custodian, as
agent for the Depositary, which is the registered owner of the Registrant's
shares. See "--Description of American Depositary Receipts in respect of
Preferred Shares."
Payments of cash dividends and distributions, if any, will be made in
Brazilian currency to the Custodian on behalf of the Depositary, which will
then convert such proceeds into U.S. dollars and will cause such U.S. dollars
to be delivered to the Depositary for distribution to holders of ADRs. In the
event that the Custodian is unable to convert immediately the Brazilian
currency received as dividends into U.S. dollars, the amount of U.S. dollars
payable to holders of ADRs may be adversely affected by devaluations of the
Brazilian currency that occur before such dividends are converted and
remitted. Dividends in respect of the Preferred Shares paid to resident and
non-resident shareholders, including holders of ADSs, are not currently
subject to Brazilian withholding tax. See "Taxation--Brazilian Tax
Considerations."
VOTING RIGHTS
Each Common Share entitles the holder thereof to one vote at meetings of
shareholders of the Registrant. Preferred Shares do not entitle the holder to
vote except as set forth below. Holders of Preferred Shares are entitled to
attend or to address meetings of shareholders.
One of the three members of the permanent Audit Committee of the Registrant
and his or her alternate are elected by majority vote of the holders of
Preferred Shares present at the annual meeting of shareholders at which
members of the Audit Committee are elected.
Brazilian Corporation Law provides that certain nonvoting shares, such as
the Preferred Shares, acquire voting rights in the event the Registrant fails
for three consecutive fiscal years to pay the Preferred Dividend to which such
shares are entitled until such payment is made.
The Preferred Shares are entitled to full voting rights with respect to (i)
the approval of any long-term contract between the Company and its affiliates,
on the one hand, and any controlling shareholder of the Company, such
shareholder's affiliates and related parties, on the other hand and (ii)
resolutions modifying certain provisions of the By-laws. The Preferred Shares
are entitled to full voting rights with respect to any resolution submitted to
the shareholders' meeting for the delisting of the Registrant ("going
private") or during liquidation of the Registrant.
Any change in the preference, benefits, conditions of redemption and
amortization of the Preferred Shares, or the creation of a class of shares
having priority or preference over the Preferred Shares, would require the
approval of holders of a majority of the outstanding Preferred Shares at a
special meeting of holders of Preferred Shares. Such a meeting would be called
by publication of a notice in the Gazeta Mercantil and the Diario Oficial da
Uniao at least thirty days prior to the meeting but would not generally
require any other form of notice.
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In any circumstances in which holders of Preferred Shares are entitled to
vote, each Preferred Share will entitle the holder thereof to one vote.
PREEMPTIVE RIGHTS
Each shareholder of the Registrant has a general preemptive right to
subscribe for shares in any capital increase, in proportion to its
shareholding. A period of 30 days following the publication of notice of the
capital increase is allowed for exercise of the right, and the right is
negotiable. However, a shareholders' meeting is authorized to eliminate
preemptive rights with respect to the issuance of new shares, debentures,
warrants and founders' shares convertible into new shares up to the limit of
the authorized share capital, provided that the distribution of these
securities is effected (i) on a stock exchange or in a public offering, (ii)
through an exchange of shares in a public offering the purpose of which is to
acquire control of another company or (iii) through the use of certain tax
incentives.
In the event of a capital increase which would maintain or increase the
proportion of capital represented by Preferred Shares, holders of ADSs, or of
Preferred Shares, would have preemptive rights to subscribe only to newly
issued Preferred Shares. In the event of a capital increase which would reduce
the proportion of capital represented by Preferred Shares, holders of ADSs, or
of Preferred Shares, would have preemptive rights to subscribe to Preferred
Shares, in proportion to their shareholdings and to Common Shares only to the
extent necessary to prevent dilution of their interest in the Registrant.
Preemptive rights to purchase shares may not be offered to U.S. holders of
ADSs unless a registration statement under the Securities Act is effective
with respect to the shares underlying such rights, or an exemption from the
registration requirements of the Securities Act is available. Consequently,
holders of ADSs who are U.S. persons or are located in the United States may
be restricted in their ability to participate in the exercise of preemptive
rights. See "--Description of American Depositary Receipts--Dividends, Other
Distributions and Rights in respect of Preferred Shares."
RIGHT OF REDEMPTION
Neither the Common Shares nor the Preferred Shares are redeemable, subject
to the right of a dissenting shareholder to seek redemption upon a decision
made at a shareholders' meeting by shareholders representing over 50% of the
voting shares (i) to change the preference of the Preferred Shares or to
create a class of shares having priority or preference over the Preferred
Shares, (ii) to modify the mandatory distribution of dividends, (iii) to
change the corporate purposes of the Registrant, (iv) to dissolve or liquidate
the Registrant, (v) to transfer all of the shares of the Registrant to another
company in order to make the Registrant a wholly-owned subsidiary of such
company (incorporacao de acoes), (vi) to approve the acquisition of another
company, the price of which exceeds certain limits set forth in the Brazilian
Corporation Law, and (vii) to merge or consolidate the Registrant with another
company, if certain liquidity standards provided in the Brazilian Corporation
Law are not met. The right to redemption lapses 30 days after publication of
the minutes of the relevant shareholders' meeting or, whenever the resolution
requires the approval of the holders of Preferred Shares by vote taken in a
special meeting of a majority of the holders of Preferred Shares affected by
the resolution, within 30 days from the publication of the minutes of such
special meeting.. The Registrant would be entitled to reconsider any action
giving rise to redemption rights within 10 days following the expiration of
such rights if the redemption of shares of dissenting shareholders would
jeopardize the financial stability of the Registrant.
Unless otherwise provided in the By-laws (which is not the case with the
Registrant), shares are redeemable at their book value, determined on the
basis of the last annual balance sheet approved by the shareholders. If the
shareholders' meeting giving rise to redemption rights occurs more than 60
days after the date of the last annual balance sheet, a shareholder may demand
that its shares be valued on the basis of a new balance sheet that is as of a
date within 60 days of such shareholders' meeting.
FORM AND TRANSFER
Shares of the Registrant are maintained in book-entry form with a transfer
agent (the "Transfer Agent") and the transfer of such shares is made in
accordance with the applicable provisions of the Brazilian Corporation
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Law, which provides that a transfer of shares is effected by an entry made by
the Transfer Agent on its books, debiting the share account of the seller and
crediting the share account of the purchaser, against presentation of a
written order of the seller, or judicial authorization or order, in an
appropriate document which remains in the possession of the Transfer Agent.
The Preferred Shares underlying the ADS will be registered on the Transfer
Agent's records in the name of the Depositary.
Transfers of shares by a foreign investor are made in the same way and
executed by such investor's local agent on the investor's behalf except that,
if the original investment was registered with the Central Bank of Brazil
pursuant to the Annex IV Regulations, the foreign investor should also seek
amendment, if necessary, through its local agent, of the certificate of
registration to reflect the new ownership.
Each of the Sao Paulo Stock Exchange and the Rio de Janeiro Stock Exchange
operates a central clearing system. A holder of shares of the Registrant may
choose, at its discretion, to participate in these systems and all shares
elected to be put into the system will be deposited in custody with the
relevant stock exchange (through a Brazilian institution duly authorized to
operate by the Central Bank of Brazil having a clearing account with the
relevant stock exchange) and the fact that such shares are subject to custody
with the relevant stock exchange will be reflected in the Registrant's
register of shareholders. Each participating shareholder will, in turn, be
registered in the register of beneficial shareholders of the Registrant
maintained by the relevant stock exchange and will be treated in the same way
as registered shareholders.
DESCRIPTION OF AMERICAN DEPOSITARY RECEIPTS IN RESPECT OF PREFERRED SHARES
The following is a summary of the material provisions of the deposit
agreement (the "Deposit Agreement"), dated as of July 27, 1998 among the
Registrant, the Depositary, and the registered holders (the "Owners") and
beneficial owners from time to time of ADSs (the "Beneficial Owners"),
pursuant to which the ADSs representing Preferred Shares are to be issued.
This summary is subject to and qualified in its entirety by reference to the
Deposit Agreement, including the form of ADRs. Terms used in this description
and not otherwise defined shall have the meanings set forth in the Deposit
Agreement. A copy of the Deposit Agreement has been filed as an exhibit to
this Registration Statement. Copies of the Deposit Agreement are available for
inspection at the Corporate Trust Office of the Depositary, currently located
at 101 Barclay Street, New York, NY 10286, and at the office of the agent of
the Custodian, currently located at the principal Sao Paulo, Brazil office of
Banco Itau. The Depositary's principal executive office is located at 1 Wall
Street, New York, NY 10015.
AMERICAN DEPOSITARY RECEIPTS
ADRs evidencing ADSs are issuable by the Depositary pursuant to the Deposit
Agreement. Each ADR is in registered form and evidences a specified number of
ADSs, each ADS representing 1,000 Preferred Shares, or evidence of the right
to receive 1,000 Preferred Shares deposited with the Custodian and registered
in the name of the Depositary or its nominee (together with any additional
Preferred Shares at any time deposited or deemed deposited under the Deposit
Agreement and any and all other securities, cash and other property received
by the Depositary or the Custodian in respect of such Preferred Shares and at
such time held under the Deposit Agreement, the "Deposited Securities"). Only
persons in whose names ADRs are registered on the books of the Depositary are
treated by the Depositary and the Registrant as Owners.
DEPOSIT, TRANSFER AND WITHDRAWAL
The By-laws provide that ownership of capital generally must be evidenced
only by a record of ownership maintained by the Registrant or an accredited
intermediary, such as a bank, acting as a registrar for the shares. Currently,
such function is performed by the Registrant as registrar (the "Registrar").
Accordingly, all references to the deposit, surrender and delivery of the
Preferred Shares refer only to book-entry transfers of the Preferred Shares in
Brazil. See "--Capital Stock" for a description of the characteristics and
rights of the Preferred Shares. All references to the deposit, surrender and
delivery of the ADS or the ADRs refer not only to the physical transfer of any
certificates representing such ADRs but also to any book-entry transfers.
The Preferred Shares represented by ADSs were deposited pursuant to the
Deposit Agreement by book-entry transfer to an account of the Custodian and
registered in the name of the Custodian. The Depositary is the holder of
record on the books of the Custodian of all such Preferred Shares.
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The Depositary has agreed, subject to the terms and conditions of the
Deposit Agreement, that upon delivery (including by book-entry credit) to the
Custodian of the Preferred Shares (or evidence of rights to receive Preferred
Shares) and pursuant to appropriate instruments of transfer in a form
satisfactory to the Custodian, the Depositary will, upon payment of the fees,
charges and taxes provided in the Deposit Agreement, execute and deliver at
its Corporate Trust Office to, or upon the written order of, the person or
persons named in the notice of the Custodian delivered to the Depositary or
requested by the person depositing such Preferred Shares with the Depositary,
an ADR or ADRs, registered in the name or names of such person or persons, and
evidencing any authorized number of ADSs requested by such person or persons.
The Depositary will refuse to accept Preferred Shares for deposit whenever
it is notified in writing that such deposit would result in any violation of
applicable laws. Neither the Depositary nor the Custodian, nor any nominee or
person on their behalf, will accept any Restricted ADR evidencing Restricted
ADSs issued pursuant to the Restricted Deposit Agreement, or Preferred Shares
withdrawn pursuant to the Restricted Deposit Agreement for the purpose of
deposit under the Deposit Agreement, or issue ADSs or ADRs against delivery
thereof, as long as such Restricted ADSs, Restricted ADRs or Preferred Shares
are or may be deemed restricted securities within the meaning of Rule
144(a)(3) under the Securities Act.
Upon surrender at the Corporate Trust Office of the Depositary of an ADR for
the purpose of withdrawal of the Deposited Securities represented by the ADSs
evidenced by such ADR and upon payment of the fees of the Depositary,
governmental charges and taxes provided in the Deposit Agreement, and subject
to the terms and conditions of the Deposit Agreement, the By-laws, the
Deposited Securities and applicable law, the Owner of such ADR will be
entitled to book-entry credit with the Registrar together with physical
delivery (if physical delivery is permitted under the By-laws), to him or upon
his order, as permitted by applicable law, of the amount of Deposited
Securities at the time represented by the ADS or ADSs evidenced by such ADR.
Any forwarding of share certificates (if any), other securities, property,
cash and other documents of title for such delivery will be at the risk and
expense of the Owner.
Subject to the terms and conditions of the Deposit Agreement and any
limitations that may be established by the Depositary and unless requested by
the Registrant to cease doing so, the Depositary may execute and deliver ADRs
prior to the receipt of Preferred Shares (a "Pre-Release"), may deliver
Preferred Shares upon the receipt, and cancellation of ADRs which have been
Pre-Released, whether or not such cancellation is prior to the termination of
such Pre-Release or the Depositary knows that such ADR has been Pre-Released,
and may receive ADRs in lieu of Preferred Shares in satisfaction of a Pre-
Release.
Each Pre-Release must be (a) preceded or accompanied by a written
representation and agreement from the person to whom the ADRs are to be
delivered (the "Pre-Releasee") that the Pre-Release or its customer (i) owns
the Preferred Shares or ADRs to be remitted, as the case may be, (ii) assigns
all beneficial right, title and interest in such Preferred Shares or ADRs, as
the case may be, to the Depositary for the benefit of the Owners and (iii)
agrees in effect to hold such Preferred Shares or ADRs, as the case may be,
for the account of the Depositary until delivery of the same upon the
Depositary's request, (b) at all times fully collateralized with cash or U.S.
government securities, (c) terminable by the Depositary on not more than five
business days' notice and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will set
limits with respect to Pre-Release transactions to be entered into hereunder
with any particular Pre-Releasee on a case by case basis as the Depositary
deems appropriate. The collateral referred to in clause (b) above shall be
held by the Depositary for the benefit of the Owners as security for the
performance of the Pre-Releasee's obligations to the Depositary in connection
with a Pre-Release transaction, including the Pre-Release's obligation to
deliver Preferred Shares or ADRs upon termination of a Pre-Release
transaction.
The Depositary will also limit the number of ADRs involved in such Pre-
Release transactions so that Preferred Shares not deposited but represented by
ADSs outstanding at any time as a result of Pre-Releases will not normally
exceed thirty percent (30%) of the ADSs outstanding (without giving effect to
ADSs evidenced by ADRs outstanding as a result of the Pre-Release), but the
Depositary reserves the right to disregard such limit from time to time as it
deems appropriate and may, with the prior written consent of the Registrant,
change such
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limit for purposes of general application. The Depositary may retain for its
own account any compensation received by it in connection with the foregoing.
Neither the Registrant nor the Custodian shall incur any liability to Owners
of ADRs as a result of such transactions.
DIVIDENDS, OTHER DISTRIBUTIONS AND RIGHTS
The Depositary is required to convert, as promptly as practicable and, in
any event, within one business day of its receipt thereof, into U.S. dollars,
all cash dividends or other distributions, net proceeds from the sale of
securities, property or rights, denominated in any currency other than U.S.
dollars that it receives in respect of the deposited Preferred Shares if
permitted under applicable laws and the Depositary determines that such
conversion into U.S. dollars and transfer to the United States can be effected
on a reasonable basis. If at the time of conversion, the resulting U.S.
dollars can, pursuant to applicable law, be transferred out of Brazil for
distribution, the Depositary will as promptly as practicable distribute the
amount received to the Owner entitled thereto in proportion to the number of
ADSs evidenced by such Owner's ADRs without regard to any distinctions among
Owners on account of exchange restrictions or otherwise. The amount
distributed will be reduced by any amounts to be withheld by the Registrant,
the Depositary or the Custodian, including amounts on account of any
applicable taxes and certain other expenses. For further details about
applicable taxes, see "Taxation."
If such conversion, transfer or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary will
file as promptly as practicable such application for approval or license;
however, the Depositary will be entitled to rely upon Brazilian local counsel
in such matters, which counsel will be instructed to act as promptly as
possible. If, pursuant to applicable law, any foreign currency received by the
Depositary or the Custodian cannot be converted to U.S. dollars, or if any
approval or license of any government or agency thereof that is required for
such conversion is denied or, in the opinion of the Depositary, cannot be
promptly obtained at a reasonable cost, the Depositary will, (a) as to the
portion of the foreign currency that is convertible into U.S. dollars, make
such conversion and (i) if permitted by applicable law, transfer such U.S.
dollars to the United States and distribute them to the Owners entitled
thereto or (ii) to the extent that such transfer is not permitted, hold such
U.S. dollars for the benefit of the Owners entitled thereto, uninvested and
without liability for interest thereon and (b) as to the nonconvertible
balance, if any, (i) if requested in writing by an Owner, distribute or cause
the Custodian to distribute the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) received by the
Depositary or the Custodian to such Owner and (ii) the Depositary shall hold
or will cause the Custodian to hold any amounts of nonconvertible foreign
currency not distributed pursuant to the immediately preceding subclause (i)
uninvested and without liability for the interest thereon for the respective
accounts of the Owners entitled to receive the same, uninvested and without
liability for the interest thereon.
If the Registrant declares a dividend in, or free distribution of,
additional Preferred Shares with respect to the Preferred Shares represented
by the ADSs, the Depositary may, or will if the Registrant so requests,
distribute as promptly as practicable to the Owners of outstanding ADRs
entitled thereto, in proportion to the number of ADSs evidenced by their
respective ADRs, additional ADRs evidencing an aggregate number of ADSs that
represents the number of Preferred Shares received as such dividend or free
distribution, subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Preferred Shares and the issuance of ADSs
evidenced by ADRs, including the withholding of any tax or other governmental
charge and the payment of fees of the Depositary.
The Depositary may withhold any such distribution of ADRs if it has not
received satisfactory assurances from the Registrant that such distribution
does not require registration under the Securities Act or is exempt from
registration under the provisions of such Act. In lieu of delivering ADRs for
fractional ADSs in the event of any such dividend or free distribution, the
Depositary will sell the amount of Preferred Shares represented by the
aggregate of such fractions and distribute the net proceeds in accordance with
the Deposit Agreement. If additional ADRs are not so distributed, each ADS
will thereafter also represent the additional Preferred Shares distributed
upon the Deposited Securities represented thereby.
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If the Registrant offers, or causes to be offered, to the holders of
Preferred Shares any rights to subscribe for additional Preferred Shares or
any rights of any other nature, the Depositary, after consultation with the
Registrant, will have discretion as to the procedure to be followed in making
such rights available to Owners or in disposing of such rights for the benefit
of such Owners and making the net proceeds available to such Owners. If, by
the terms of such rights offering for any other reason, it would be unlawful
for the Depositary may not either make such rights available to any Owners or
dispose of such rights and make the net proceeds available to such Owners,
then the Depositary will allow the rights to lapse. If at the time of the
offering of any rights, the Depositary determines in its discretion that it is
lawful and feasible to make such rights available to all or certain Owners,
the Depositary may, and at the request of the Company will, distribute to any
Owners to whom it determines the distribution to be lawful and feasible, in
proportion to the number of ADSs held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
If the Depositary determines that it is not lawful or feasible to make such
rights available to all or certain Owners, it may, and at the request of the
Registrant, will use its best efforts that are reasonable under the
circumstances to, sell the rights, warrants or other instruments in proportion
to the number of ADSs held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate net proceeds of
such sales for the account of such Owners otherwise entitled to such rights,
warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any ADR or ADRs or otherwise. The
Depositary will not be responsible for any failure to determine that it may be
lawful or feasible to make such rights available to Owners in general or any
Owner or Owners in particular.
In circumstances in which rights would not otherwise be distributed, if an
Owner requests the distribution of warrants or other instruments in order to
exercise the rights allocable to the ADSs of such Owner, the Depositary will
promptly make such rights available to such Owner upon written notice from the
Registrant to the Depositary that (a) the Registrant has elected in its sole
discretion to permit such rights to be exercised and (b) such Owner has
executed such documents as the Registrant has determined in its sole
discretion are reasonably required under applicable law. Upon instruction
pursuant to such warrants or other instruments to the Depositary from such
Owner to exercise such rights, upon payment by such Owner to the Depositary
for the account of such Owner of an amount equal to the purchase price of the
Preferred Shares to be received in exercise of the rights, and upon payment of
the fees of the Depositary as set forth in such warrants or other instruments,
the Depositary will, on behalf of such Owner, exercise the rights and purchase
the Preferred Shares, and the Registrant will cause the Preferred Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Preferred Shares so purchased to
be deposited, and will execute and deliver ADRs to such Owner, pursuant to the
Deposit Agreement. Such a disposal of rights may reduce the Owners'
proportionate equity interest in the Registrant.
The Depositary will not offer rights to Owners having an address of record
in the United States unless a registration statement under the Securities Act
is in effect with respect to such rights and the Securities to which such
rights relate or unless the offering and sale thereof to such Owners are
exempt from registration under the Securities Act; however, the Registrant
will have no obligation to file a registration statement under the Securities
Act to make available to Owners any right to subscribe for or to purchase any
of the Securities.
Whenever the Depositary receives any distribution other than cash, Preferred
Shares or rights in respect of the Deposited Securities, the Depositary will,
as promptly as practicable, cause the securities or property received by it to
be distributed to the Owners entitled thereto, after deduction or upon payment
of any fees and expenses of the Depositary or any taxes or other governmental
charges, in proportion to their holdings, respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement
that the Registrant or the Depositary withhold an amount on account of taxes
or other governmental charges or that such securities must be registered under
the Securities Act, in order to be distributed to Owners) the Depositary
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deems such distribution not to be feasible, the Depositary may, after
consultation with the Registrant, adopt such method as it may deem equitable
and practicable for the purpose of effecting such distribution, including, but
not limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of any such sale (net of
the fees and expenses of the Depositary) will be distributed by the Depositary
to the Owners entitled thereto as in the case of a distribution received in
cash.
In connection with any distribution to Owners, the Registrant will remit to
the appropriate governmental authority or agency all amounts (if any) required
to be withheld by the Registrant and owing to such authority or agency by the
Registrant; and the Depositary and the Custodian will remit to the appropriate
governmental authority or agency all amounts (if any) required to be withheld
and owing to such authority or agency by the Depositary or Custodian. If the
Depositary determines that any distribution of property other than cash
(including Preferred Shares and rights to subscribe therefor) is subject to
any tax or governmental charge that the Depositary is obligated to withhold,
the Depositary may, by public or private sale, dispose of all or a portion of
such property in such amounts and in such manner as the Depositary deems
necessary and practicable to pay such taxes or governmental charges, and the
Depositary will distribute the net proceeds of any such sale or the balance of
any such property after deduction of such taxes or governmental charges to the
Owners entitled thereto in proportion to the number of ADSs held by them,
respectively.
Upon any change in nominal or par value, or split-up, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the
Registrant or to which it is a party, any Preferred Shares or other securities
that will be received by the Depositary or the Custodian in exchange for, in
conversion of, or in respect of Deposited Securities will be treated as new
Deposited Securities under the Deposit Agreement, and ADSs will thenceforth
represent, in addition to the existing Deposited Securities, the right to
receive the new Deposited Securities so received in exchange or conversion,
unless additional ADRs are delivered pursuant to the following sentence. In
any such case the Depositary may, and will if the Company so requests, execute
and deliver additional ADRs as in the case of a distribution in Preferred
Shares, or call for the surrender of outstanding ADRs to be exchanged for new
ADRs specifically describing such new Deposited Securities.
RECORD DATES
Whenever any cash dividend or other cash distribution shall become payable,
or whenever any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever for any
reason the Depositary causes a change in the number of Preferred Shares that
are represented by each ADS or whenever the Depositary shall receive notice of
any meeting of holders of Preferred Shares or other Deposited Securities, or
whenever the Depositary shall find it necessary or convenient, the Depositary
will fix a record date, which date shall, to the extent practicable, be either
the same date as the record date fixed by the Registrant or, if different from
the record date fixed by the Registrant, fixed after consultation with the
Registrant, (a) for the determination of the Owners who will be (i) entitled
to receive such dividend, distribution of rights, or the net proceeds of the
sale thereof, or (ii) entitled to give instructions for the exercise of voting
rights at any such meeting, or (b) on or after which such ADS will represent
the changed number of Preferred Shares, all subject to the provisions of the
Deposit Agreement.
VOTING OF THE DEPOSITED SECURITIES
Preferred Shares do not entitle the holders thereof to vote on any matter
presented to a vote of shareholders of the Registrant except as set forth
under "--Capital Stock--Voting Rights." With respect to the circumstances set
forth thereunder and if, in the future, the terms of the Preferred Shares
should be revised or amended so as to provide for voting rights, or should the
Preferred Shares obtain voting rights pursuant to the Brazilian Corporation
Law or through any change in the laws, rules, or regulations applicable to
such shares or through any change in interpretation of such laws, the
following shall apply.
As soon as practicable after receipt of notice of any meeting or
solicitation of consents or proxies of holders of Preferred Shares or other
Deposited Securities, if requested in writing by the Registrant, the
Depositary will,
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as soon as practicable thereafter, mail to all Owners a notice, the form of
which notice will be in the sole discretion of the Depositary, containing (a)
the information included in such notice of meeting received by the Depositary
from the Registrant (or a summary in English of the notice of such meeting),
(b) a statement that the Owners as of the close of business on a specified
record date will be entitled, subject to any applicable provision of Brazilian
law, the By-laws and the provisions of the Deposited Securities, to instruct
the Depositary as to the exercise of the voting rights, if any, pertaining to
the Preferred Shares or other Deposited Securities represented by their
respective ADSs and (c) a statement as to the manner in which such
instructions may be given, including an express indication that instructions
may be given or deemed given in accordance with the last sentence of this
paragraph if no instruction is received, to the Depositary to give a
discretionary proxy to a person designated by the Registrant. Upon the written
request of an Owner on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary will endeavor,
insofar as practicable, to vote or cause to be voted the amount of Preferred
Shares or other Deposited Securities represented by the ADSs evidenced by such
ADRs in accordance with the instructions set forth in such request. The
Depositary may not itself exercise any voting discretion over any Preferred
Shares. If the Depositary does not receive instructions from an Owner on or
before the date established by the Depositary for such purpose, the Depositary
will deem such Owner to have instructed the Depositary to give a discretionary
proxy to a person designated by the Registrant to vote the underlying
Preferred Shares, provided that no such discretionary proxy will be given with
respect to any matter as to which the Registrant informs the Depositary that
(i) the Registrant does not wish such proxy given, (ii) substantial opposition
exists or (iii) the rights of holders of Preferred Shares will be materially
and adversely affected. Under Brazilian law the Depositary may vote the
Preferred Shares or other Deposited Securities represented by ADSs and
evidenced by ADRs in accordance with the instructions of the Owners even if
those instructions differ among such Owners.
Owners are not entitled to attend meetings of shareholders. An Owner of ADRs
wishing to do so must cancel its ADRs and obtain delivery of the underlying
shares, registered in the name of such Owner, prior to the record date for
attendance at such meeting.
REPORTS AND OTHER COMMUNICATIONS
The Depositary will make available for inspection by Owners at its Corporate
Trust Office any reports and communications, including any proxy soliciting
material, received from the Registrant, which are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to holders of such Deposited Securities by the Registrant. The
Depositary will also send to Owners copies of such reports when furnished by
the Registrant pursuant to the Deposit Agreement. Any such reports and
communications furnished to the Depositary by the Registrant will be furnished
in English, to the extent that such materials are required to be translated
into English pursuant to any regulations of the Commission.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of the ADRs and any provision of the Deposit Agreement may at any
time and from time to time be amended by agreement between the Registrant and
the Depositary in any respect which they may deem necessary or desirable. Any
amendment that imposes or increases any fees or charges (other than taxes and
other governmental charges, registration fees, cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which otherwise
prejudices any substantial existing rights of Owners, will not take effect as
to the outstanding ADRs until the expiration of 30 days after notice of such
amendment has been given to the Owners of outstanding ADRs. Every Owner and
Beneficial Owner at the time such amendment becomes effective will be deemed,
by continuing to hold such ADR, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event will any
amendment impair the right of any Owner to surrender his ADR and receive
therefor the Preferred Shares and other property represented thereby, except
to comply with mandatory provisions of applicable law.
The Depositary will at any time at the direction of the Registrant terminate
the Deposit Agreement by mailing notice of such termination to the Owners then
outstanding at least 30 days prior to the date fixed in such
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notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Registrant and the
Owners, if at any time after 60 days have expired after the Depositary shall
have delivered written notice of its election to resign to the Registrant, a
successor depositary shall not have been appointed and accepted its
appointment, in accordance with the terms of the Deposit Agreement. If any
ADRs remain outstanding after the date of termination, the Depositary
thereafter will discontinue the registration of transfer of ADRs, will suspend
the distribution of dividends to the holders thereof and will not give any
further notices or perform any further acts under the Deposit Agreement,
except for (1) the collection of dividends and other distributions pertaining
to the Deposited Securities, (2) the sale of rights and other property and (3)
the delivery of Preferred Shares, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale
of any rights or other property, in exchange for surrendered ADRs (after
deducting, in each case, the fees of the Depositary for the surrender of an
ADR and other expenses set forth in the Deposit Agreement and any applicable
taxes or governmental charges).
At any time after the expiration of one year from the date of termination,
the Depositary may sell the Deposited Securities then held thereunder and hold
uninvested the net proceeds of such sale, together with any other cash,
unsegregated and without liability for interest, for the pro rata benefit of
the Owners that have not theretofore surrendered their ADRs, such Owners
thereupon becoming general creditors of the Depositary with respect to such
net proceeds. After making such sale, the Depositary will be discharged from
all obligations under the Deposit Agreement, except to account for net
proceeds and other cash (after deducting, in each case, the fee of the
Depositary and other expenses set forth in the Deposit Agreement for the
surrender of an ADR and any applicable taxes or other governmental charges)
and certain indemnification obligations. Upon termination of the Deposit
Agreement, the Registrant will also be discharged from all obligations
thereunder, except for certain obligations to the Depositary.
CHARGES OF DEPOSITARY
The Depositary will charge (to the extent permitted by applicable law) any
party depositing or withdrawing Preferred Shares or any party surrendering
ADRs or to whom ADRs are issued (including, without limitation, issuance
pursuant to a stock dividend or stock split declared by the Company or an
exchange of stock regarding the ADRs or Deposited Securities or a distribution
of ADRs pursuant to the Deposit Agreement), whichever is applicable: (1) taxes
and other governmental charges, (2) such registration fees as may from time to
time be in effect for the registration of transfers of Preferred Shares
generally on the register of the Registrant or the Registrar and applicable to
transfers of Preferred Shares to the name of the Depositary or its nominee or
the Custodian or its nominee on the making of deposits or withdrawals under
the Deposit Agreement, (3) such cable, telex and facsimile transmission
expenses as are expressly provided in the Deposit Agreement to be at the
expense of persons depositing Preferred Shares or Owners, (4) such expenses as
are incurred by the Depositary in the conversion of foreign currency pursuant
to the Deposit Agreement, (5) a fee not in excess of $5.00 per 100 ADSs (or
portion thereof) for the execution and delivery of ADRs pursuant to the
Deposit Agreement and the surrender of ADRs pursuant to the Deposit Agreement,
(6) a fee for the distribution of proceeds of sales of securities or rights
pursuant to the Deposit Agreement, such fee (which may be deducted from such
proceeds) being in an amount equal to the lesser of (i) the fee for issuance
of ADSs referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this clause treating all such
securities as if they were Preferred Shares) or Preferred Shares received in
exercise of rights distributed to them pursuant to the Deposit Agreement, but
which securities or rights are instead sold by the Depositary and the net
proceeds distributed and (ii) the amount of such proceeds.
The Depositary, pursuant to the Deposit Agreement, may own and deal in any
class of securities of the Company and its affiliates and in ADRs.
LIABILITY OF OWNERS OR BENEFICIAL OWNERS FOR TAXES OR OTHER CHARGES
If any tax or other governmental charge shall become payable by the
Custodian, the Depositary or its nominee with respect to any ADR or any
Deposited Securities represented by the ADSs evidenced by such ADR, such tax
or other governmental charge will be payable by the Owner or Beneficial Owner
of such ADR. The
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Depositary may refuse to effect registration of transfer of such ADR or any
split-up or combination thereof or any withdrawal of Deposited Securities
underlying such ADR until such payment is made, and may withhold any dividends
or other distributions or may sell for the account of such Owner or Beneficial
Owner any part or all of the Deposited Securities underlying such ADR and may
apply such dividends or distributions or the proceeds of any such sale in
payment of any such tax or other governmental charge (and any taxes or
expenses arising out of such sale) and the Owner or Beneficial Owner of such
ADR will remain liable for any deficiency.
LIMITATION ON EXECUTION, DELIVERY, TRANSFER AND SURRENDER OF ADRS
The ADRs are transferable on the books of the Depositary, provided that the
Depositary may close the transfer books after consultation with the Registrant
to the extent practicable at any time or from time to time when deemed
expedient by it in connection with the performance of its duties or at the
request of the Registrant.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any ADR, the delivery of any
distribution thereon or the withdrawal of Deposited Securities, the
Depositary, the Registrant, the Custodian or the Registrar may require payment
from the depositor of Preferred Shares or the presenter of the ADR of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such
tax, charge or fee with respect to Preferred Shares being deposited or
withdrawn) and payment of any other applicable fees provided for in the
Deposit Agreement. The Depositary may refuse to deliver ADRs, register the
transfer of any ADR or make any distribution of, or related to, the Preferred
Shares until it has received such proof of citizenship, residence, exchange
control approval, compliance with all applicable laws or regulations, or other
information as it may reasonably deem necessary or proper. The delivery,
transfer, registration of transfer, split-up, combination and surrender of
ADRs generally may be suspended or refused during any period when the transfer
books of the Depositary, the Registrant or the Registrar are closed or if any
such action is deemed necessary or advisable by the Depositary or the
Registrant, at any time or from time to time.
The Depositary will keep books, at its Corporate Trust Office, for the
registration and transfer of ADRs, which at all reasonable times will be open
for inspection by the Owners, provided that such inspection will not be for
the purpose of communicating with Owners in the interest of a business or
object other than the business of the Registrant or a matter related to the
Deposit Agreement or the ADRs.
The Depositary may upon notice to the Registrant appoint one or more co-
transfer agents reasonably acceptable to the Registrant for the purpose of
effecting transfers, combinations and split-ups of ADRs at designated transfer
offices on behalf of the Depositary. In carrying out its functions, a co-
transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Owners or persons entitled to ADRs
and will be entitled to protection and indemnity to the same extent as the
Depositary.
LIMITATION OF LIABILITY
Neither the Depositary nor the Registrant nor any of their respective
directors, employees, agents or affiliates will be liable to any Owners or
Beneficial Owners of ADRs if by reason of any provision of any present or
future law or regulation of the United States, Brazil or any other country, or
of any other governmental or regulatory authority or stock exchange, or by
reason of any provision, present or future, of the By-laws, or by reason of
any act of God or war or other circumstance beyond its control, the Depositary
or the Registrant or any of their respective directors, employees, agents, or
affiliates shall be prevented, delayed or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any act or thing
which by terms of the Deposit Agreement it is provided will be done or
performed; nor will the Depositary or the Registrant incur any liability to
any Owner or Beneficial Owner of any ADR by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which by
the terms of the Deposit Agreement it is provided will or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion
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provided for under the Deposit Agreement. Where, by the terms of a
distribution pursuant to the Deposit Agreement, or an offering or distribution
pursuant to the Deposit Agreement, or for any other reason, the Depositary is
prevented or prohibited from making such distribution or offering available to
Owners, and the Depositary is prevented or prohibited from making such
distribution or offering on behalf of such Owners and making the net proceeds
available to such Owners, then the Depositary, after consultation with the
Registrant, will not make such distribution or offering, and will allow the
rights, if applicable, to lapse.
The Registrant and the Depositary assume no obligation nor will they be
subject to any liability under the Deposit Agreement to Owners or Beneficial
Owners of ADRs, except that they agree to perform their respective obligations
specifically set forth under the Deposit Agreement without negligence or bad
faith.
GOVERNING LAW
The Deposit Agreement is governed by the laws of the State of New York.
PART III
ITEM 15: DEFAULTS UPON SENIOR SECURITIES
The Company is party to certain credit agreements that contain covenants
restricting, among other things, (i) the ability of Telebras to dispose of all
or a substantial part of its assets or to cease to control a company that was
an operating subsidiary of the Telebras System and (ii) the ability of the
Federal Government to dispose of its controlling interest in the Telebras
System. The Breakup of Telebras on May 22, 1998, the privatization of the New
Holding Companies on July 29, 1998 and the announced liquidation of Telebras
constitute events of default under such credit agreements. In addition, most
of the Company's other credit agreements include cross-default provisions and
cross-acceleration provisions that would permit the holders of such
indebtedness to declare the indebtedness to be in default and to accelerate
the maturity thereof if a significant portion of the principal amount of the
Company's debt is in default or accelerated. The total amount of the Company's
outstanding debt as of December 31, 1997 which is currently or expected to be
in default is approximately R$45.9 million. The Company is currently in
negotiations with its third-party creditors with respect to this indebtedness.
Although none of the Company's creditors has notified the Company that it
intends to pursue its rights and remedies with respect to these defaults,
there can be no assurance that the Company will be able to obtain waivers or
that the creditors will not exercise their rights and remedies under the
credit agreements.
ITEM 16: CHANGES IN SECURITIES AND CHANGES IN SECURITY FOR REGISTERED
SECURITIES
Not applicable.
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PART IV
ITEM 17: CONSOLIDATED FINANCIAL STATEMENTS
The Registrant has responded to Item 18 in lieu of responding to this Item.
ITEM 18: CONSOLIDATED FINANCIAL STATEMENTS
Reference is made to pages F-1 through F-43.
ITEM 19: CONSOLIDATED FINANCIAL STATEMENTS AND EXHIBITS
(a) The following Financial Statements are filed as part of this Form 20-F:
Independent Auditors' Report
Consolidated Balance Sheets as of December 31, 1996 and 1997
Consolidated Statements of Income for the Years Ended December 31, 1995,
1996 and 1997
Consolidated Statements of Cash Flows for the Years Ended December 31,
1995, 1996 and 1997
Consolidated Statements of Changes in Shareholders' Equity for the Years
Ended December 31, 1995, 1996 and 1997
Notes to the Consolidated Financial Statements
(b) Exhibits
1.1 Charter of the Registrant
1.2 Charter of the Registrant (English translation)
2.1 Deposit Agreement dated as of July 27, 1998 among the Registrant,
The Bank of New York, as Depositary, and Owners and Beneficial
Owners of American Depositary Receipts issued thereunder
10.1 Standard Concession Agreement for Local, Switched, Fixed-Line
Telephone Service and Schedule of Omitted Concession Agreements
10.2 Standard Concession Agreement for Local, Switched, Fixed-Line
Telephone Service and Schedule of Omitted Concession Agreements
(English translation)
10.3 Standard Concession Agreement for Domestic Long-Distance, Switched,
Fixed-Line Telephone Service and Schedule of Omitted Concession
Agreements
10.4 Standard Concession Agreement for Domestic Long-Distance, Switched,
Fixed-Line Telephone Service and Schedule of Omitted Concession
Agreements (English translation)
23.1 Consent of KPMG Peat Marwick
78
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the Registrant certifies that it meets all of the requirements for
filing this registration statement on Form 20-F and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized.
Tele Centro Sul Participacoes S.A.
/s/ Ari Joaquim da Silva
By:__________________________________
Name: Ari Joaquim da Silva
Title: President
/s/ Giorgio Bampi
By: _________________________________
Name: Giorgio Bampi
Title: Support Executive Officer
Dated: September 18, 1998
79
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
CONTENTS
<TABLE>
<S> <C>
Independent Auditors' Report.................................. F-2
Consolidated Balance Sheets................................... F-3
Consolidated Statements of Income............................. F-5
Consolidated Statements of Cash Flows......................... F-6
Consolidated Statements of Changes in Shareholders' Equity.... F-7
Notes to the Consolidated Financial Statements................ F-8 through F-43
</TABLE>
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Shareholders
Tele Centro Sul Participacoes S.A.
Brasilia--DF
We have audited the accompanying consolidated balance sheets of Tele Centro
Sul Participacoes S.A. as of December 31, 1996 and 1997, and the related
consolidated statements of income, cash flows and changes in shareholders'
equity for each of the years in the three-year period ended December 31, 1997.
These consolidated financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards in Brazil, which do not differ in any material respects from
generally accepted auditing standards in the United States of America. Those
standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence
supporting amounts and disclosures in the consolidated financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Tele
Centro Sul Participacoes S.A. as of December 31, 1996 and 1997, and the
results of its operations and cash flows for each of the years in the three-
year period ended December 31, 1997, in conformity with accounting principles
generally accepted in Brazil, including continued recognition of the effects
of changes in the purchasing power of the Brazilian currency as discussed in
Note 2.
Generally accepted accounting principles in Brazil vary in certain respects
from generally accepted accounting principles in the United States of America.
Application of generally accepted accounting principles in the United States
of America would have affected results of operations for each of the years in
the two-year period ended December 31, 1997 and shareholders' equity as of
December 31, 1996 and 1997 to the extent summarized in Note 29 of the
consolidated financial statements.
July 17, 1998
Brasilia, Brazil
KPMG Peat Marwick
F-2
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
CONSOLIDATED BALANCE SHEETS
AS AT DECEMBER 31, 1996 AND 1997
(IN THOUSANDS OF CONSTANT BRAZILIAN REAIS--R$ OF DECEMBER 31, 1997 AND
THOUSANDS OF US DOLLARS--US$)
<TABLE>
<CAPTION>
DECEMBER 31
---------------------------------
1996 1997 1997
NOTE R$ R$ US$
---- --------- --------- -------------
UNAUDITED
(SEE NOTE 2B)
<S> <C> <C> <C> <C>
Current assets:
Cash and cash equivalents:
Deposits with Banco do Brasil S.A. .... 24 234,956 138,239 123,826
Other cash and cash equivalents........ 10 29,235 25,041 22,430
Accounts receivable:
Trade, net............................. 11 328,816 379,297 339,750
Receivable from related parties........ 24 9,033 6,941 6,217
Deferred and recoverable taxes.......... 12 67,327 114,232 102,322
Other assets:
Other accounts receivable from related
parties............................... 24 1,854 1,998 1,790
Other.................................. 13 81,897 71,495 64,040
--------- --------- ---------
Total current assets................... 753,118 737,243 660,375
--------- --------- ---------
Noncurrent assets:
Deferred and recoverable taxes......... 12 56,084 64,097 57,414
Other.................................. 13 50,404 83,998 75,240
--------- --------- ---------
Total noncurrent assets................ 106,488 148,095 132,654
--------- --------- ---------
Permanent assets:
Investments............................ 14 23,149 28,690 25,699
Property, plant and equipment, net..... 15 5,963,131 6,444,519 5,772,590
--------- --------- ---------
Total permanent assets................. 5,986,280 6,473,209 5,798,289
--------- --------- ---------
Net assets of discontinued operations... 2d 684,261 1,122,409 1,005,382
--------- --------- ---------
Total assets........................... 7,530,147 8,480,956 7,596,700
--------- --------- ---------
</TABLE>
See the accompanying notes to the consolidated financial statements.
F-3
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
CONSOLIDATED BALANCE SHEETS--(CONTINUED)
AS AT DECEMBER 31, 1996 AND 1997
(IN THOUSANDS OF CONSTANT BRAZILIAN REAIS--R$ OF DECEMBER 31, 1997 AND
THOUSANDS OF US DOLLARS--US$)
<TABLE>
<CAPTION>
DECEMBER 31
---------------------------------
1996 1997 1997
NOTE R$ R$ US$
------ --------- --------- -------------
UNAUDITED
(SEE NOTE 2B)
<S> <C> <C> <C> <C>
Current liabilities:
Payroll and related accruals......... 16 106,973 102,117 91,470
Accounts payable and accrued
expenses:
Payable to related parties.......... 24 31,062 30,522 27,339
Other............................... 173,575 149,288 133,723
Taxes other than income taxes........ 17 105,982 138,449 124,014
Income taxes......................... 8 87,726 48,733 43,652
Dividends:
Payable to Telebras................. 18, 24 137,317 139,748 125,177
Other............................... 18 33,120 65,127 58,337
Loans and financing:
Payable to Telebras................. 24 64,649 95,748 85,765
Other financing..................... 19 39,542 14,666 13,137
Provisions for contingencies......... 20 82,012 102,190 91,535
Other liabilities:
Due to related parties.............. 24 8,748 4,189 3,752
Other liabilities................... 17,826 25,606 22,936
--------- --------- ---------
Total current liabilities........... 888,532 916,383 820,837
--------- --------- ---------
Noncurrent liabilities:
Income taxes......................... 8 169,022 255,879 229,200
Loans and financing:
Payable to Telebras................. 19, 24 47,466 152,748 136,821
Other financing..................... 19 94,888 31,246 27,989
Provision for pensions............... 21 123,044 127,887 114,553
Provisions for contingencies......... 20 23,286 25,247 22,615
Other liabilities.................... 809 891 798
--------- --------- ---------
Total noncurrent liabilities........ 458,515 593,898 531,976
--------- --------- ---------
Minority interests................... 2 863,798 1,375,041 1,231,675
--------- --------- ---------
Shareholders' equity:
Capital and reserves................ 3,996,807 4,221,163 3,781,048
Retained earnings................... 971,847 1,189,663 1,065,625
--------- --------- ---------
Total shareholders' equity........... 22 4,968,654 5,410,826 4,846,673
--------- --------- ---------
Funds for capitalization:
Expansion plan contributions........ 347,358 173,876 155,747
Other funds......................... 3,290 10,932 9,792
--------- --------- ---------
Total funds for capitalization...... 350,648 184,808 165,539
--------- --------- ---------
Total liabilities and shareholders'
equity............................. 7,530,147 8,480,956 7,596,700
========= ========= =========
</TABLE>
See the accompanying notes to the consolidated financial statements.
F-4
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
CONSOLIDATED STATEMENTS OF INCOME
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
(IN THOUSANDS OF CONSTANT BRAZILIAN REAIS--R$ OF DECEMBER 31, 1997 AND
THOUSANDS OF US DOLLARS--US$)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31
------------------------------------------------
1995 1996 1997 1997
NOTE R$ R$ R$ US$
---- --------- ---------- ---------- -------------
UNAUDITED
(SEE NOTE 2B)
<S> <C> <C> <C> <C> <C>
Net operating revenue
from telecommunication
services:
Services provided to
third parties......... 4 1,502,152 1,911,907 2,120,516 1,899,423
Services provided to
the Telebras operating
companies............. 24 91,549 168,068 235,096 210,584
--------- ---------- ---------- ----------
1,593,701 2,079,975 2,355,612 2,110,007
Cost of services:
Provided by third
parties............... 5 (930,219) (1,001,786) (1,049,429) (940,011)
Provided by the
Telebras operating
companies............. 24 (67,413) (109,310) (189,562) (169,798)
--------- ---------- ---------- ----------
(997,632) (1,111,096) (1,238,991) (1,109,809)
--------- ---------- ---------- ----------
Gross profit............. 596,069 968,879 1,116,621 1,000,198
Operating expenses:
Selling expense........ (153,870) (174,079) (229,555) (205,621)
General and
administrative
expense............... (318,507) (351,471) (380,776) (341,075)
Other net operating
income................ 6 94,512 130,839 148,326 132,861
--------- ---------- ---------- ----------
Operating income from
continuing operations
before interest
income/expense ......... 218,204 574,168 654,616 586,363
Allocated interest
expense................. (17,697) (10,125) (34,864) (31,229)
--------- ---------- ---------- ----------
Operating income from
continuing operations
before unallocated
interest income/expense
........................ 200,507 564,043 619,752 555,134
Net nonoperating
expense................. 7 (1,348) (16,433) (25,094) (22,478)
Employees' profit share.. (8,475) (17,068) (26,524) (23,759)
--------- ---------- ---------- ----------
Income from continuing
operations, before
unallocated interest
income/expense, taxes
and minority interests
........................ 190,684 530,542 568,134 508,897
Income from discontinued
cellular operations,
before unallocated
interest income/expense,
taxes and
minority interests...... 2d 149,135 297,274 341,636 306,016
Unallocated interest
income.................. 40,418 60,612 61,913 55,458
Unallocated interest
expense................. (3,678) (1,488) (2,870) (2,571)
--------- ---------- ---------- ----------
Income before taxes and
minority interests...... 376,559 886,940 968,813 867,800
Income and social
contribution taxes...... 8 (164,519) (231,713) (266,949) (239,116)
--------- ---------- ---------- ----------
Income before minority
interests............... 212,040 655,227 701,864 628,684
Minority interests....... 2c (26,910) (92,925) (138,599) (124,148)
--------- ---------- ---------- ----------
Net income............... 185,130 562,302 563,265 504,536
========= ========== ========== ==========
</TABLE>
See the accompanying notes to the consolidated financial statements.
F-5
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
(IN THOUSANDS OF CONSTANT BRAZILIAN REAIS--R$ OF
DECEMBER 31, 1997 AND THOUSANDS OF US DOLLARS--US$)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31
------------------------------------------------
1995 1996 1997 1997
R$ R$ R$ US$
-------- ---------- ---------- --------------
UNAUDITED
(SEE NOTE 2B)
<S> <C> <C> <C> <C>
OPERATING ACTIVITIES:
Net income.................... 185,130 562,302 563,265 504,536
Less: Income from discontinued
cellular operations before
unallocated interest
income/expense, taxes and
minority interests........... (149,135) (297,274) (341,636) (306,016)
-------- ---------- ---------- ----------
Income from continuing
operations, net of
unallocated interest
income/expense and taxes
applicable to both continuing
and discontinued operations.. 35,995 265,028 221,629 198,520
Adjustments to reconcile net
income to cash provided by
operating activities:
Depreciation and
amortization................ 604,419 635,559 706,073 632,455
Minority interests........... 26,910 92,925 138,599 124,148
Loss (gain) on permanent
asset disposals............. (19,117) 4,871 20,751 18,587
Other provisions............. 4,909 1,451 4,457 3,992
Allowance for doubtful
accounts.................... 2,613 6,860 31,216 27,961
(Increase) decrease in income
tax rate.................... 24,438 2,286 13,241 11,860
(Increase) decrease in trade
accounts receivable, gross.. (6,810) (67,739) (79,605) (71,305)
(Increase) decrease in other
current assets.............. (21,687) (26,036) 10,258 9,188
(Increase) decrease in other
noncurrent assets........... (230) (20,607) 5,027 4,503
Increase (decrease) in
payroll and related
accruals.................... 20,406 (1,092) (4,856) (4,350)
Increase (decrease) in
accounts payable and accrued
expenses.................... (4,715) 97,180 (24,827) (22,238)
Increase (decrease) in taxes
other than income taxes..... 13,808 16,923 32,467 29,082
Increase (decrease) in other
current liabilities......... 2,376 6,829 3,221 2,885
Increase (decrease) in
accrued interest............ (13,148) 4,056 9,492 8,502
Increase (decrease) in income
taxes....................... 25,425 (71,356) (127,662) (114,351)
Increase (decrease) in
provisions for
contingencies............... (838) 33,425 22,139 19,831
Increase (decrease) in
provision for pensions...... 13,007 1,173 4,843 4,338
Increase (decrease) in other
noncurrent liabilities...... (6,728) 293 82 73
-------- ---------- ---------- ----------
701,033 982,029 986,545 883,681
-------- ---------- ---------- ----------
INVESTING ACTIVITIES:
Additions to investments...... 3,515 6,863 (3,825) (3,426)
Additions to property, plant
and equipment................ (905,879) (1,098,656) (1,125,019) (1,007,720)
Capitalized interest.......... (4,239) (251) -- --
Proceeds from asset
disposals.................... 42,509 23,554 44,696 40,036
-------- ---------- ---------- ----------
(864,094) (1,068,490) (1,084,148) (971,110)
-------- ---------- ---------- ----------
FINANCING ACTIVITIES:
Loans repaid.................. (152,943) (125,279) (157,559) (141,131)
New loans obtained............ 96,384 178,389 195,930 175,502
Expansion plan contributions
received..................... 323,250 240,952 222,585 199,377
Dividends paid................ (101,203) (89,456) (157,226) (140,833)
-------- ---------- ---------- ----------
165,488 204,606 103,730 92,915
-------- ---------- ---------- ----------
Increase in cash and cash
equivalents from continuing
operations................... 2,427 118,145 6,127 5,486
Net cash used in discontinued
operations, before
unallocated interest
income/expense and taxes..... (5,344) (22,945) (107,038) (95,878)
Cash and cash equivalents at
beginning of year............ 171,908 168,991 264,191 236,648
-------- ---------- ---------- ----------
Cash and cash equivalents at
end of year.................. 168,991 264,191 163,280 146,256
======== ========== ========== ==========
</TABLE>
See the accompanying notes to the consolidated financial statements.
F-6
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
(IN THOUSANDS OF CONSTANT BRAZILIAN REAIS--R$ OF DECEMBER 31, 1997)
<TABLE>
<CAPTION>
CAPITAL
AND RETAINED
RESERVES EARNINGS TOTAL
--------- --------- ---------
<S> <C> <C> <C>
Balances at December 31, 1994.................. 3,270,969 645,229 3,916,198
Capital increase:
Expansion plan contributions................. 166,218 -- 166,218
Cash from Telebras........................... 21,648 -- 21,648
Other cash................................... 15,765 -- 15,765
Donations and subsidies for investments........ 16,103 -- 16,103
Interest on construction in progress........... 87,959 -- 87,959
Change in tax rates............................ 24,438 -- 24,438
Fiscal incentives.............................. 15,433 -- 15,433
Forfeited dividends............................ -- (292) (292)
Net income..................................... -- 185,130 185,130
Realization of unrealized income............... (42,380) 42,380 --
Transfers...................................... 117,362 (117,362) --
Dividends...................................... -- (93,391) (93,391)
Minority interest movements.................... (32,801) 26,120 (6,681)
--------- --------- ---------
Balances at December 31, 1995.................. 3,660,714 687,814 4,348,528
Capital increase:
Expansion plan contributions................. 232,446 -- 232,446
Cash from Telebras........................... 8,105 -- 8,105
Other cash................................... 16,806 -- 16,806
Donations and subsidies for investments........ 9,696 -- 9,696
Interest on construction in progress........... 137,617 -- 137,617
Change in tax rates............................ (3,085) 5,371 2,286
Fiscal incentives.............................. 21,936 -- 21,936
Forfeited dividends............................ -- (69) (69)
Net income..................................... -- 562,302 562,302
Deferred tax on full indexation................ -- (159,593) (159,593)
Realization of unrealized income............... (32,797) 32,043 (754)
Transfers...................................... 32,432 (32,432) --
Dividends...................................... -- (161,770) (161,770)
Minority interest movements.................... (87,063) 38,181 (48,882)
--------- --------- ---------
Balances at December 31, 1996.................. 3,996,807 971,847 4,968,654
Capital increase:
Expansion plan contributions................. 348,098 -- 348,098
Cash from Telebras........................... 1,564 -- 1,564
Other cash................................... 38,763 -- 38,763
Donations and subsidies for investments........ 20,301 -- 20,301
Interest on construction in progress........... 126,601 -- 126,601
Change in tax rates............................ 13,241 -- 13,241
Fiscal incentives.............................. 44,794 -- 44,794
Forfeited dividends............................ -- 1,187 1,187
Net income..................................... -- 563,265 563,265
Deferred tax on full indexation................ -- (150,147) (150,147)
Realization of unrealized income............... (26,864) 26,864 --
Transfers...................................... 35,789 (35,789) --
Dividends...................................... -- (192,851) (192,851)
Minority interest movements.................... (377,931) 5,287 (372,644)
--------- --------- ---------
Balances at December 31, 1997.................. 4,221,163 1,189,663 5,410,826
========= ========= =========
</TABLE>
See the accompanying notes to the consolidated financial statements.
F-7
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
1. OPERATIONS AND BACKGROUND
Beginning in 1995, the federal government of Brazil (the "Federal
Government") undertook a comprehensive reform of the telecommunications
industry. In July, 1995 the Federal Congress adopted a General
Telecommunications Law providing for the privatization of Telecomunicacoes
Brasileiras S.A. ("Telebras") which, through its 28 operating subsidiaries,
was the primary supplier of public telecommunications services in Brazil.
In preparation for the privatization of the Telebras system, the operating
subsidiaries have been divided into twelve separate groups, (a) three regional
fixed line operators, (b) eight regional cellular operators and (c) one
national long-distance operator. The cellular telecommunications businesses
have firstly been separated from the operating subsidiaries and subsequently
the fixed-line businesses, the new cellular businesses and the long-distance
operator have been combined into the twelve separate groups. Both the
separation of the cellular businesses and the subsequent grouping of the
former Telebras subsidiaries have been performed using a procedure under
Brazilian corporate law called cisao or "spin-off". As part of this process
Tele Centro-Sul Participacoes S.A. (the "Holding Company") was formed.
The Holding Company was formed on May 22, 1998, through the spin-off of
certain assets and liabilities of Telebras, including the percentages of
participation in the share capital of the following companies (collectively
referred to as "the Subsidiaries"):
<TABLE>
<CAPTION>
MINORITY
INTEREST
PARTICIPATION PERCENTAGE
------------- ----------
<S> <C> <C>
Telecomunicacoes de Santa Catarina S.A. ............. 82.99% 17.01%
Telecomunicacoes de Parana S.A. ..................... 67.31% 32.69%
Companhia Telefonica Melhoramento e Resistencia
S.A. ............................................... 78.56% 21.44%
Telecomunicacoes de Goias S.A. ...................... 83.77% 16.23%
Telecomunicacoes do Mato Grosso do Sul S.A. ......... 96.01% 3.99%
Telecomunicacoes do Mato Grosso S.A. ................ 91.87% 8.13%
Telecomunicacoes de Rondonia S.A. ................... 91.31% 8.69%
Telecomunicacoes do Acre S.A. ....................... 93.98% 6.02%
Telecomunicacoes de Brasilia S.A. ................... 81.40% 18.60%
</TABLE>
Until August 4, 1998, the Companies were controlled by the Federal
Government (see Note 28).
Tele Centro Sul Participacoes S.A. and its subsidiaries (the "Companies")
are the principal providers of fixed-line telecommunications services in the
states of Santa Catarina, Parana, Goias, Tocantins, Mato Grosso do Sul, Mato
Grosso, Rondonia, Acre, the Federal District and in the region of Pelotas in
the state of Rio Grande do Sul under the terms of a concession to be granted
by the Federal Government which will expire on December 31, 2005 and may be
renewed for a further term of 20 years.
On January 30, 1998 the cellular telecommunications businesses of the
Companies were spun off into nine new companies (the "Cellular Companies"),
effective January 1, 1998.
The Companies' business, including the services they may provide and the
rates they charge, is regulated by Agencia Nacional de Telecomunicacoes
(Anatel), the regulatory authority for the Brazilian telecommunications
industry pursuant to Law No. 9,472 of July 16, 1997 and the related
regulations, decrees, orders and plans.
F-8
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
2. PRESENTATION OF THE FINANCIAL STATEMENTS
The consolidated financial statements reflect the financial condition and
results of operations of Tele Centro Sul Participacoes S.A. and its
subsidiaries. The portion of equity and net income attributable to
shareholders other than Telebras at December 31, 1996 and 1997, and for each
of the years in the three year period ended December 31, 1997 is reflected as
"minority interests". At December 31, 1997, such minority shareholders
participated in the share capital of the Companies at various percentages
between 3.99% and 32.69% (see Note 1).
The fixed line telecommunications business of the Companies is presented as
continuing operations and the cellular telecommunications business is
presented as discontinued operations for all periods. The assets and
liabilities of the cellular telecommunications business are presented as net
assets of discontinued operations. The formation of the Holding Company and
the transfer of assets and liabilities from the Companies to the Cellular
Companies have been accounted for as a reorganization of entities under common
control in a manner similar to a pooling of interests.
The assets and liabilities of the cellular telecommunications businesses
were transferred to the nine newly formed Cellular Companies at their indexed
historical cost. The associated revenues and expenses were also allocated to
the respective regional cellular companies. The consolidated financial
statements are not necessarily indicative of the financial position and
results of operations that would have occurred for the three-year period ended
December 31, 1997 had the fixed-line telecommunications businesses of the
Companies been separate legal entities during such period.
As separate records of revenues and costs of services were maintained for
the cellular business, the actual amounts could be identified and transferred.
With respect to costs other than costs of services, the methodologies employed
in transferring the assets and liabilities included the specific
identification of costs associated with those assets and liabilities, and the
allocation of costs where specific identification was not possible.
Allocations were made using criteria established by management that were
designed to ensure that all relevant costs were appropriately included in the
results of operations for the periods presented. The allocation criteria
included: square footage (in relation to land and building related expenses),
number of terminals (in relation to general management, accounting, data
processing, legal department and other general staff functions), number of
employees (in relation to human resource related expenses), number of
requisitions issued (in relation to office material costs) and miles driven
for certain transport costs. Management believes that the amounts included in
the consolidated financial statements fairly reflect the operating results of
the business.
Prior to December 31, 1997 cash and certain non-specific debt of the
cellular telecommunications business could not be segregated from the
Companies. Accordingly, these amounts are included in the combined financial
statements for periods ended before January 1, 1998. As a result, certain
interest income and expense relating to the cellular telecommunications
business could not be identified and consequently, income from discontinued
operations is presented before unallocated interest income/expense and taxes.
The presentation of the consolidated financial statements is consistent with
the presentation of the published financial statements of the Companies, from
which the accompanying financial information was extracted, except for certain
reclassifications within the Consolidated Balance Sheets and the Consolidated
Statements of Income which have been made to conform to previously published
financial information to the 1997 presentation within this registration
statement, for the presentation of the cellular businesses of the Companies as
discontinued operations and to reflect the portion of equity and net income
attributable to shareholders other than Telebras as minority interests.
Furthermore, the accompanying financial statements include an additional
provision for
F-9
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
doubtful debts of R$11,400, additional provisions for the Telepar
supplementary pension plan (See Note 21) of R$11,077 and the resulting effect
on deferred income taxes. This additional provision resulted from a
reevalution of the Company's probable losses in relation to trade accounts
receivable at December 31, 1997 in the light of the collection experience for
the first quarter of 1998. The Companies will not restate their previously
reported results as the provision for doubtful debts recorded in their
December 31, 1997 financial statements was considered adequate in the light of
information available at the date on which they were published.
The accompanying consolidated financial statements were prepared on a fully
indexed basis to recognize the effects of changes in the purchasing power of
the Brazilian currency during the periods presented.
A. FULL INDEXATION TO DECEMBER 31, 1997
The principal criteria adopted to prepare the fully indexed consolidated
financial statements maintained in accordance with the practices described in
Note 3, are as follows:
i. Inflation restatement index
The consolidated financial statements were indexed and expressed in currency
of constant purchasing power of December 31, 1997 by using the monthly average
values of the Unidade Fiscal de Referencia (the Tax Reference Unit or "UFIR")
through December 31, 1995 and the Indice Geral de Precos-Mercado (the General
Prices Index-Market or the "IGP-M") of the Fundacao Getulio Vargas in 1996 and
1997 following the cessation of the widespread use of the UFIR that resulted
from the change in Brazil's corporate law. Inflation for the three year period
ended December 31, 1997, as measured by the UFIR and the IGP-M, was as
follows:
<TABLE>
<CAPTION>
ANNUAL
PERIOD INDEX INFLATION
------ ----- ---------
%
<S> <C> <C>
Year ended December 31, 1995................................. UFIR 22.5
Year ended December 31, 1996................................. IGP-M 9.2
Year ended December 31, 1997................................. IGP-M 7.7
</TABLE>
Management believes that these indices are appropriate indications of
general price level inflation to be used under Brazilian and US GAAP, for the
years indicated.
In July 1997, the three-year cumulative inflation rate for Brazil fell below
100%. However, for accounting purposes, the constant currency method continued
to be applied through December 31, 1997. The Brazilian Institute of
Accountants has not yet published definitive rules regarding when the constant
currency method of accounting may no longer be used to prepare financial
statements. If the Brazilian Institute of Accountants determines that the
constant currency method may no longer be used to prepare financial statements
beginning January 1, 1998, the restated balances of non-monetary assets and
liabilities of the Companies as of December 31, 1997 will become the new basis
for accounting, and income statement items will no longer be restated for
inflation.
ii. Consolidated statements of income
Items in the consolidated statements of income are adjusted to the balance
sheet date by:
. allocating inflationary holding gains or losses on interest bearing
monetary assets and liabilities to their corresponding interest income
and expense captions;
F-10
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
. allocating inflationary holding gains and losses from other monetary
items to their corresponding income or expense captions. Amounts without
a corresponding income or expense caption were allocated to "other net
operating income".
iii. Deferred income tax effects of indexation adjustments in 1996 and 1997
As a result of legislation mandating the discontinuation of the indexation
system for Brazilian corporate law and most fiscal purposes as from January 1,
1996, the indexation of assets and liabilities for financial reporting
purposes herein is not permitted for tax purposes. Accordingly, a deferred tax
liability arises for the excess of net assets shown for financial reporting
purposes over the tax basis of these net assets. The charge relating to the
additional deferred tax liability of R$159,593 in 1996 and R$150,147 in 1997
was recorded directly against retained earnings.
B. TRANSLATION OF CONSTANT BRAZILIAN REAL AMOUNTS INTO US DOLLAR AMOUNTS
The translation of Brazilian Real amounts into US dollar amounts is
unaudited and included solely for the convenience of readers outside of Brazil
and has been performed using the closing selling exchange rate published by
the Central Bank of Brazil of R$1.1164 to US$1.00 as of December 31, 1997.
This translation should not be construed as a representation that Brazilian
Real amounts could be converted to US dollars at this or any other rate.
C. MINORITY INTERESTS
Minority interests relate to the interest of shareholders other than
Telebras in the Companies.
D. DISCONTINUED OPERATIONS
The accompanying consolidated financial statements reflect the cellular
telecommunications businesses of the Companies as discontinued operations.
Accordingly, the revenues, costs and expenses, assets and liabilities and cash
flows of these discontinued operations have been excluded from the respective
captions in the consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows and have been reported as "Income
from discontinued cellular operations before unallocated interest
income/expense, taxes and minority interest"; as "Net assets of discontinued
operations" and as "Net cash used in discontinued operations" for all periods
presented. Summarized financial information for the discontinued operations is
as follows:
<TABLE>
<CAPTION>
1995 1996 1997
------- --------- ---------
<S> <C> <C> <C>
Net operating revenues......................... 287,087 581,460 875,053
Income before unallocated interest
income/expense, taxes and minority interest... 149,135 297,274 341,636
Current assets......................................... 96,160 218,803
Property, plant and equipment, net..................... 903,374 1,151,242
Total assets........................................... 1,002,809 1,371,938
Current liabilities.................................... 142,737 70,455
Total liabilities...................................... 318,548 249,529
Net assets of discontinued operations.................. 684,261 1,122,409
</TABLE>
E. PRINCIPLES OF CONSOLIDATION
These consolidated financial statements include the financial records of the
Holding Company and its subsidiaries. All material intercompany balances and
transactions have been eliminated.
F-11
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
3. SUMMARY OF THE PRINCIPAL ACCOUNTING PRACTICES
A. CASH AND CASH EQUIVALENTS
Cash equivalents are considered to be all highly liquid temporary cash
investments with original maturity dates of three months or less.
B. TRADE ACCOUNTS RECEIVABLE
Accounts receivable from telephone subscribers are calculated at the tariff
rate on the date the services were rendered and discounted to their present
value at the balance sheet date by applying the interest rate published by the
National Association of Investment Bankers ("ANBID"). Customer accounts
receivable also include services provided to customers up to the balance sheet
date but not yet invoiced.
C. ALLOWANCE FOR DOUBTFUL ACCOUNTS
Provision is made for trade accounts receivable for which recoverability is
considered improbable.
D. FOREIGN CURRENCY TRANSACTIONS
Transactions in foreign currency are recorded at the prevailing exchange
rate at the time of the related transactions. Foreign currency denominated
assets and liabilities are translated using the exchange rate at the balance
sheet date. Exchange differences are recognized in the consolidated statement
of income as they occur.
E. INVENTORIES
Inventories are stated at the lower of indexed cost or replacement value.
Cost of inventories is determined principally on the average cost basis.
Inventories are separated into network expansion and maintenance inventories.
Inventories for use in network expansion are classified as "Construction-in-
progress" under "Property, plant and equipment". Maintenance inventories are
classified as other current assets.
F. INVESTMENTS
Other investments, which comprise items held to maturity or for investment
purposes, are recorded at indexed cost, less a provision for losses when
considered necessary.
G. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment is stated at indexed cost. Improvements to
existing property are capitalized while maintenance and repair costs are
charged to expense as incurred. Materials allocated to specific projects are
added to construction-in-process. Depreciation is provided using the straight-
line method based on the estimated useful lives of the underlying assets as
determined by the public telecommunications service regulators. The principal
depreciation rates are shown in Note 15(b).
Interest, calculated monthly at a rate of 12% per annum on construction-in-
process, is capitalized as part of property, plant and equipment until the
asset is placed in service.
H. ACCOUNTS PAYABLE
Accounts payable to suppliers are discounted to their present value using
the ANBID interest rate.
I. VACATION PAY ACCRUAL
Cumulative vacation pay due to employees is accrued as earned.
J. INCOME AND SOCIAL CONTRIBUTION TAXES
Income and social contribution taxes comprise federal income tax and social
contribution tax. Deferred taxes are provided on temporary differences.
F-12
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
K. LOANS AND FINANCING
Loans and financing include accrued interest to the consolidated balance
sheet date.
L. PROVISIONS FOR CONTINGENCIES
Provisions for contingencies are based on legal advice and management's
opinion as to the likely outcome of the outstanding matters at the
consolidated balance sheet date.
M. REVENUE RECOGNITION
Revenues for all services are recognized when the service is provided.
Revenues from local services consist of line rental charges, service charges
based on the number of calls, network services, including interconnection and
leasing high-capacity lines, maintenance charges and charges for other
customer services. In 1997 revenue from local services also includes
installation fees which are recognized when the installation is complete.
Charges to customers for domestic, long-distance and international calls are
based on time, distance and use of services. Billings are monthly; unbilled
revenues from the billing date to the month end are estimated and recognized
as revenue during the month in which the service was provided. The revenues
from outgoing interregional and international long-distance calls are divided
between the Companies and Empresa Brasileira de Telecomunicacoes S.A.
("Embratel"), a subsidiary of Telebras. The Companies retain a fixed
percentage of the customer charges for outgoing interregional and
international long-distance calls and pay the balance to Embratel.
N. INTEREST INCOME
Interest income represents interest earned and gains and losses on
investments after adjusting for the effects of inflation as measured by the
variation in the inflation index. Unallocated interest income represents
interest income that could not be allocated between continuing and
discontinued operations.
O. INTEREST EXPENSE
Interest expense represents interest incurred and gains and losses on loans
and financing after adjusting for the effects of inflation as measured by the
variation in the inflation index and exchange gains and (losses) of R$6,002,
R$3,502 and R$(7,614) in 1995, 1996 and 1997, respectively. Unallocated
interest expense represents interest expense that could not be allocated
between continuing and discontinued operations.
P. RESEARCH AND DEVELOPMENT
Research and development costs are charged to expense as incurred. Total
research and development costs were R$16,102, R$16,934 and R$16,094 for 1995,
1996 and 1997, respectively.
Q. PENSION AND POST-RETIREMENT BENEFITS
The Companies sponsor a separate entity that provides pensions and other
post-retirement benefits for its employees through a multi-employer plan.
Current contributions and costs are determined actuarially and are recorded on
the accrual basis.
R. EMPLOYEE'S PROFIT SHARE
The Companies have made a provision for granting employees the right to a
share of their profits. The amount recorded is the employee's profit share
attributable to the continuing fixed-line telecommunications business.
F-13
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
S. EARNINGS PER THOUSAND SHARES
Earnings per thousand shares has not been calculated as the capital
structure of Tele Centro Sul Participacoes S.A. was not in place at December
31, 1997.
T. SEGMENT INFORMATION
The Companies operate solely in the segment of local and regional fixed-line
telecommunications. All revenues are generated in relation to services
provided in the states of Santa Catarina, Parana, Goias, Tocantins, Mato
Grosso do Sul, Mato Grosso, Rondonia, Acre, the Federal District and in the
region of Pelotas in the State of Rio Grande do Sul.
U. USE OF ESTIMATES
The preparation of the consolidated financial statements in conformity with
Brazilian and US GAAP requires management to make estimates and assumptions
relating to the reporting of assets and liabilities and the disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the period reported.
Actual results could differ from those estimates.
4. OPERATING REVENUE FROM FIXED TELECOMMUNICATIONS SERVICES
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Local services:
Monthly charges........................... 111,579 235,847 449,683
Measured service charges.................. 267,539 400,128 532,562
Public telephones......................... 39,076 67,267 121,948
Other..................................... 120,953 169,654 170,090
--------- --------- ---------
Total................................... 539,147 872,896 1,274,283
Non-local services
Intra-state and interstate................ 1,234,635 1,309,452 1,091,638
International............................. 78,069 74,354 65,359
--------- --------- ---------
Total................................... 1,312,704 1,383,806 1,156,997
--------- --------- ---------
Data transmission........................... 75,099 99,739 89,775
Network services............................ 149,173 344,890 524,740
Other....................................... 24,850 35,938 40,459
--------- --------- ---------
Gross operating revenues.................... 2,100,973 2,737,269 3,086,254
Value added and other indirect taxes........ (503,908) (650,518) (722,448)
Discounts................................... (3,364) (6,776) (8,194)
--------- --------- ---------
Net operating revenue....................... 1,593,701 2,079,975 2,355,612
========= ========= =========
There are no customers who contribute more than 5% of gross operating
revenues.
5. COST OF SERVICES
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Depreciation and amortization............... 564,565 603,264 669,979
Personnel................................... 241,948 244,771 221,968
Materials................................... 28,833 33,027 29,933
Services.................................... 150,904 212,150 297,777
Other....................................... 11,382 17,884 19,334
--------- --------- ---------
997,632 1,111,096 1,238,991
========= ========= =========
</TABLE>
F-14
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
6. OTHER NET OPERATING INCOME (EXPENSE)
<TABLE>
<CAPTION>
1995 1996 1997
------- ------- -------
<S> <C> <C> <C>
Taxes other than income taxes..................... (2,205) (3,289) (1,392)
Technical and administrative services............. 9,821 12,724 25,129
Provisions for contingencies (Note 20)............ (36,694) (43,307) (37,831)
Fines and expenses recovered...................... 68,972 101,848 38,048
Other............................................. 54,618 62,863 124,372
------- ------- -------
94,512 130,839 148,326
======= ======= =======
</TABLE>
Fines and expenses recovered primarily represent penalties collected on past
due accounts receivable and recovery of sales taxes of prior periods. The
amount of penalties collected on past due accounts receivable amounted to
approximately R$55,657, R$78,026 and R$28,373 in 1995, 1996 and 1997,
respectively.
7. NET NONOPERATING EXPENSE
<TABLE>
<CAPTION>
1995 1996 1997
------- ------- -------
<S> <C> <C> <C>
Gain (loss) on disposal of permanent assets....... 19,117 (4,871) (20,751)
Other............................................. (20,465) (11,562) (4,343)
------- ------- -------
(1,348) (16,433) (25,094)
======= ======= =======
</TABLE>
8. INCOME AND SOCIAL CONTRIBUTION TAXES
As explained in Note 2, because cash and certain non specific debt was not
allocated to the cellular telecommunications business, the associated interest
income and expense was also not allocated. Consequently the Companies'
continuing operations include interest income and expense relating to
discontinued cellular operations. As a result, income tax expense and current
tax liabilities have not been allocated to the discontinued cellular
operations.
Brazilian income taxes comprise federal income tax and social contribution
tax. In 1995, 1996 and 1997 the rates for income tax were 43%, 25% and 25%
respectively, and for social contribution tax were 9.09%, 7.41% and 8.00%,
respectively. As a result of legislation enacted in 1996, the social
contribution tax in 1997 was no longer deductible from its own computation
base, nor was it deductible for income tax purposes. The changes produced a
combined statutory rate of 48.18%, 30.56% and 33.00% in 1995, 1996 and 1997,
respectively.
Deferred taxes are provided on temporary differences which include the
effects of indexation adjustments that will not give rise to deductions when
subsequently depreciated, amortized or disposed of.
In prior years the indexation adjustments to permanent assets and
shareholders' equity in accordance with the tax law gave rise to a tax
deductible expense, if the indexation of equity exceeded the indexation of
permanent assets, and to taxable income, called "inflationary profit", if the
indexation of permanent assets exceeded that of equity. In the latter case,
payment of the related tax liability could be deferred until it had been
deemed to have been realized either through depreciation or disposal of the
permanent assets in existence at the time the liability was recorded, subject
to a minimum realization rate of 10% per annum (5% per annum prior to 1995).
In 1996 and 1997, management elected to prepay income taxes on inflationary
profit that it had previously deferred. Brazilian companies making such a
prepayment in relation to 1997 were entitled to utilize an income tax rate of
10% instead of the then current rate of 25%. Similar reductions applied to the
prepayments
F-15
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
in 1995 and 1996. The result was a gain of R$0, R$28,342 and R$11,205 for 1995,
1996 and 1997, respectively, from the reduction in deferred tax liabilities.
The following is an analysis of the income tax expense (benefit):
<TABLE>
<CAPTION>
1995 1996 1997
------- -------- --------
<S> <C> <C> <C>
Social contribution charge...................... 36,287 66,204 79,295
Income tax...................................... 118,908 212,410 244,154
Fiscal losses................................... (1,304) (190) (2,497)
Deferred taxes.................................. 18,020 (16,418) (42,798)
Effect of rate changes on deferred tax.......... (7,392) (1,951) --
Early payment incentives........................ -- (28,342) (11,205)
------- -------- --------
Total tax expense............................. 164,519 231,713 266,949
======= ======== ========
Supplementary information regarding taxes posted directly to shareholders'
equity:
<CAPTION>
1995 1996 1997
------- -------- --------
<S> <C> <C> <C>
Deferred taxes.................................. -- (159,593) (150,147)
Effect of rate changes on deferred tax.......... 24,438 2,286 13,241
------- -------- --------
24,438 (157,307) (136,906)
======= ======== ========
</TABLE>
The following is a reconciliation of the amount calculated by applying the
combined statutory tax rates to the reported income before taxes and the
reported income tax expense:
<TABLE>
<CAPTION>
1995 1996 1997
------- ------- -------
<S> <C> <C> <C>
Income before taxes as reported in the
accompanying financial statements.............. 376,559 886,940 968,813
======= ======= =======
Tax charge at the combined statutory rate....... 181,426 271,049 319,708
Permanent additions:
Non-deductible expenses....................... 1,901 5,463 6,189
Employee's profit share....................... 4,083 5,215 8,753
Permanent exclusions:
Payments of dividends to shareholders
characterized as distribution of interest.... -- -- (38,657)
Tax exempt income............................. (126) (538) (2,715)
Capitalized interest.......................... (2,305) (3,283) (2,507)
Other items:
Utilizations of tax net operating losses...... -- (6,606) --
Effect of rate changes on deferred tax........ (7,392) (1,951) --
Early payment incentives...................... -- (28,342) (11,205)
Other incentives.............................. (3,039) (6,710) (1,241)
Other, net.................................... (10,029) (2,584) (11,376)
------- ------- -------
Income and social contribution taxes as reported
in the accompanying financial statements....... 164,519 231,713 266,949
======= ======= =======
Effective rate.................................. 43.7% 26.1% 27.6%
======= ======= =======
</TABLE>
F-16
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
In 1997, the Company characterized part of its dividends proposed for
payment at the end of 1997 as interest on shareholders' funds. As a result,
under Brazilian tax law, it was entitled to treat this part of the dividend as
a deduction for income tax purposes.
The composition of deferred tax assets and liabilities, based on temporary
differences, is as follows:
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
DEFERRED TAX ASSETS:
Provisions for contingencies............................... 33,734 40,864
Provision for pensions..................................... 42,413 41,286
Others..................................................... 4,937 32,339
------- -------
Total (see Note 12)........................................ 81,084 114,489
======= =======
DEFERRED TAX LIABILITIES:
Additional indexation expense from pre-1990................ 29,837 23,693
Others..................................................... 146,275 255,613
------- -------
Total...................................................... 176,112 279,306
======= =======
</TABLE>
All of the other deferred tax liabilities relate to the difference between
the tax basis of permanent assets, which was not indexed for inflation
subsequent to December 31, 1995, and the reporting basis, which includes
indexation through December 31, 1997.
The composition of tax liabilities is as follows:
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Social contribution tax payable.............................. 29,068 16,339
Federal income tax payable................................... 51,568 8,967
Deferred tax liabilities..................................... 176,112 279,306
------- -------
Total...................................................... 256,748 304,612
======= =======
Current...................................................... 87,726 48,733
Non-current.................................................. 169,022 255,879
</TABLE>
9. CASH FLOW INFORMATION
<TABLE>
<CAPTION>
1995 1996 1997
------- ------- -------
<S> <C> <C> <C>
Income and social contribution tax paid............. 102,448 236,580 364,597
Interest paid....................................... 19,850 7,515 20,631
Cash paid against provisions for contingencies...... 18,759 4,291 7,846
Non cash transactions:
Fiscal incentive investment credits received...... 19,564 47,611 37,936
Donations received of property, plant and
equipment........................................ 16,103 9,696 20,301
Conversion of capitalizable funds into share
capital and share premium........................ 166,218 232,446 348,098
</TABLE>
10. CASH AND CASH EQUIVALENTS
<TABLE>
<CAPTION>
1996 1997
------ ------
<S> <C> <C>
Cash........................................................... 853 324
Bank accounts.................................................. 28,382 24,717
------ ------
29,235 25,041
====== ======
</TABLE>
F-17
<PAGE>
TELE CENTRO-SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
11. TRADE ACCOUNTS RECEIVABLE, NET
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Accrued amounts............................................ 149,347 170,831
Billed amounts............................................. 183,474 230,872
Allowance for doubtful accounts............................ (4,005) (22,406)
------- -------
328,816 379,297
======= =======
</TABLE>
The changes in the allowance for doubtful accounts were as follows:
<TABLE>
<CAPTION>
1995 1996 1997
----- ------ -------
<S> <C> <C> <C>
Beginning balance.................................... 1,314 3,494 4,005
Provision charged to selling expense................. 2,613 6,860 31,216
Write-offs........................................... (433) (6,349) (12,815)
----- ------ -------
Ending balance....................................... 3,494 4,005 22,406
===== ====== =======
</TABLE>
12. DEFERRED AND RECOVERABLE TAXES
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Tax deducted at source....................................... 293 1,622
Social contribution tax...................................... 1,140 1,701
Recoverable income tax....................................... 7,590 16,526
Deferred tax assets.......................................... 81,084 114,489
Sales and other taxes........................................ 33,304 43,991
------- -------
123,411 178,329
======= =======
Current...................................................... 67,327 114,232
Non current.................................................. 56,084 64,097
</TABLE>
13. OTHER ASSETS
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Other debtors................................................ 4,486 4,317
Maintenance inventories...................................... 53,541 36,033
Prepayments.................................................. 3,516 2,914
Recoverable advances......................................... 15,653 13,630
Fiscal incentive investments................................. 17,008 36,037
Other........................................................ 38,097 62,562
------- -------
132,301 155,493
======= =======
Current...................................................... 81,897 71,495
Non-current.................................................. 50,404 83,998
</TABLE>
F-18
<PAGE>
TELE CENTRO-SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
14. INVESTMENTS
<TABLE>
<CAPTION>
1996 1997
------ ------
<S> <C> <C>
Fiscal incentive investments................................... 12,042 13,556
Other investments.............................................. 11,107 15,134
------ ------
23,149 28,690
====== ======
</TABLE>
15. PROPERTY, PLANT AND EQUIPMENT, NET
A. COMPOSITION:
<TABLE>
<CAPTION>
1996 1997
---------- ----------
<S> <C> <C>
Construction-in-progress............................. 1,167,791 931,259
Automatic switching equipment........................ 3,320,119 3,579,223
Other equipment...................................... 4,506,235 5,102,927
Buildings............................................ 1,216,997 1,379,530
Other assets......................................... 1,581,084 1,711,456
---------- ----------
Total cost........................................... 11,792,226 12,704,395
Accumulated depreciation............................. (5,829,095) (6,259,876)
---------- ----------
Property, plant and equipment, net................... 5,963,131 6,444,519
========== ==========
</TABLE>
Other equipment includes: Aerial, underground and building cables,
teleprinters, private automatic exchanges, generating equipment and furniture.
Other assets include. Underground cables, computer equipment, vehicles, land
and other assets. Within "Other assets" the book value of land is R$71,021 at
December 31, 1996 and R$71,998 at December 31, 1997.
B. DEPRECIATION RATES
The annual depreciation rates applied to property, plant and equipment are
as follows:
<TABLE>
<CAPTION>
%
----------
<S> <C>
Automatic switching equipment..................................... 7.69
Transmission and other equipment.................................. 10.00
Buildings......................................................... 4.00
Other assets (excluding land)..................................... 5.00-20.00
</TABLE>
C. RENTALS
The Companies rent equipment and premises through a number of operating
agreements that expire at different dates. Total annual rent expense under
these agreements was as follows:
<TABLE>
<CAPTION>
1995 1996 1997
------ ------ ------
<S> <C> <C> <C>
Rent expenditure in the year.......................... 12,388 29,887 30,146
</TABLE>
F-19
<PAGE>
TELE CENTRO-SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
Rental commitments relate primarily to facilities where the future minimum
rental payments under leases with remaining noncancelable terms in excess of
one year are:
<TABLE>
<S> <C>
Year ending December 31,
1998................................................................ 12,026
1999................................................................ 8,369
2000................................................................ 1,675
2001................................................................ 1,180
2002 ............................................................... 804
------
Total minimum rental payments..................................... 24,054
======
</TABLE>
16. PAYROLL AND RELATED ACCRUALS
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Wages and salaries........................................... 28,336 27,180
Accrued social security charges.............................. 46,912 45,940
Accrued benefits............................................. 28,731 25,427
Payroll withholdings......................................... 2,994 3,570
------- -------
106,973 102,117
======= =======
</TABLE>
17. TAXES OTHER THAN INCOME TAXES
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Value-added taxes............................................ 90,336 123,970
Other indirect taxes on operating revenues................... 15,646 14,479
------- -------
105,982 138,449
======= =======
</TABLE>
18. DIVIDENDS
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Payable to Telebras.......................................... 137,317 139,748
Other........................................................ 33,120 65,127
------- -------
170,437 204,875
======= =======
</TABLE>
19. LOANS AND FINANCING
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Loans payable to Telebras.................................... 112,115 248,496
Other financing.............................................. 134,430 45,912
------- -------
246,545 294,408
======= =======
Current...................................................... 104,191 110,414
Noncurrent................................................... 142,354 183,994
</TABLE>
F-20
<PAGE>
TELE CENTRO-SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
A. LOANS PAYABLE TO TELEBRAS
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Eurobonds, originally issued by Telebras..................... 20,832 --
Loans and financing from Telebras............................ 91,283 248,496
------- -------
112,115 248,496
======= =======
</TABLE>
A.1. EUROBONDS ORIGINALLY ISSUED BY TELEBRAS
These are represented by three issues, all denominated in U.S. dollars, as
follows:
<TABLE>
<CAPTION>
PRINCIPAL ANNUAL INTEREST
REPAYMENT ORIGINAL INTEREST PAYMENT
ISSUE TERM SCHEDULE VALUE RATE SCHEDULE 1996
- ----- ---- --------- -------- -------- -------- ----
(US$
THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
4 1997 upon maturity 10,853 10% semi annual 13,777
5 1997 upon maturity 2,500 10.375% semi annual 2,799
6 1997 upon maturity 3,938 10% semi annual 4,006
Principal........................................................... 20,582
Accrued interest.................................................... 250
------
Total............................................................... 20,832
======
</TABLE>
In addition to the contractual interest, in connection with the Eurobonds,
the Companies paid Telebras a 0.5% per year administrative fee on the
outstanding balances.
A.2. LOANS AND FINANCING FROM TELEBRAS
<TABLE>
<CAPTION>
1996 1997
------ -------
<S> <C> <C>
Loans with Telebras........................................... 82,534 245,826
Accrued interest.............................................. 8,749 2,670
------ -------
91,283 248,496
====== =======
</TABLE>
The Company had outstanding loans denominated in Brazilian Reais in the
amount of R$199,527 payable to Telebras. Such loans bear interest at rates
based on TEX ("Taxa Extra de Mercado") plus 1% per annum. In addition, the
Company had outstanding loans denominated in U.S. dollars payable to Telebras
in the amount of R$48,969. Such loans bear interest at rates of 2.3% per
annum.
B. OTHER FINANCING
<TABLE>
<CAPTION>
1996 1997
------- ------
<S> <C> <C>
Equipment financing........................................... 130,240 32,884
Accrued interest.............................................. 4,190 13,028
------- ------
134,430 45,912
======= ======
</TABLE>
F-21
<PAGE>
TELE CENTRO-SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
The loans with the suppliers of telecommunications equipment, are repayable
in full in 2001. The loans are denominated in US dollars and bear interest at
fixed and variable rates. The fixed rates range from 1% to 16.3% per annum and
the variable rates range from 0.44% to 5.5% per annum plus LIBOR, which at
December 31, 1997 was 5.85%. The loans are guaranteed by Telebras.
C. REPAYMENT SCHEDULE
Noncurrent debt is scheduled to be repaid as follows:
<TABLE>
<S> <C>
1999................................................................. 40,384
2000................................................................. 72,287
2001................................................................. 30,514
2002................................................................. 3,254
2003 and thereafter.................................................. 37,555
-------
183,994
=======
</TABLE>
D. CURRENCY ANALYSIS
Total debt is denominated in the following currencies:
<TABLE>
<CAPTION>
EXCHANGE RATE
AT DECEMBER 31, 1997
(UNITS OF ONE
BRAZILIAN REAL) 1996 1997
-------------------- ------- -------
<S> <C> <C> <C>
Brazilian Reais......................... 1.0000 77,851 201,773
US dollars.............................. 1.1164 168,694 92,635
------- -------
246,545 294,408
======= =======
</TABLE>
The Companies do not hedge their foreign currency liabilities.
E. CREDIT AGREEMENT DEFAULTS
The Companies are party to certain credit agreements that contain covenants
restricting, among other things, (i) the ability of Telebras to dispose of all
or a substantial part of its assets or to cease to control a company that was
an operating subsidiary of the Telebras System and (ii) the ability of the
Federal Government to dispose of
its controlling interest in the Telebras System. The Breakup of Telebras on
May 22, 1998 and the privatization of the Companies constituted, an event of
default under such credit agreements. In addition, most of the Companies'
other credit agreements include cross-default provisions and cross-
acceleration provisions that would permit the holders of such indebtedness to
declare the indebtedness to be in default and to accelerate the maturity
thereof if a significant portion of the principal amount of the Companies'
debt is in default or accelerated. A portion of the Companies' outstanding
debt as of December 31, 1997 is in default as a result of the privatization.
The Companies are currently in negotiations with the appropriate creditors
with respect to this indebtedness.
The consolidated financial statements do not include any adjustments
relating to the recoverability of assets and classification of liabilities
that might be necessary should the Companies be unable to renegotiate their
credit
F-22
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
agreements. The Companies believe that once the privatization is finalized,
the Companies' creditors will renegotiate the terms of these credit agreements
and/or provide appropriate waivers regarding such defaults.
20. PROVISIONS FOR CONTINGENCIES
The Companies are party to certain legal proceedings arising in the normal
course of business, including civil, administrative, tax, social security and
labor proceedings. The Companies have provided for the amounts to cover the
estimated losses due to adverse legal judgments. In the opinion of management,
such actions, if decided adversely to the Companies, would not have a material
adverse effect on the Companies' financial condition.
The components of the charge included in the combined statements of income
for contingent liabilities are as follows:
<TABLE>
<CAPTION>
1995 1996 1997
------ ------ ------
<S> <C> <C> <C>
Additional provisions................................... 17,935 38,231 29,985
Payments in excess of provisions........................ 18,759 4,806 7,846
------ ------ ------
36,694 43,037 37,831
====== ====== ======
</TABLE>
Provisions for contingent liabilities were as follows:
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Labor claims................................................. 86,918 102,859
Disputed taxes............................................... 12,242 13,809
Civil claims................................................. 6,138 10,769
------- -------
105,298 127,437
======= =======
Current...................................................... 82,012 102,190
Non-current.................................................. 23,286 25,247
</TABLE>
Labor claims
The provisions for labor claims comprise management's estimate of the most
probable loss in relation to various suits filed by current and former
employees.
Disputed taxes
The determination of the manner in which the various federal, state and
municipal Brazilian taxes apply to the operations of the Company is subject to
varying interpretations arising from the unique nature of the Company's
operations. Management believes that its interpretation of the Company's tax
obligations is substantially in compliance with legislation. Accordingly, any
changes in the tax treatment afforded to the Company's operations will be the
result of new legislation or interpretive rulings of the tax authorities that
will, in the opinion of management, not have any retroactive impact.
Civil claims
The civil claims relate mainly to disputes with suppliers of
telecommunications equipment over price escalation clauses in their contracts.
F-23
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
Other
Telebras, the legal predecessor of the Company, is a defendant in a number
of legal proceedings and subject to other claims and contingencies. Under the
terms of the breakup, liability for any claims arising out of acts committed
by Telebras prior to the effective date of the breakup remains with Telebras,
except for labor and tax claims (for which Telebras and the New Holding
Companies are jointly and severally liable) and any liability for which
specific accounting provisions have been assigned to the Holding Company or
one of the other New Holding Companies. Creditors of Telebras may challenge
this allocation of liability. Management of the Company believes that the
chances of any such claims materializing and having a material adverse
financial effect on the Company are remote and, accordingly, no provision has
been recorded.
Litigation
Management believes it has meritorious defenses to all lawsuits and legal
proceedings in which the Companies are defendants. Based on its evaluation of
such matters, and after consideration of reserves established, management
believes that the resolution of such matters will not have a material adverse
effect on the Companies' financial position or results of operations.
Taxes--ICMS on activation fees and other services
On June 19, 1998 the secretaries of the treasury of the individual Brazilian
states approved an agreement to interpret existing Brazilian tax law to
broaden the application of the ICMS (Imposto sobre Circulacao de Mercadorias e
Servicos), a state value-added tax, to cover not only telecommunication
services but also other services, including cellular activation, which had not
been previously subject to such tax. Pursuant to this new interpretation of
tax law, the ICMS tax may be applied retroactively for such services rendered
during the last five years.
The Company believes that the attempt by the state treasury secretaries to
extend the scope of ICMS tax to services which are supplementary to basic
telecommunications services is unlawful because: (i) the state secretaries
acted beyond the scope of their authority; (ii) their interpretation would
subject certain services to taxation which are not considered
telecommunications services; and (iii) new taxes may not be applied
retroactively. Accordingly, no provision for such taxes has been made in the
accompanying consolidated financial statements.
There can be no assurance that the Company will prevail in its position that
the new interpretation by the state treasury secretaries is unlawful. If the
ICMS tax was applied retroactively for five years to the discontinued cellular
operations at rates ranging from 17% to 25%, it would have a material negative
impact on the financial condition and results of operations of the Company.
21. PROVISION FOR PENSIONS
The Companies participate in a multi-employer defined benefit pension and
other post-retirement benefit plans administered by the Fundacao Telebras de
Seguridade Social ("Sistel").
Approximately 93% of the Companies' employees are covered by these plans.
The Companies contributed and charged to expense R$36,910, R$36,857 and
R$40,519 in 1995, 1996 and 1997, respectively, in respect of pension fund
contributions. Information from the plan's administrators is not available to
permit the Companies to determine their share of unfunded vested benefits, if
any. Management has no intention of withdrawing from these plans, nor is there
any intention to terminate the plans. As a member of a multi-employer plan,
the
F-24
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
Companies' contributions are not segregated in separate accounts or restricted
to provide benefits only to employees of the Companies. The Companies are also
contingently liable for the total obligations of the plans. The funded status
of the Sistel Plan is presented below.
The pension benefit is generally defined as the difference between (i) 90%
of the retiree's average salary during the last 36 months indexed to the date
of retirement and (ii) the value of the retirement pension paid by the
Brazilian social security system. For retired employees the initial pension
payment is subsequently adjusted upwards to recognize cost of living increases
and productivity awards granted to active employees. In addition to the
pension supplements, post-retirement health care and life insurance benefits
are provided to eligible pensioners and their dependents.
Contributions to the plans are based on actuarial studies prepared by
independent actuaries under Brazilian regulations. The actuarial studies are
revised periodically to identify whether adjustments to the contributions are
necessary. A summary relating to the overall Sistel plan, in compliance with
accounting principles generally accepted in Brazil, is as follows:
<TABLE>
<CAPTION>
1996 1997
--------- ---------
<S> <C> <C>
Accumulated pension and other post-retirement benefit
obligations.......................................... 3,235,223 3,775,898
Other obligations..................................... 244,724 255,751
--------- ---------
Total obligations................................. 3,479,947 4,031,649
========= =========
Combined plan assets:
Interest bearing deposits........................... 1,849,298 1,714,153
Stocks and shares................................... 1,548,629 2,360,786
Investment properties............................... 376,805 363,305
Loans to beneficiaries.............................. 115,921 123,428
Other investments................................... 56,229 52,195
--------- ---------
Total plan assets................................. 3,946,882 4,613,867
========= =========
Excess of total plan assets over total obligations.... 466,935 582,218
========= =========
</TABLE>
In addition to the formal Sistel plan, a subsidiary, Telepar, has entered
into an agreement with 3,215 employees who joined the company before December
31, 1982 that grants them a supplementary pension. This right is granted only
if the employees retire on the grounds of time served (30 years for men and 25
years for women). The accumulated pension obligation related to the benefits
payable, assuming all 3,215 employees elect for the collective agreement, has
been accrued for as follows:
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Provision for pension....................................... 123,044 127,887
</TABLE>
In June 1998, in connection with the breakup of Telebras, the Company
determined that the supplementary pension plan would be terminated. As a
result of the termination of the supplementary pension plan, the Company
allowed the members of the plan to elect to receive a cash payout of their
accumulated benefits or to transfer their accumulated benefit obligations to
the Sistel plan. The majority of the employees in the plan elected the cash
payout or for a transfer into the SISTEL plan, which resulted in a payment in
1998 of approximately R$55.0 million. The remaining accrual is to be used to
cover those employees that elected to transfer their benefits to the Sistel
plan, as well as to those for which no election had yet been made.
F-25
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
22. SHAREHOLDERS' EQUITY
The accompanying consolidated financial statements reflect the combined
shareholders' equity of the Companies, after segregating as minority interests
the participation of minority shareholders in each of the Companies at the
historical percentages applicable to shareholders other than Telebras. The
combined shareholders equity has been segregated between capital, reserves and
retained earnings.
23. EXPANSION PLAN CONTRIBUTIONS
Expansion plan contributions are the means by which the Companies have
financed the growth of their telecommunications network. The contributions
were made by companies or individuals to be connected to the national
telephone network. Such contributions were paid directly to the Companies and
interest received, when payments were made in installments, was transferred to
Telebras. The capital value received from the prospective telephone
subscribers was treated as follows:
. 80% was capitalized by the Companies in the name of Telebras, with the
value per share issued to Telebras being equal to the equity value per
share of each of the Companies at the end of the year preceding the
capitalization.
. 20% was remitted by the Companies to Telebras in the month following
receipt.
. Until December 31, 1995 the total capital value received was indexed
from the month of receipt to the date of the next audited balance sheet
and then capitalized in the name of the prospective subscriber by
Telebras or by the Companies, at a value per share equal to the equity
value per share shown in the audited balance sheet. From January 1, 1996
indexation was no longer applied and, for contracts signed as from that
date, the Telebras or the Companies were allowed the option of using a
market value per share, when that was higher than the equity value.
Also, as from June 1995, the capitalization of expansion plan
contributions was effected by the Companies issuing their own shares to
expansion plan subscribers.
Expansion plan contributions of R$285,837, R$216,795, and R$182,258 in 1995,
1996 and 1997, respectively, were received. Expansion plan contributions
approved by the general meeting of shareholders for capitalization and
transfer to shareholders' equity amounted to R$166,218, R$232,446 and
R$348,098 in 1995, 1996 and 1997, respectively. The Companies' expansion plan
contribution program has been terminated, with no new contracts being signed
after June 30, 1997.
In addition to the expansion plans which it promoted directly, the Companies
also sponsored agreements between companies or individuals in a particular
community and independent contractors who undertook to develop the
telecommunications infrastructure required to connect them to the national
telephone network (Community Expansion Plan). The companies or individuals
paid the contractor. On completion of the project the Companies incorporated
the completed equipment into their fixed assets at the appraised value and
credited expansion plan contributions which are then treated in the same
manner as the capital values received from prospective telephone subscribers,
as described above.
24. TRANSACTIONS WITH RELATED PARTIES
The principal related party transactions take place with Embratel in respect
of long-distance telecommunications. The Companies have operating agreements
with Embratel, which define the charge per
F-26
<PAGE>
TELE CENTRO-SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
minute for inter-or intrastate long-distance or international telephone calls
with origin or destination in the area specified by the telecommunications
concession granted to the Companies by the Federal Government. All charges to
customers, including long-distance, are billed by the Companies who transfer
the long-distance portion of the charges to Embratel. As a result, the
Companies normally have a payable to Embratel.
Embratel and the cellular companies of Telebras must pay a network usage fee
if they access end customers via the network of the Companies. In practical
terms, even though the network usage fee includes the costs of a variety of
network elements and services, the network usage fee primarily reflects the
use of certain facilities of the Companies for which Embratel and the cellular
companies do not have adequate substitutes, particularly the local loop
between local exchanges and customers.
In the past, the Companies shared revenues for interregional and
international long-distance calls with Embratel rather than charging Embratel
a network usage fee for the use of the Companies' network. Under this system,
the Companies retained a fixed percentage of the revenues associated with such
calls and paid the balance of the revenues associated with such calls to
Embratel. This system was replaced on April 28, 1998 with the interconnection
charge that had already been in place for interconnection of the Companies'
network with cellular networks, under which the Companies charge for
connection to their network and usage of their network.
Additionally, as a result of telephone calls to and from the service areas
of other telephone operators, the Companies have receivable and payable
positions with other telecommunications service providers in Brazil within the
Telebras group of companies relating to charges for the use of the networks
belonging to those telecommunications service providers.
A summary of the balances and transactions with these related parties is as
follows:
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Current assets:
Trade accounts receivable.................................. 9,033 6,941
Other assets............................................... 1,854 1,998
Current liabilities:
Loans and financing........................................ 64,649 95,748
Accounts payable to related parties........................ 31,062 30,522
Other liabilities.......................................... 8,748 4,189
Dividends.................................................. 137,317 139,748
Non current liabilities:
Loans and financing........................................ 47,466 152,748
</TABLE>
<TABLE>
<CAPTION>
1995 1996 1997
------- -------- --------
<S> <C> <C> <C>
Net operating revenues........................ 91,549 168,068 235,096
Cost of services.............................. (67,413) (109,310) (189,562)
Operating expenses............................ 26,115 63,230 96,648
Interest expense.............................. (13,699) (13,667) (22,733)
Interest income............................... 3,346 8,663 3,551
</TABLE>
Until the breakup of Telebras, the Companies and other companies of the
Telebras system were required to contribute to the research and development
center operated by Telebras and also conducted their own independent research
and development. Following the breakup of Telebras, a private independently
administered
F-27
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
research and development center was established. Pursuant to a three year
contract signed in May 1998, the telecommunications regulations require the
Companies to contribute R$63,317 to the research center during the three year
period ending May 2001.
Additionally, Telebras charges a 1% per annum administration fee on the
allocation to the Holding Company of debt originally contracted by Telebras.
Telebras has also charged interest on inter company loans at a rate which is
currently the interest rate on federal treasury bills plus 0.25%. These
interest charges are included in the above table as net interest expense.
Other related parties are Federal, State and Municipal Governments. Revenues
from telephone calls made by government bodies and related organizations have
not been included above because details of the type of telephone user were not
maintained.
The balances of amounts invested in government securities or through
government controlled entities are:
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Cash and cash equivalents:
Deposits with Banco do Brasil S.A.......................... 234,956 138,239
</TABLE>
The Companies believe that all the costs of doing business are reflected in
the combined financial statements and that no additional expenditures will be
incurred as a result of the cessation of the activities previously performed
by Telebras.
25. COMMITMENTS
At December 31, 1997 the Companies had the approximately following capital
expenditure commitments:
<TABLE>
<CAPTION>
EXPECTED YEAR OF EXPENDITURE
----------------------------
<S> <C>
1998............................................................... 772,659
1999............................................................... 331,451
</TABLE>
These commitments are to be spent on continuing expansion and modernization
of the system, transmission equipment and data transmission equipment.
26. INSURANCE
At December 31, 1997, in the opinion of management, all significant and high
risk assets and obligations were insured.
27. FAIR VALUES OF FINANCIAL ASSETS AND LIABILITIES
Estimated fair values of the Companies' financial assets and liabilities
have been determined using available market information and appropriate
valuation methodologies. However, considerable judgment was required in
interpreting market data to produce the estimated fair values. Accordingly,
the estimates presented below are not necessarily indicative of the amounts
that could be realized in a current market exchange. The use of different
market assumptions and/or estimation methodologies may have a material effect
on the estimated fair values.
The fair value information as of December 31, 1996 and 1997 presented below
is based on pertinent information available to management as of those dates.
Although management is not aware of any factors that would significantly
affect the estimated fair value amounts at December 31, 1996, such amounts
have been fully indexed to December 31, 1997 and current estimates of fair
values may differ significantly from the amounts shown.
F-28
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
Where no comparison of book versus fair value is presented for a financial
asset or liability line item in the schedule below, no significant difference
in values is believed to exist.
<TABLE>
<CAPTION>
1996 1996 1997 1997
BOOK FAIR BOOK FAIR
VALUE VALUE VALUE VALUE
------- ------- ------- -------
<S> <C> <C> <C> <C>
Assets:
Other assets:
Deferred and recoverable income tax....... 123,411 116,617 178,329 163,854
Liabilities:
Income taxes............................... 256,748 148,085 304,612 234,127
Loans and financing:
Loans payable to Telebras................. 112,115 119,430 248,496 251,296
Other financing........................... 134,430 134,430 45,912 45,912
</TABLE>
Cash, cash equivalents, customer accounts receivable and other assets,
accounts payable and accrued liabilities.
The carrying value of cash and cash equivalents, trade accounts receivable
and other assets, accounts payable and accrued liabilities are a reasonable
estimate of their fair values. Cash equivalents are represented principally by
overnight-deposits for which the fair values were also considered to be the
same as the carrying value, as also trade accounts receivable, other assets,
accounts payable and accrued liabilities.
Loans and financing
Interest rates that are currently available to the Companies for issuance of
debt with similar terms and maturities were used to estimate fair value.
28. EVENTS SUBSEQUENT TO DECEMBER 31, 1997
A. INCORPORATION OF THE CELLULAR COMPANIES
At December 31, 1997, Telebras, through its operating subsidiaries, was the
principal supplier of public telecommunications services in Brazil, which
included being the leading provider of fixed-line telephone services. On
January 30, 1998 as part of a separation of the telephone business between
fixed and cellular operations by all of Telebras' subsidiaries, the Companies
spun off the assets and liabilities at December 31, 1997 of their cellular
telecommunications operations into separate companies. These new companies,
the Cellular Companies, were incorporated on January 5, 1998.
B. INCORPORATION OF TELE CENTRO SUL PARTICIPACOES S.A.
On May 22, 1998 the shareholders of Telebras approved Telebras' division
into twelve new holding companies using a procedure under Brazilian corporate
law called a cisao ("spin-off"), whereby existing shareholders received shares
in the new companies in proportion to their holdings in Telebras. The new
companies contain the assets and liabilities previously recorded in the
accounts of Telebras, except for the following which will remain on the books
of Telebras and not be allocated to the new holding companies:
. approximately R$98,000 of net assets which have been attributed to a
newly constituted research foundation that will take over the activities
previously performed by the Telebras Campinas Research and Development
Center, and,
F-29
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
. approximately R$370,000 of net assets that will provide the funds
required to liquidate Telebras, including approximately R$132,000 of
retroactive dividends to be paid to the holders of new shares issued in
April 1998, as a result of the resolution of the disputed capital
increase of 1990, approximately R$50,000 of indemnity payments to
employees and approximately R$87,000 of expenses arising out of the
privatization process.
In addition to approving the allocation of assets and liabilities to the new
holding companies at the May 22, 1998 meeting, the shareholders also approved
a specific structure for the shareholders' equity of each new holding company,
which included an allocation of a portion of the retained earnings of
Telebras. Consequently, the amounts of the balances of capital, reserves and
retained earnings, together with the corresponding assets and liabilities for
the formation of Tele Centro Sul Participacoes S.A. were established. After
Telebras retained within its own shareholders' equity sufficient retained
earnings from which to pay dividends on its 1997 earnings and in settlement of
dividends as a result of settlement of the 1990 disputed share increase,
Telebras allocated to each New Holding Company the balance of its retained
earnings in proportion to the allocated total net assets. This value of
allocated retained earnings does not represent the historical retained
earnings of the holding companies and resulted in an increase of R$204,689 in
relation to the Company's historical retained earnings. These values are shown
in the "Spin-off from Telebras" column in the following table. The first
column summarizes the December 31, 1997 consolidated historical balances of
the Companies' consolidated balance sheets, and the "Holding Company
Consolidated Statement" column summarizes the consolidated balance sheet of
Tele Centro Sul Participacoes S.A. after the spin-off.
As a result of the legal structure of the spin-off and as allowed under
Brazilian GAAP, a company formed as a result of a cisao will have such
retained earnings in its balance sheet as the parent company shareholders'
resolution adopting the cisao allocates from the parent company to the new
company. Accordingly, upon formation, Tele Centro Sul Participacoes S.A.'s
legal capital structure was defined by the resolutions approved by the
Telebras shareholders' meeting of May 22, 1998 so that its shareholders'
equity of R$5,122,435 includes retained earnings of R$1,394,352. The allocated
retained earnings and future retained earnings will be the basis from which
future dividends will be payable.
F-30
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 31)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
The "Adjustments and Eliminations" column includes (i) the elimination of
the Holding Company's investment in the Companies (ii) the elimination of
inter-company loans, payables and receivables (iii) the elimination of the net
assets of the discontinued cellular operations and (iv) the elimination of the
minority shareholdings in the discontinued cellular operations.
<TABLE>
<CAPTION>
DECEMBER
31, 1997 ADJUSTMENTS HOLDING COMPANY
HISTORICAL SPIN-OFF AND CONSOLIDATED
BALANCES FROM TELEBRAS ELIMINATIONS STATEMENT
---------- ------------- ------------ ---------------
<S> <C> <C> <C> <C>
Assets
Cash and cash equiva-
lents.................. 163,280 71,012 -- 234,292
Intercompany receiv-
ables.................. 8,939 337,046 (234,776) 111,209
Other current assets.... 565,024 1,197 -- 566,221
--------- --------- ---------- ---------
Total current assets.. 737,243 409,255 (234,776) 911,722
Intercompany receiv-
ables.................. -- 188,575 (152,748) 35,827
Other noncurrent as-
sets................... 148,095 4,590 -- 152,685
--------- --------- ---------- ---------
Total noncurrent as-
sets................. 148,095 193,165 (152,748) 188,512
Investment in subsidiar-
ies.................... 28,690 4,495,387 (4,495,387) 28,690
Advances for future cap-
ital increase.......... -- 152,496 (152,496) --
Property, plant and
equipment, net......... 6,444,519 42,634 -- 6,487,153
--------- --------- ---------- ---------
Total permanent as-
sets................. 6,473,209 4,690,517 (4,647,883) 6,515,843
Net assets of discontin-
ued operations......... 1,122,409 -- (1,122,409) --
--------- --------- ---------- ---------
Total assets............ 8,480,956 5,292,937 (6,157,816) 7,616,077
========= ========= ========== =========
Liabilities
Loans and financing..... 110,414 -- (95,748) 14,666
Other................... 805,969 -- (139,028) 666,941
--------- --------- ---------- ---------
Total current liabili-
ties................. 916,383 -- (234,776) 681,607
Loans and financing..... 183,994 -- (152,748) 31,246
Other................... 409,904 -- -- 409,904
--------- --------- ---------- ---------
Total noncurrent lia-
bilities............. 593,898 -- (152,748) 441,150
Minority interests...... 1,375,041 -- (206,970) 1,168,071
--------- --------- ---------- ---------
Share capital........... 4,221,163 1,936,659 (4,221,163) 1,936,659
Income reserves......... -- 1,791,424 -- 1,791,424
Retained earnings....... 1,189,663 1,394,352 (1,189,663) 1,394,352
--------- --------- ---------- ---------
Total shareholders'
equity............... 5,410,826 5,122,435 (5,410,826) 5,122,435
Funds for capitaliza-
tion................... 184,808 170,502 (152,496) 202,814
--------- --------- ---------- ---------
Total liabilities and
shareholders' equity... 8,480,956 5,292,937 (6,157,816) 7,616,077
========= ========= ========== =========
</TABLE>
The separation of the fixed and cellular telecommunications business and the
formation of the Holding Company have been accounted for as reorganizations of
entities under common control in a manner similar to a pooling of interests.
Brazilian corporate and tax law allows state controlled companies which are
participating in the government's privatization program a three month delay
between the accounting base date for a spin-off and the date on which the
shareholders' meeting approves the spin-off, including the related accounting
basis for the
F-31
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
net assets spun-off. Furthermore, as allowed by Brazilian corporate law, the
amount shown in the "Spin-off from Telebras" column as "Investment in
Subsidiaries" was determined based on the balance sheets of those subsidiaries
as of December 31, 1997. As a result, the consolidated financial statements of
the Holding Company for 1998 will include the results of operations and
changes in financial conditions of the subsidiaries from January 1, 1998 and
the effects of the cash and other assets (principally intercompany
receivables) allocated from Telebras as of March 1, 1998.
Capital
The capital stock of the Holding Company is comprised of preferred shares
and common shares, all without par value. At May 22, 1998, there were
210,029,997 thousand outstanding preferred shares (inclusive of 13,718,350
thousand preferred shares resulting from the settlement in April 1998 with
Telebras as discussed below) and 124,351,903 thousand outstanding common
shares (net of 17,128 thousand common shares in treasury). The capital may be
increased only by a decision taken at a shareholders' meeting or by the Board
of Directors in connection with the capitalization of profits or reserves
previously allocated to capital increases at a shareholders' meeting.
The preferred shares are non-voting except under limited circumstances and
are entitled to a preferential, noncumulative dividend and to priority over
the common shares in the case of liquidation of the Holding Company.
Under the Brazilian Corporation Law, the number of non-voting shares, such
as the Preferred Shares, may not exceed two-thirds of the total number of
shares.
On June 7, 1990, the Board of Directors of Telebras authorized an increase
in Telebras share capital by public offer. During the offer period the CVM
initiated an investigation as to whether Brazilian securities law and
regulations regarding the correct pricing of the new shares issued had been
violated, because the shares were issued at a discount to equity value per
share. After its investigation the CVM notified the Federal Prosecutor's
Office that it believed no violation occurred since the price was established
in line with market prices for Telebras' shares traded on the Brazilian stock
exchanges. Nevertheless, the Federal Prosecutor decided to pursue the issue
through judicial channels. In April 1998, resolution was reached on the
disputed Telebras capital increase of 1990. In connection with the resolution
Telebras issued 13,718,350 thousand shares of preferred stock.
Dividends
Pursuant to its By-laws, the Holding Company is required to distribute as
dividends in respect of each fiscal year ending on December 31, to the extent
amounts are available for distribution, an aggregate amount equal to at least
25% of Adjusted Net Income (as defined) on such date (the "Mandatory
Dividend"). The annual dividend distributed to holders of Preferred Shares
(the "Preferred Dividend") has priority in the allocation of Adjusted Net
Income. Remaining amounts to be distributed are allocated first to the payment
of a dividend to holders of common shares in an amount equal to the Preferred
Dividend and the remainder is distributed equally among holders of preferred
shares and common shares.
For purposes of Brazilian Corporation Law, and in accordance with Tele
Centro Sul Participacoes S.A.'s By-laws, the "Adjusted Net Income" is an
amount equal to Tele Centro Sul Participacoes S.A.'s net profits adjusted to
reflect allocations to or from (i) the statutory reserve, (ii) a contingency
reserve for anticipated losses, if any, and (iii) an unrealized revenue
reserve, if any.
In addition, subsequent to December 31, 1997 an investigation relating to an
increase in the share capital of Telebras by a 1990 public offering has
concluded in favor of Telebras. Accordingly, Telebras has issued the 13,718
million preferred shares previously under investigation.
F-32
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
C. NEW REGULATORY ENVIRONMENT
On April 28, 1998, the revenue sharing regime used to divide interregional
and international long-distance revenues between Embratel and the Companies
was replaced with a network usage fee for interconnection, based on the terms
of an interconnection agreement with Embratel which became effective in April
1998.
The terms of this interconnection agreement, particularly pricing and
technical requirements, will significantly affect the Companies' results of
operations, competitive environment and capital expenditure policies. Under
the current regulatory framework, all telecommunications service providers
must provide interconnection services on a non-discriminatory basis. Subject
to certain requirements, providers are free to negotiate the terms of
interconnection but, in the event the parties fail to reach an agreement,
Anatel will establish the terms of interconnection.
The Companies do not expect the terms of the interconnection agreement to
have a material impact on net income initially as reduced net operating
revenues under the new structure are expected to be offset by a supplemental
per-minute rebate from Embratel called Parcela Adicional de Transicao ("PAT")
that supplements the network usage charge. Under the General Plan on
Concessions and Licenses, the fixed-line companies and Embratel, an affiliate
providing long distance services, are prohibited from offering certain basic
fixed-line telecommunications services until they fulfill certain specified
obligations. Embratel is prohibited from offering local or cellular services
and the regional fixed-line companies are prohibited from offering cellular,
interregional long-distance and international long-distance services. After
the privatization is effected, Embratel will be allowed to enter the market
for intraregional long-distance service as a competitor to the regional fixed-
line companies once the privatization of Telebras is completed.
D. CHANGE IN CONTROL (UNAUDITED)
On July 29, 1998, the Federal Government sold to twelve buyers (the "New
Controlling Shareholders") its rights to receive shares of the twelve New
Holding Companies upon the distribution of such shares. In connection with
this sale, the Federal Government assigned to the New Controlling Shareholders
substantially all its economic and voting rights with respect to the New
Holding Companies and, as a consequence, effective August 4, 1998, the New
Controlling Shareholders control the New Holding Companies.
29. SUMMARY OF THE DIFFERENCES BETWEEN BRAZILIAN AND US GAAP
The Companies' accounting policies comply with generally accepted accounting
principles in Brazil ("Brazilian GAAP"). Accounting policies which differ
significantly from generally accepted accounting principles in the United
States of America ("US GAAP") are described below:
A. DIFFERENT CRITERIA FOR CAPITALIZING AND DEPRECIATING CAPITALIZED INTEREST
Until December 31, 1993 capitalized interest was not added to the individual
assets in property, plant and equipment, instead it was capitalized separately
and amortized over a time period different from the useful lives of the
related assets. Under US GAAP, capitalized interest is added to the individual
assets and is amortized over their useful lives. Also, under Brazilian GAAP as
applied to companies in the telecommunications industry, interest attributable
to construction-in-progress is computed at the rate of 12% per annum of the
balance of construction-in-progress and that part which relates to interest on
third party loans is credited to interest expense based on actual interest
costs with the balance relating to own capital being credited to capital
reserves.
F-33
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
Under US GAAP, in accordance with the provisions of SFAS 34, interest
incurred on borrowings is capitalized to the extent that borrowings do not
exceed construction-in-progress. The credit is a reduction of interest
expense. Under US GAAP, the amount of interest capitalized excludes the
monetary gain associated with the borrowings and the foreign exchange gains
and losses on foreign currency borrowings. The US GAAP differences between the
accumulated capitalized interest on disposals and in accumulated amortization
on disposals relate to the differences between capitalized interest and
related accumulated amortization under Brazilian and US GAAP which is included
in the net book value of disposed property, plant and equipment.
The effects of these different criteria for capitalizing and depreciating
capitalized interest are presented below:
<TABLE>
<CAPTION>
1996 1997
-------- --------
<S> <C> <C>
CAPITALIZED INTEREST DIFFERENCE
US GAAP Capitalized Interest:
Interest which would have been capitalized and credited
to income under US GAAP (Being interest incurred on
loans from the Company's parent and from third
parties, except in years where total loans exceeded
total construction in progress, when capitalized
interest is reduced proportionately).................. 23,535 23,118
Difference in accumulated capitalized interest on
disposals............................................. 10,344 17,118
-------- --------
33,879 40,236
-------- --------
Less Brazilian GAAP Capitalized Interest:
Interest capitalized and credited to income under
Brazilian GAAP (Up to the limit of interest incurred
on loans obtained for financing capital investments).. (16,436) (24,568)
Interest capitalized and credited to reserves under
Brazilian GAAP (Difference between total capitalized
interest and interest capitalized and credited to
income)............................................... (115,546) (107,584)
-------- --------
Total capitalized interest under Brazilian GAAP (12%
per annum, applied monthly to the balance of
construction-in-progress)........................... (131,982) (132,152)
-------- --------
US GAAP Difference..................................... (98,103) (91,916)
======== ========
AMORTIZATION OF CAPITALIZED INTEREST DIFFERENCE
Amortization under Brazilian GAAP...................... 72,966 84,893
Less: Amortization under US GAAP....................... (25,294) (26,471)
US GAAP difference in accumulated amortization on
disposals........................................... (10,344) (17,118)
-------- --------
US GAAP Difference..................................... 37,328 41,304
======== ========
</TABLE>
B. REVERSAL OF PROPOSED DIVIDENDS
Under Brazilian GAAP proposed dividends are accrued for in the consolidated
financial statements in anticipation of their approval at the shareholders'
meeting. Under US GAAP, dividends are not accrued until they are formally
declared.
C. PENSION AND OTHER POST-RETIREMENT BENEFITS
The Companies participate in a multi-employer plan ("Sistel") and provide
for the costs of pensions and other post retirement benefits based on a fixed
percentage of remuneration, as recommended annually by
F-34
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
independent actuaries. For the purposes of US GAAP, the Companies are
considered to contribute to a multi-employer plan and consequently are
required to disclose their annual contributions and the funded status of the
plan in accordance with US GAAP. Note 30 shows the funded status of Sistel.
The provisions of SFAS 87 for the purposes of calculating the funded status
were applied with effect from January 1, 1992, because it was not feasible to
apply them from the effective date specified in the standard.
D. ITEMS POSTED DIRECTLY TO SHAREHOLDERS' EQUITY ACCOUNTS
Under Brazilian GAAP various items are posted directly to shareholders'
equity accounts that under US GAAP would be posted to the income statement.
Examples include capitalized interest, the effects of adjustments to tax rates
and tax incentive investment credits received. The posting of such items to
shareholders' equity gives rise to adjustments in the consolidated statements
of changes in shareholders' equity. Since the original postings by the
subsidiaries to their equity to equity accounts would, under US GAAP, be made
directly to the income statement, these consolidation adjustments must be
included in the reconciliation of net income in accordance with US GAAP. The
effects of changes in income tax rates posted directly to shareholders' equity
accounts arise from applying increases or decreases in tax rates to the
deferred tax liability relating to the special reserve arising from pre-1990
indexation adjustments to property, plant and equipment.
E. EARNINGS PER SHARE
Under Brazilian GAAP, net income per share is calculated on the number of
shares outstanding at the balance sheet date. Since the capital structure of
the Holding Company was not in place at December 31, 1997, earnings per share
is not presented for Brazilian GAAP.
In these combined financial statements, information is disclosed per lot of
one thousand shares, because this is the minimum number of shares that can be
traded on the Brazilian stock exchanges. Each American Depositary Share
("ADS") is equivalent to one thousand shares.
As discussed in Note 1, the Holding Company was not formed until subsequent
to December 31, 1997. For US GAAP purposes, the equity structure utilized for
the earnings per share computations is that of the new entity formed in May
1998. The Holding Company's equity structure has been used for all years
presented. At the date of formation, the Holding Company had 124,351,903
thousand common shares (net of 17,128 thousand common shares in treasury) and
196,311,647 thousand preferred shares outstanding (exclusive of the 13,718,350
thousand preferred shares resulting from the settlement in April 1998 with
Telebras).
In February 1997, the Financial Accounting Standards Board issued SFAS No.
128 "Earnings Per Share". This new statement became effective for financial
statements for periods ending after December 15, 1997, and provides
computation, presentation and disclosure requirements for earnings per share.
Since the preferred and common stockholders have different dividend, voting
and liquidation rights, Basic and Diluted earnings per share have been
calculated using the "two-class" method. The "two-class" method is an earnings
allocation formula that determines earnings per share for preferred and common
stock according to the dividends to be paid as required by the Company's by-
laws and participation rights in undistributed earnings.
Basic earnings per common share is computed by reducing net income by
distributable and undistributable net income available to preferred
shareholders and dividing net income available to common shareholders by the
F-35
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
weighted-average number of common shares outstanding during the period. Net
income available to preferred shareholders is the sum of the preferred stock
dividends up to a minimum of 6% of adjusted net income (as defined in the
Company's by-laws) (distributable net income) and the preferred shareholders'
portion of undistributed net income. Undistributed net income is computed by
deducting preferred stock dividends and common stock dividends from net
income. Undistributed net income is shared equally by the preferred and common
shareholders on a pro rata basis. Common stock dividends are calculated up to
25% of adjusted net income or an amount equal to the preferred stock dividend,
whichever is less. Diluted earnings per share is computed by reducing net
income for an increase to net earnings allocated to minority shareholders and
dividing such net income available to common and preferred shareholders by the
monthly weighted-average number of common and preferred shares outstanding
during the period. The weighted-average (thousand) shares outstanding for
diluted earnings per share is not greater than such shares used in the basic
earnings per share calculation since the dilutive share issue is that of the
Holding Company's subsidiaries, as indicated below.
The weighted-average number of common and preferred shares used in computing
basic earnings per share for 1997 was 124,351,903 thousand and 196,311,647
thousand (exclusive of the 13,718,350 thousand preferred shares resulting from
the settlement in April 1998 with Telebras), respectively. The Companies have
received certain contributions from customers or customers have independently
paid suppliers of telecommunication equipment and services for the
installation of fixed line services. These amounts are reflected as "funds for
capitalization" in the accompanying combined balance sheets. Once the
installation is essentially complete and the contributions have been received,
the funds will be converted into equity (see Note 23 to the combined financial
statements). These activities are dilutive in nature to the shareholders of
the Holding Company or the Companies, whether the shares to be issued are
those of the Holding Company's subsidiaries (which will impact the minority
interest recognized) or of the company itself. If subsidiary shares had been
issued historically, the reduction to net income to increase net earnings
attributable to minority shareholders for 1996 and 1997 would have been
$58,463 and $39,286, respectively.
The Company's preferred shares are non-voting except under certain limited
circumstances and are entitled to a preferential, noncumulative dividend and
to priority over the common shares in the event of liquidation of the Company.
The preferred shareholders were entitled to a non-cumulative dividend of
R$0.50 and R$0.60 per preferred share in 1996 and 1997, respectively. The
preferred shareholders would share equally in the undistributed earnings of
the Company in the amount of R$1.44 and R$1.50 per preferred share in 1996 and
1997, respectively.
In April 1998, resolution was reached on the disputed capital increase of
1990 (see Note 28). In connection with the resolution, the Company issued
13,718,350 shares of preferred stock. For Brazilian GAAP and US GAAP, such
shares are considered outstanding when issued.
Earnings per share has been presented for net income only since interest
income, certain interest expense and social contribution taxes have not been
allocated between income from continuing operations and income from
discontinued operations.
F. DISCLOSURE REQUIREMENTS
US-GAAP disclosure requirements differ from those required by Brazilian
GAAP. However, in these combined financial statements, the level of disclosure
has been expanded to comply with US GAAP.
F-36
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
G. INCOME TAXES
The Companies fully accrue for deferred income taxes on temporary
differences between tax and reporting records. The existing policies for
providing for deferred taxes are substantially in accordance with SFAS 109.
"Accounting for Income Taxes", except in connection with the deferred income
tax effects of indexation adjustments in 1996 and 1997 (see Note 2(a)(iii)).
Under US GAAP the deferred tax effects of the 1996 and 1997 indexation for
financial reporting purposes would be charged to income and social
contribution taxes in the combined statement of income. Consequently, this is
the only material difference in the implementation of SFAS 109 other than in
relation to the US GAAP adjustments described in this note to the combined
financial statements, and for the fact that deferred income taxes are shown
gross rather than being netted as required by US GAAP. Additionally, for US
GAAP purposes, deferred tax assets and liabilities are classified as current
or non current based on the classification of the asset or liability
attributing to the temporary difference.
H. INTEREST INCOME (EXPENSE)
Brazilian GAAP requires interest to be shown as part of operating income.
Under US GAAP interest income (expense) would be shown after operating income.
I. EMPLOYEES' PROFIT SHARE
Brazilian GAAP requires employees' profit share to be shown as an
appropriation of net income for the year. Under US GAAP employee profit
sharing is included as an expense in arriving at operating income.
J. PERMANENT ASSETS
Brazilian GAAP has a class of assets called permanent assets. This is the
collective name for all assets on which indexation adjustments were calculated
in the corporate and fiscal law accounts of Brazilian companies. Under US GAAP
the assets in this classification would be noncurrent assets.
Gain (losses) on the disposal of permanent assets were R$19,117 and
R$(4,871) and R$(20,751) in 1995, 1996 and 1997, respectively. Such gains
(losses) are classified as non-operating income for Brazilian GAAP. Under US
GAAP, such gains (losses) would increase/reduce operating income.
K. PRICE-LEVEL ADJUSTMENTS AND US GAAP PRESENTATION
The effects of price-level adjustments have not been eliminated in the
reconciliation to US GAAP, nor are the monetary gains or losses associated
with the various US GAAP adjustments separately identified, because the
application of inflation restatement as measured by the UFIR and the IGP-M
represents a comprehensive measure of the effects of price level changes in
the Brazilian economy and, as such, is considered a more meaningful
presentation than historical cost-based financial reporting for both Brazilian
and US accounting purposes.
L. FUNDS FOR CAPITALIZATION
i. Expansion plan contributions
Under Brazilian GAAP, expansion plan contributions received are included in
the consolidated balance sheet below equity until proposed subscribers have
paid for their telephone connection in full and a general meeting of
shareholders approves the capital increases. Until December 31, 1995 expansion
plan contributions were indexed from the month received to the date of the
next audited balance sheet and transferred to equity
F-37
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
when capital stock was issued to the subscriber, at a value per share equal to
the equity value per share shown on the latest audited balance sheet.
From January 1, 1996 indexation was no longer applied and, for contracts
signed as from that date, Telesp was allowed the option of using a value per
share equal to the market value, when this is higher than the equity value.
For US GAAP purposes, a portion of the expansion plan contributions would be
allocated to shareholders' equity based on the market value of the shares to
be issued to subscribers. The remainder of the expansion plan contributions
would be classified as a deferred credit and amortized to reduce depreciation
expense from the time the related construction-in-progress is completed.
ii. Donations and subsidies for investments
Under Brazilian GAAP those amounts, which comprise principally the excess of
the value of property, plant and equipment incorporated into the Company's
assets over the corresponding credits to expansion plan contributions
received, are recorded as a credit to other capital reserves. For US GAAP
purposes, the credit to capital reserves would be classified as a deferred
credit and amortized to reduce depreciation expense.
M. LOANS AND FINANCING
For US GAAP, loans and financing balances in default or expected to be in
default within a year of the balance sheet date would be classified as current
obligations unless creditors had provided the Company waivers for such
defaults. For Brazilian GAAP, loan and financing balances in technical default
are not always classified as current liabilities. A portion (R$45,912) of the
Company's outstanding debt at December 31, 1997 is currently in default or is
expected to be in default as a result of the privatization and accordingly,
for US GAAP, would be classified as current liabilities.
N. VALUATION OF LONG-LIVED ASSETS
For US GAAP, effective January 1, 1996 the Company adopted SFAS 121
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets
to Be Disposed Of." In accordance with this standard, the Company periodically
evaluates the carrying value of long-lived assets to be held and used, when
events and circumstances warrant such a review. The carrying value of long-
lived assets are considered impaired when the anticipated undiscounted cash
flow from such assets is separately identifiable and is less than their
carrying value. In that event, a loss is recognized based on the amount by
which the carrying value exceeds the fair market value of the assets. The
adoption of this standard did not have a material effect on the Company's
results or financial condition.
Brazilian GAAP does not require cash flow computations in order to determine
potential asset impairment.
O. RETAINED EARNINGS
For Brazilian GAAP, a company formed as a result of a cisao may have
retained earnings in its balance sheet if the parent company shareholders'
resolution adopting the cisao allocates retained earnings from the parent
company to the new company. Under US GAAP, "retained earnings" allocated in
the cisao would not be considered historical retained earnings as such amount
would represent capital allocated from the parent company and would be
described as "distributable capital." As a result of the May 22, 1998 spin-
off, the Company will have US GAAP distributable capital of R$1,394,352.
P. REVENUE RECOGNITION
Until December 31, 1997, under both Brazilian and US GAAP, revenues from
activation fees were recognized upon activation of a customer's services.
Under US GAAP, effective January 1, 1998, net revenues from activation fees
will be deferred and amortized over the estimated effective contract life.
F-38
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
NET INCOME RECONCILIATION OF THE DIFFERENCES BETWEEN US AND BRAZILIAN GAAP
<TABLE>
<CAPTION>
1996 1997
----------- -----------
<S> <C> <C>
Income from continuing operations before unallocated
interest income/expense, taxes and minority interest
as reported......................................... 530,542 568,134
Add (deduct):
Different criteria for:
Capitalized interest............................... (98,103) (91,916)
Amortization of capitalized interest............... 37,328 41,304
Contributions to plant expansion:
Amortization of deferred credit.................... 24,535 32,343
Items posted directly to shareholders' equity:
Interest on construction in progress............... 115,546 107,584
----------- -----------
US GAAP income from continuing operations
before unallocated interest income/expense, income
taxes and minority interests...................... 609,848 657,449
----------- -----------
Income as reported from discontinued cellular
operations
before unallocated interest income/expense, income
taxes and minority interests...................... 297,274 341,636
Effect of US GAAP differences on
income from discontinued operations................ 13,802 20,949
----------- -----------
US GAAP income from discontinued operations
before unallocated interest income/expense, income
taxes and minority interests...................... 311,076 362,585
----------- -----------
Items relating to continuing and discontinued
operations:
Unallocated interest income.......................... 60,612 61,913
Unallocated interest expense......................... (1,488) (2,870)
Income and social contribution taxes................ (231,713) (266,949)
Minority interests, Brazilian GAAP basis............ (92,925) (138,599)
Add (deduct):
Items posted directly to shareholder's equity:
Effects of changes in income tax rates............ 2,286 13,241
Fiscal tax incentive investments credits.......... 21,936 44,794
Deferred tax on full indexation................... (159,593) (150,147)
Deferred tax effects of the above adjustments:
In respect of continuing operations................ 54,933 20,680
In respect of discontinued operations.............. 2,807 (480)
Minority interest in above adjustments.............. 44,791 72,126
----------- -----------
US GAAP net income................................... 622,570 673,743
=========== ===========
NET INCOME PER THOUSAND SHARES IN ACCORDANCE WITH US GAAP
Common shares--Basic................................. 1.94 2.10
Weighted average (thousand) common shares
outstanding....................................... 124,351,903 124,351,903
=========== ===========
Common shares--Diluted............................... 1.71 1.98
Weighted average (thousand) common shares
outstanding....................................... 124,351,903 124,351,903
=========== ===========
Preferred shares--Basic.............................. 1.94 2.10
Weighted average (thousand) preferred shares
outstanding....................................... 196,311,647 196,311,647
=========== ===========
Preferred shares--Diluted............................ 1.71 1.98
Weighted average (thousand) preferred shares
outstanding....................................... 196,311,647 196,311,647
=========== ===========
</TABLE>
F-39
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
SHAREHOLDERS EQUITY RECONCILIATION OF THE DIFFERENCES BETWEEN US AND BRAZILIAN
GAAP
<TABLE>
<CAPTION>
1996 1997
---------- ----------
<S> <C> <C>
Total shareholders' equity as reported.................. 4,968,654 5,410,826
Add (deduct):
Different criteria for:
Capitalized interest.................................. (609,231) (701,148)
Amortization of capitalized interest.................. 266,257 307,561
Reversal of proposed dividends......................... 161,770 192,851
Contributions to plant expansion:
Amortization of deferred credit....................... 52,566 84,909
Subscribed capital stock.............................. 59,205 (130,731)
Donations and subsidies for investment................ (40,435) (60,736)
Deferred tax effects of the above adjustments.......... 203,202 223,882
Adjustments in respect of discontinued operations:
Adjustments before income taxes....................... (25,247) (23,794)
Deferred tax effects of these adjustments............. 8,332 7,852
Minority interest in above adjustments.................. (9,858) 16,740
---------- ----------
US GAAP shareholders' equity........................... 5,035,215 5,328,212
========== ==========
US GAAP supplementary information:
Total assets........................................... 7,373,460 8,295,309
========== ==========
Property, plant and equipment.......................... 11,182,995 12,003,247
Accumulated depreciation............................... (5,562,838) (5,952,315)
---------- ----------
Net property, plant and equipment...................... 5,620,157 6,050,932
========== ==========
</TABLE>
The deferred tax effect of the US GAAP adjustments noted above would
principally be classified as noncurrent on the balance sheet.
F-40
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 31)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY IN ACCORDANCE WITH
US-GAAP
<TABLE>
<CAPTION>
CAPITAL AND RETAINED
RESERVES EARNINGS TOTAL
----------- --------- ---------
<S> <C> <C> <C>
Balances at December 31, 1995............... 3,284,976 1,154,334 4,439,310
Capital increase:
Cash....................................... 24,157 -- 24,157
Expansion plan contributions:
Received................................... 216,795 216,795
Deferred credits........................... (84,655) (84,655)
Realization of unrealized income............ (32,043) 32,043 --
Transfers to reserves....................... 32,432 (32,432) --
Forfeited dividends......................... -- (69) (69)
Net income.................................. 622,570 622,570
Dividends paid.............................. (89,456) (89,456)
Dividends declared but unclaimed............ (3,935) (3,935)
Minority interest on all movements in
shareholders' equity except for net
income..................................... (45,453) (44,049) (89,502)
--------- --------- ---------
Balances at December 31, 1996............... 3,396,209 1,639,006 5,035,215
Capital increase:
Cash....................................... 40,327 -- 40,327
Expansion plan contributions:
Received................................... 182,258 -- 182,258
Deferred credits........................... (24,096) -- (24,096)
Realization of unrealized income............ (26,864) 26,864 --
Transfers to reserves....................... 35,789 (35,789) --
Forfeited dividends......................... 1,187 1,187
Net income.................................. 673,743 673,743
Dividends paid.............................. -- (157,226) (157,226)
Dividends declared but unclaimed............ -- (4,544) (4,544)
Minority interest on all movements in
shareholders' equity except for net
income..................................... (262,473) (156,179) (418,652)
--------- --------- ---------
Balances at December 31, 1997............... 3,341,150 1,987,062 5,328,212
========= ========= =========
</TABLE>
30. ADDITIONAL DISCLOSURES REQUIRED BY US GAAP
A. POST-RETIREMENT BENEFITS
The Companies, together with other companies in the Telebras group, sponsor
multi-employer defined benefit pension and other post-retirement benefit
plans, which are operated and administered by Sistel. The funded status of the
Sistel pension and other post-retirement benefit plans and the related
actuarial assumptions in accordance with US GAAP are as follows:
<TABLE>
<CAPTION>
1996 1997
Pension benefit plan ---------- ----------
<S> <C> <C>
Funded status
Accumulated benefit obligation:
Vested........................................... 1,793,943 1,919,975
Non vested....................................... 3,250,909 3,479,300
---------- ----------
Total.......................................... 5,044,852 5,399,275
========== ==========
Projected benefit obligation...................... 6,636,907 7,258,074
Fair value of plan assets......................... (3,430,572) (3,897,051)
---------- ----------
Projected obligation in excess of assets.......... 3,206,335 3,361,023
========== ==========
The actuarial assumptions used were as follows:
Discount rate for determining projected benefit
obligations...................................... 6.00% 6.00%
Rate of increase in compensation levels........... 3.25% 3.25%
Expected long-term rate of return on plan assets.. 6.00% 6.00%
</TABLE>
The above are real rates and exclude inflation.
F-41
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
Amortization of the unrecognized liability at transaction: 18.94 years
commencing on January 1, 1991.
<TABLE>
<CAPTION>
1996 1997
Other post-retirement benefits plan --------- ---------
<S> <C> <C>
Funded status:
Accumulated post-retirement benefit obligations:
Retirees and dependents.............................. 371,125 380,561
Fully eligible active plan participants.............. 32,631 34,589
Other active plan participants....................... 885,917 997,791
--------- ---------
1,289,673 1,412,941
Fair value of plan assets............................ (76,600) (96,141)
--------- ---------
Funded status........................................ 1,213,073 1,316,800
========= =========
</TABLE>
Amortization of the unrecognized liability at transition: 18.84 years
commencing on January 1, 1992.
Health care cost trend rates of increase were projected at annual rates
excluding inflation ranging from 6.48% in 1998 decreasing to 2.00% in 2047.
The effect of a one percent annual increase in the assumed health care cost
trend rates would increase the accumulated post-retirement benefits obligation
at December 31, 1997 by R$237,063. Measurement of the accumulated post-
retirement benefit obligation was based on the same assumptions as were used
in the pension calculations.
The funded status of the pension and post retirement plans under Brazilian
and US GAAP differ. Benefit obligations differ because they have been prepared
using different actuarial assumptions permitted under Brazilian and US GAAP.
The net assets of the plans differ under Brazilian and US GAAP principally
due to the accrual of income tax contingencies of the pension fund for US GAAP
purposes in the amount of R$400,370 and R$487,269 in 1996 and 1997,
respectively.
B. CONCENTRATION OF RISK
The Companies are prohibited from investing any surplus cash balances in
financial instruments other than government securities controlled by the
Central Bank of Brazil or the Federal Government owned bank, Banco do Brasil
S.A. There have been no losses in cash equivalents.
Credit risk with respect to customer accounts receivable is diversified. The
Companies continually monitor the level of customer accounts receivable and
limit the exposure to bad debts by cutting access to the telephone network if
any invoice is one month past-due. Exceptions comprise telephone services that
must be maintained for reasons of safety or national security.
For conducting their business, the Companies are fully dependent upon the
fixed-line telecommunications concession as granted by the Federal Government.
Approximately 80.32% of all employees are members of state labor unions
associated either with the Federaco Nacional dos Trabalhadores em
Telecomunicacoes ("Fenattel"), or with the Federacao Interestadual dos
Trabalhadores em Telecomunicacoes ("Fittel"). Management negotiates new
collective labor agreements every year with the local unions. The collective
agreements currently in force expire in November 1998.
F-42
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
(SEE NOTES 1, 2 AND 28)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(Amounts expressed in thousands of constant Brazilian reais of December 31,
1997)
There is no concentration of available sources of labor, services,
concessions or rights, other than those mentioned above, that could, if
suddenly eliminated, severely impact the Companies' operations.
C. NEW ACCOUNTING PRONOUNCEMENTS
SFAS NO. 130, "REPORTING COMPREHENSIVE INCOME"
SFAS No. 130 establishes the standards for reporting and displaying
comprehensive income and its components (revenues, expenses, gains and losses)
as part of a full set of financial statements. This statement requires that
all elements of comprehensive income be reported in a financial statement that
is displayed with the same prominence as other financial statements.
SFAS NO. 131, "DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED
INFORMATION"
SFAS No. 131 establishes the standards for the manner in which public
enterprises are required to report financial and descriptive information about
their operating segments. The standard defines operating segments as
components of an enterprise for which separate financial information is
available and evaluated regularly as a means for assessing segment performance
and allocating resources to segments. A measure of profit or loss, total
assets and other related information are required to be disclosed for each
operating segment. In addition, this standard requires the annual disclosure
of information concerning revenues derived from the enterprise's products or
services; countries in which it earns revenues or hold assets, and major
customers.
SFAS NO. 132, "EMPLOYERS' DISCLOSURES ABOUT PENSIONS AND OTHER POST-RETIREMENT
BENEFITS"
SFAS No. 132 revises and standardizes employers' disclosures about pension
and other post-retirement benefit plans. It does not change the measurement or
recognition of those plans.
The Company will comply with the requirements of SFAS No. 130, 131 and 132 in
1998.
F-43
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
EXHIBIT VOLUME
SEPTEMBER 18, 1998
<PAGE>
TELE CENTRO SUL PARTICIPACOES S.A.
EXHIBIT INDEX
Exhibit
Number
1.1 Charter of the Registrant
1.2 Charter of the Registrant (English translation)
2.1 Deposit Agreement dated as of July 27, 1998 among the Registrant, The
Bank of New York, as Depositary, and Owners and Beneficial Owners of
American Depositary Receipts issued thereunder
10.1 Standard Concession Agreement for Local, Switched, Fixed-Line Telephone
Service and Schedule of Omitted Concession Agreements
10.2 Standard Concession Agreement for Local, Switched, Fixed-Line Telephone
Service (English translation)
10.3 Standard Concession Agreement for Domestic Long-Distance, Switched,
Telephone Service and Schedule of Omitted Concession Agreements
10.4 Standard Concession Agreement for Domestic Long-Distance, Switched,
Telephone Service (English translation)
23.1 Consent of KPMG Peat Marwick
<PAGE>
EXHIBIT 1.1
ESTATUTO SOCIAL DA
TELE CENTRO SUL PARTICIPACOES S.A.
CAPITULO I
DAS CARACTERISTICAS DA SOCIEDADE
Art. 1 - TELE CENTRO SUL PARTICIPACOES S.A. e uma sociedade
anonima, vinculada ao Ministerio das Comunicacoes, controladora de sociedades
exploradoras de servicos publicos de telefonia fixa, no Regiao II a que se
refere o Plano Geral de Outorgas aprovado pelo Decreto n 2.534, de 02 de abril
de 1998.
Paragrafo Unico - A Companhia se rege pela Lei das Sociedades por
Acoes, pelas disposicoes especiais de lei federal, pela legislacao de
telecomunicacoes, pelo presente Estatuto, pelas leis e usos do comercio e
demais dispositivos legais aplicaveis.
Art. 2 - A Companhia tem por objeto:
I. exercer o controle das sociedades exploradoras de servicos
publicos de telefonia fixa na Regiao II a que se refere o Plano
Geral de Outorgas aprovado pelo Decreto n 2.534, de 02 de abril
de 1998;
II. promover, atraves de sociedades controladas ou coligadas, a
expansao e implantacao de servicos de telefonia fixa, em sua
respectiva area de concessao;
III. promover, realizar ou orientar a captacao, em fontes internas e
externas, de recursos a serem aplicados pela Companhia ou pelas
suas controladas;
IV. promover e estimular atividades de estudos e pesquisas visando
ao leRenvalvimento do setor de telefonia fixa:
V. executar, atraves de sociedades controladas ou coligadas,
servicos tecnicos especializados afetos a area de telefonia
fixa;
VI. promover, estimular e coordenar, atraves de suas sociedades
controladas ou coligadas, a formacao e o treinamento do pessoal
necessario ao setor de telefonia fixa;
VII. realizar ou promover importacoes de bens e servicos para as
suas sociedades controladas e coligadas;
VIII. exercer outras atividades afins ou correlatas ao seu objeto
social; e
IX. participar do capital de outras sociedades.
<PAGE>
2
Art. 3 - A Companhia tem sede no Distrito Federal, podendo criar e
extinguir, por decisao do Conselho de Administravao, filiais, agencias
e sucursais, escritorios, departamentos e representasoes em qualquer
ponto do territorio nacional e no exterior.
Art. 4 - O prazo de duracao da Companhia e indeterminado.
CAPITULO II
DO CAPITAL SOCIAL
Art. 5 - O capital social subscrito, totalmente integralizado, e de
R$ 1.936.658.922,18 (um bilhao, novecentos e trinta e seis milhoes,
seiscentos e cinquenta e oito mil, novecentos e vinte e dois reais e
dezoito centavos), representado por 334.399.027.592 (trezentos e
trinta e quatro bilhoes, trezentos e noventa e nove milhoes, vinte e
sete mil, quinhentos e noventa e duas) acoes, sendo 124.369.030.532
(cento e vinte e quatro bilhoes, trezentos e sessenta e nove milhoes,
trinta mil, quinhentos e trinta e dois) ordinarias nominativas e
210.029.997.060 (duzentos e dez bilhoes, vinte e nove milhoes,
novecentos e noventa e sete mil e sessenta) preferenciais nominativas,
todas sem valor nominal.
Art. 6 - A Companhia esta autorizada a aumentar seu capital social,
mediante deliberacao da Assembleia Geral, ate o limite de
700.000.000.000 (setecentos bilhoes) de acoes, ordinarias ou
preferenciais.
Paragrafo Unico - Dentro do limite do capital autorizado de que
trata o caput deste artigo, a Assembleia Geral pode aprovar a outorga
de opcao de compra de acoes a seus administradores, empregados e a
pessoas naturais que prestem servicos a Companhia ou a empresas por
ela controladas.
Art. 7 - O capital social e representado por acoes ordinarias e
preferenciais, sem valor nominal, nao havendo obrigatoriedade, nos
aumentos de capital, de se guardar proporvao entre elas, observadas as
disposicoes legais e estatutarias.
Art. 8 - Por deliberacao da Assembleia, pode ser excluido o direito
de preferencia para emissao de acoes, debentures conversiveis em
acoes e bonus de subscricao cuja colocacao seja feita mediante:
I. subscricao publica ou venda em bolsa de valores;
II. permuta por acoes em oferta publica de aquisicao de controle,
nos termos dos arts. 257 e 263 da Lei das S/A;
IIl. gozo de incentivos fiscais, nos termos de lei especial.
Art. 9- A cada acao ordinaria corresponde o direito a um voto nas
delibera, coes da Assembleia Geral.
Art. 10 - As acoes preferenciais nao tem direito a voto, exceto na
hipotese do nararrafo unico do art. 13 deste estatuto, sendo a elas
assegurada prioridade no reembolso de
<PAGE>
3
capital, sem premio, e no pagamento de dividendos minimos, nao
cumulativos, de 6% (seis por cento) ao ano, sobre o valor resultante
da divisao do capital subscrito pelo numero total de acoes da
Companhia.
Paragrafo Unico - As acoes preferenciais adquirirao o direito a
voto se a Companhia, por um prazo de 3 (tres) anos consecutivos,
deixar de pagar os dividendos minimos a que fazem jus nos termos do
caput deste artigo.
Art. 11 - As acoes da Companhia serao escriturais, sendo mantidas
em conta de deposito, em instituicao financeira, em nome de seus
titulares, sem emissao de certificados.
CAPITULO III
DA ASSEMBLEIA GERAL
Art. 12 - A Assembleia Geral e o orgao superior da Companhia, com
poderes para deliberar sobre todos os negocios relativos ao objeto
social e tomar as providencias que julgar convenientes a defesa e ao
desenvolvimento da Companhia.
COMPETENCIA PRIVATIVA
Art. 13 - Compete privativamente a Assembleia Geral:
I. reformar o Estatuto Social;
II. autorizar a emissao de debentures e de debentures conversiveis
em acoes ou vende-las, se em tesouraria, bem como autorizar a
venda de debentures conversiveis em acoes de sua titularidade de
emissao de empresas controladas, podendo delegar ao Conselho de
Administracao a deliberacao sobre a epoca e as condicoes de
vencimento, amortizacao ou resgate, a epoca e as condicoes de
pagamento dos juros, da participacao nos lucros e de premio de
reembolso, se houver e o modo de subscricao ou colocacao bem
como o tipo de debentures;
III. deliberar sobre a avaliacao de bens com que o acionista
concorrer para a formacao do capital social;
IV. deliberar sobre transformacao, fusao, incorporacao e cisao da
Companhia, sua dissolucao e liquidacao, eleger e destituir
liquidantes e julgar-lhes as contas;
V. autorizar a prestacao de garantias pela Companhia a obrigacoes
de terceiros. nestes nao incluidas as sociedades controladas;
VI. suspender o exercicio dos direitos do acionista que deixar de
cumprir obrigacoes impostas pela lei ou pelo Estatuto;
<PAGE>
4
VII. eleger ou destituir, a qualquer tempo, os membros do Conselho
de Administrac, ao e os membros do Conselho Fiscal;
VIII. fixar a remunera,cao, global ou individual, dos membros do
Conselho de Administracao, da Diretoria e do Conselho Fiscal;
IX. tomar, anualmente, as contas dos administradores e deliberar
sobre as demonstracoes financeiras por eles apresentadas;
X. deliberar sobre promocao de acao de responsabilidade civil a
ser movida pela Companhia contra os administradores, pelos
prejuizos causados ao seu patrimonio, na conformidade do
disposto no art. 159 da Lei das S/A;
XI. autorizar a alienacao, no todo ou em parte, das acoes de
sociedades controladas;
XII. deliberar sobre o aumento do capital social por subscricao de
novas acoes;
XIII. autorizar a renuncia a direitos de subscricao de acoes ou
debentures conversiveis em acoes de empresas controladas;
XIV. deliberar sobre a emissao de quaisquer outros titulos ou
valores mobiliarios, no Paisou no exterior;
XV. autorizar a permuta de acoes ou outros valores mobiliarios;
XVI. resolver sobre a emissao de acoes e bonus de subscricao
dentro dos limites de capital autorizado, observadas as
disposicoes legais e estatutarias;
XVII. aprovar previamente a celebracao de quaisquer contratos de
longo prazo entre a Companhia ou suas controladas, de um lado,
e o acionista controlador ou sociedades controladas, coligadas,
sujeitas a controle comum ou controladoras deste ultimo, ou que
de outra forma constituam partes relacionadas a Companhia, de
outra parte, salvo quando os contratos obedecerem a clausulas
uniformes.
Paragrafo Unico - Sem prejuizo do disposto no (S) 1 do art. 115 da
Lei n 6.404/76, os titulares de acoes preferenciais terao direito a
voto nas deliberacoes assembleares referidas no inciso XVII deste
artigo, assim como naquelas referentes a altera,cao dos seguintes
dispositivos estatutarios:
I. inciso XVII do art. 13;
II. paragrafo unico do art. 14; e
III. art. 46.
<PAGE>
5
Art. 14 - A Assembleia Geral sera convocada pelo Conselho de
Administracao, cabendo ao Presidente consubstanciar o respectivo ato,
ou na forma prevista no Paragrafo unico do art. 123 da Lei n
6.404/76.
Paragrafo Unico - Nas hipoteses do art. 136 da Lei n 6.404/76, a
primeira convocacao da Assembleia Geral sera feita com 30 (trinta)
dias de antecedencia, no minimo, e com antecedencia rninima de 10
(dez) dias, em segunda convocacao.
Art. 15 - A Assembleia Geral sera instalada pelo Presidente do
Conselho de Administracao ou, na ausancia deste, por qualquer
Conselheiro. Os acionistas presentes elegerao o presidente e o
secretario da assembleia.
Art. 16 - Dos trabalhos e deliberacoes da Assembleia Geral sera
lavrada ata, assinada pelos membros da mesa e pelos acionistas
presentes, que representem, no minimo, a maioria necessaria para as
deliberacoes tomadas.
(S) 1 - A ata sera lavrada na forma de sumario dos fatos, inclusive
dissidencias e protestos.
(S) 2 - Salvo deliberacao em contrario da Assembleia, as atas serao
publicadas com omissao das assinaturas dos acionistas.
Art. 17 - Anualmente, nos quatro primeiros meses subsequentes ao
termino do exercicio social, a Assembleia Geral se reunira,
ordinariamente, para:
I. tomar as contas dos administradores; examinar, discutir e
votar as demonstracoes financeiras;
II. deliberar sobre a destinacao do lucro liquido de exercicio e
a distribuicao de dividendos;
III. eleger os membros do Conselho Fiscal e, quando for o caso, os
membros do Conselho de Administracao.
Art. 18 - A Assembleia Geral se reunira, extraordinariamente, sempre
que os interesses da Companhia o exigirem.
CAPITULO IV
DA ADMrNISTRACAO DA COMPANHIA
SECAGX I
ORGAOS DA ADMINISTRACAO
CONSELHO E DIRETORIA
Art. 19 - A Administracao da Companhia sera exercida pelo Conselho
de Administracao e pela Diretoria.
<PAGE>
6
(S) 1 - O Conselho de Administracao, orgao de deliberacao,
colegiada, exercera a administracao superior da Companhia.
(S) 2 - A Diretoria e orgao executivo da administracao da
Companhia, atuando cada um de seus membros segundo a respectiva
competencia.
(S) 3 - As atribuicoes e poderes conferidos por lei a cada um dos
orgaos da administracao nao podem ser outorgados a outro orgao.
SECAO II
DO CONSELHO DE ADMINISTRACAO
Art. 20 - Compete ao Conselho de Administracao:
I. fixar a politica geral dos negocios da Companhia e acompanhar
sua execucao;
II. convocar a Assembleia Geral;
III. aprovar e submeter a Assembleia Geral as demonstracoes
financeiras e o Relatorio da Administracao da Companhia, neles
incluidas as demonstracoes consolidadas;
IV. eleger e destituir, a qualquer tempo, os Diretores da
Companhia, fixando lhes as atribuicoess observadas as
disposicoes legais e estatutarias;
V. aprovar, mediante proposta da Diretoria, a indicacao de titular
da Auditoria Interna;
VI. aprovar os planos gerais de Companhia;
VII. resolver sobre as condicoes de emissao de debentures, por
delegacao da Assembleia Geral;
VIII. aprovar o Regimento da Companhia, definindo sua estrutura
organizacional e especificando as atribuicoes de cada Diretor,
observadas as disposicoes legais e estatutarias;
IX. autorizar a alienacao dos bens imoveis de Companhia;
X. fiscalizar a gestao dos Diretiores de Companhia, examinar, a
qualquer tempo, os livros da Companhia, solicitar informacoes
sobre contratos celebrados ou em via de celebracao ou sobre
quaisquer outros atos;
XI. escolher e destituir os auditores independentes;
XII. aprovar e alterar o Regimento Interno do Conselho;
<PAGE>
7
XIII. conceder licenca e ferias aos membros do Conselho, indicando o
respectivo substituto;
XIV. aprovar a participacao da Companhia no capital de outras empresas
ou a cessacao dessa participacao;
XV. autorizar a aquisicao de acoes de emissao da Companhia, para
efeito de cancelamento ou permanencia em tesouraria e posterior
alienacao;
XVI. autorizar a emissao de notas promissorias comerciais ("commercial
papers");
XVII. executar outras atividades que Ihe sejam cometidas pela lei, pelo
Estatuto ou pela Assembleia Geral.
Art. 21 - O Conselho de Administracao sera composto de 11 (onze)
membros efetivos, a cada um dos quais correspondera um membro suplente que
substituira o efetivo, nas ausencias temporarias ou na definitiva deste ultimo
ou ate que o efetivo time posse.
Paragrafo Unico - Eleitos pela Assembleia Geral, os membros do Conselho
de Administracao terao mandato de 3 (tres) exercicios anuais, considerando-se
exercicio anual o periodo compreendido entre 2 (duas) Assembleias Gerais
Ordinarias.
Art. 22 - O membros do Conselho de Administracao sao eleitos pela
assembleia geral que escolhera, dentre eles, o Presidente do Conselho.
Art. 23 - O substituto eventual do Presidente do Conselho de
Administracao sera escolhido pelo proprio Conselho de Administracao, entre os
seus membros que integrem a Diretoria.
Paragrafo Unico - No caso de ausencias ou impedimentos que obstem a
tomada de deliberacao, os Conselheiros presentes poderao convocar
membros da Diretoria para compor o Conselho.
Art. 24 - O Conselho de Administracao reunir-se-a ordinariamente uma vez
a cada dois (2) meses e, extraordinariamente, mediante convocacao feita pelo
Presidente do ConseLho de Administracao ou por 2 (dois) Conselheiros, lavrando-
se ata de suas deliberacoes.
Art. 25 - O Conselho de Administracao deliberara por maioria de votos,
presente a maioria de seus membros, tendo o Presidente, alem,do voto comum, o de
qualidade e cabendolhe baixar os atos aue consubstanciem essas deliberacoes,
quando for o caso.
SECAO III
DA DIRETORIA
Art. 26 - A Diretoria sera composta de 1 (um) Presidente, 1 (um) Vice-
Presidente e 3 (tres) Diretores executivos, assim titulados:
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a) Diretor de Negocios;
b) Diretor de Rede;
c) Diretor de Suporte.
Paragrafo Unico - Os membros do Conselho de Administracao, ate o
maximo de 1/3 (um ter,co), poderao ser eleitos para cargos de Diretores.
Paragrafo Unico - O substituto eventual do Presidente do Conselho de
Administracao sera o Presidente da Companhia.
Art. 27 - Cabera ao Conselho de Administracao eleger os membros da
Diretoria, inclusive o Diretor-Presidente.
Art. 28 - E de 3 (tres) exercicios anuais o mandato da Diretoria,
podendo seus membros ser reeleitos ou destituidos, a qualquer tempo.
Paragrafo Unico - Para os efeitos deste artigo, considera-se como
exercicio anual o periodo compreendido entre duas assembleias gerais ordinarias.
Art. 29 - Em suas ausencias e impedimentos, o Presidente sera
substituido pelo Vice-Presidente, independentemente de qualquer designacao.
(S) 1 - No caso de faltas e impedimentos simultaneos do Presidente e
do VicePresidente, a Presidencia, sera exercida pelo Diretor designado pelo
Presidente em exercicio.
(S) 2 - O Vice-Presidente e os demais Diretores serao substituidos
pelo Diretor escolhido pela Diretoria.
Art. 30 - Compete a Diretoria Colegiada:
I. estabelecer politicas especificas e diretrizes decorrentes da
orientacao geral dos negocios fixada pelo Conselho de
Administracao;
II. aprovar convenios entre empresas controladas e outras
entidades prestadoras de servicos de telecomunicacoes e
submeter a Assembleia Geral, atraves do Conselho de
Administracao, os contratos referidos no art. 13, XVII,
zelando para que as sociedades controladas tambem o facam;
III. apreciar o orcamento e os planos gerais da Companhia,
submetendo-os a aprovacao do Conselho de Administracao;
IV. aprovar as propostas de empresas controladas relativas a
estrategia corporativa, as diretrizes gerais para a
organizacao, as diretrizes
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9
corporativas para o desenvolvimento da estrategia de mercado e
de rede, e ao plano de investimentos e orcamento;
V. apresentar periodicamente ao Conselho de Administracao a
evolucao geral dos negocios de Companhia;
VI. aprovar a agenda de propostas da Companhia e de empresas
controladas, para negociacao com o orgao regulador;
VII. resolver sobre a participacao da Companhia no capital de
empresas concessionarias de servicos de telecomunicacoes, de
acordo com as atividades e areas de concessao da Companhia,
ouvido previamente o orgao regulador;
VIII. indicar os representantes da Companhia na administracao das
empresas de que participe;
IX. submeter ao Conselho de Administracao proposta de indicacao
ou destituicao de titular da Auditoria Interna;
X. propor os criterios de remuneracao dos Diretores, dos membros
do Conselho de Administracao e dos membros do Conselho Fiscal
de emoresas controladas;
XI. propor ao Conselho de Administracao a alienacao dos bens
imoveis da Companhia e autorizar a alienacao dos demais bens
do ativo permanente, exceto quaisquer titulos ou valores
mobiliarios, no Pais ou no exterior;
XII. aprovar proposta ao Conselho de Administracao do Regimento da
Companhia com a respectiva estrutura organizacional e opinar
quanto as de controladas:
XIII. autorizar a pratica de atos gratuitos razoaveis, em beneficio
dos empregados ou da comunidade, tendo em vista as
responsabilidades sociais da Comnanhia;
XIV. apreciar o Balanco Geral e demais demonstracoes financeiras
e o Relatorio Anual da Companhia, bem como a proposta de
destinacao de resultado, submetendo-os ao Conselho Fiscal,
aos Auditores Independentes e ao Conselho de Administracao;
XV. resolver sobre representacoes da Companhia em qualquer ponto
do territorio nacional e, ouvido o Conselho de Administracao,
no exterior;
XVI. definir a competencia de Diretores e empregados para:
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10
a) praticar atos que constituam ou alterem obrigacoes da
Companhia, bem como aqueles quedesonerem terceiros para com ela;
b) autorizar o pagamento de multas imputadas a Companhia,
bem como indagar as causas e estabelecer as medidas
administrativas que se fizerem necessarias;
c) aprovar aquisicoes;
d) aprovar propostas de progressao de empregados.
XVII. aprovar proposta ao Conselho de Administracao do plano de cargos e
salarios, do regulamento de pessoal, do quadro de pessoal e do plano
de beneffcios e vantagens da Companhia;
XVIII. aprovar o seu Plano de Cooperacao Internacional e os de empresas
controladas;
XIX. decidir sobre a operacionalizacao e a implementacao de seus planos
e programas relativos as atividades de treinamento e administracao
de recursos humanos;
XX. aprovar a contracao de seguros de interesse da Companhia;
XXI. aprovar tabelas e respectivos reajustamentos das remuneracoes e dos
beneficios concedidos aos empregados e seus dependentes;
XXII. deliberar sobre proposicoes relativas a administracao e
desenvolvimento de recursos humanos formuladas pelas suas empresas
controladas, incluindo os respectivos quadros de pessoal;
XXIII. aprovar a abertura de contas em instituicoes financeiras e a
contratacao de emprestimos pela Companhia, no Pais e no exterior,
obedecida a legislacao em vigor;
XXIV. aprovar a constituicao de onus reais sobre bens da Companhia, para
concessao de garantia em operacoes de credito da Companhia e das
empresas controladas;
XXV. deliberar sobre financiamentos, emprestimos e concessao de avais,
fiancas e outras garantias semelhantes e repasse de recursos as
empresas controladas;
XXVI. aprovar proposta, a ser submetida a Agencia Nacional de
Telecomunicacoes- ANATEL, de reajuste das tarifas e precos dos
servicos de telecomunicacoes, de acordo com as atividades e areas
de concessao da Companhia;
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11
XXVII. aprovar normas para concessao, com interveniencia da Companhia, de
emprestimos aos empregados por instituicoes financeiras;
XXVIII. autorizar a alienacao, pelas empresas controladas, de bens do ativo
permanente vinculados a prestacao de servicos de
telecomunicacoes, de acordo com as atividades a areas de concessao
da Companhiae e a constituicao de onus reais sobre eles;
XXIX. aprovar as regras de escolha de determinados equipamentos e
materiais de telecomunicacoes, a serem observadas pelas empresas
controladas;
XXX. aprovar politicas, diretrizes e normas sobre comercializacao,
desenvolvimento, operacao e prestacao dos servicos de
telecomunicacoes, de acordo com as atividades e areas de concessao
da Companhia, aplicaveis a empresa e as suas controladas;
XXXI. deliberar sobre outros assuntos julgados como de competencia
coletiva da Diretoria, ou a ela atribuidos pelo Conselho de
Administracao.
Art. 31 - E a seguinte a competencia especifica de cada um dos membros da
Diretoria:
I - DO PRESIDENTE:
1. representar a Companhia em juizo ou fora dele, perante as
suas controladas, os acionistas e o publico em geral, podendo
nomear procuradores e desirnar prepostos;
2. exercer supervisao sobre todas as atividades da Empresa;
3. manter o Conselho de Administracao permanentemente informado
dos negocios da Companhia e de controladas;
4. delegar competencia ao Vice-Presidente, aos Diretores e a
empregados para a pratica de atos especificos;
5. baixar os atos que consubstanciem as resolucoes da
Diretoria, ou delas decorram;
6. designar representantes da Companhia nas assembleias de
empresas controladas e de outras de cujo capital participe;
7. determinar a publicacao do Relatorio Anual das Atividades da
Companhia;
8. dirigir as atividades referentes ao gerenciamento da
regulamentacao, orientacao juridica e auditoria;
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12
9. convocar as reunioes de Diretoria;
10. acompanhar o cumprimento das diretrizes governamentais
relacionadas a atuacao da Companhia e de suas controladas;
11. decidir sobre materia especifica de sua area de competencia,
em conformidade com as politicas e diretrizes estabelecidas
pela Diretoria Colegiada, ressalvados os casos previstos no
art. 30.
12. praticar atos de urgencia "ad referendum" da Diretoria.
II DO VICE-PRESIDENTE
1. substituir o Presidente em suas ausencias e impedimentos;
2. auxiliar o Presidente no desempenho das suas funcoes;
3. dirigir as atividades de coordenacao do planejamento e
desenvolvimento empresarial, no ambito da Companhia e de suas
controladas;
4. avaliar o desempenho das empresas controladas;
5. elaborar o Relatorio Anual das Atividades da Companhia;
6. propor, implementar e controlar a politica de tecnologia da
informacao, na empresa e suas controladas;
7. decidir sobre materia especifica de sua area de competencia,
em conformidade com as politicas e diretrizes Diretoria
Colegiada, ressalvados os casos previstos no art. 30;
8. executar outras atividades delegadas pelo Presidente.
III - DO DIRETOR DE NEGOCIOS
1. propor conceitos e politicas de desenvolvimento e exploracao
dos produtos e servicos das empresas controladas, bem como
coordenar e controlar o planejamento e a execucao das acoes
decorrentes da aplicacao destas politicas;
2. desenvolver diretrizes, propor a estrategia mercadologica e
coordenar a elaborac, e implementacao dos planos de
negocio das empresas controladas, de forma a atender as
necessidades dos clientes e maximizar o resultado da
exploracao dos servicos;
3. propor a estrutura de tarifacao dos servicos explorados
pelas empresas controladas. bem como a politica de precos
correspondente;
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13
4. propor politicas e coordenar o planejamento e a execucao
das atividades de relacionamento com os clientes nas
empresas controladas, abrangendo marketing, vendas,
atendimento, desenvolvimento de produtos e servicos,
faturamento e cobranca, e administraco das informacoes
de clientes;
5. decidir sobre materia especifica de sua area de competencia,
em conformidade com as politicas e diretrizes estabelecidas
pela Diretoria Colegiada, ressalvados os casos previstos no
art. 30;
6. executar outras atividades delegadas pelo Presidente.
IV - DO DIRETOR DE REDE
1. desenvolver diretrizes e coordenar a implantacao da
estrategia para capacitacao da rede, a fim de viabilizar os
servicos de telecomunicacoes, de acordo com as
necessidades de mercado definidas nos planos de negocio;
2. propor as especificacoes de sistemas, de equipamentos e de
materiais a serem utilizados nas empresas controladas e a
padronizacao, quando aconselhavel;
3. propor conceitos e politicas de operacao e manutencao da
rede das empresas controladas, bem como coordenar e
controlar o planejamento e o desenvolvimento das acoes
decorrentes da aplicacao destas politicas;
4. coordenar o planejamento tecnico e a implementacao dos
sistemas de telecomunicacoes por parte das empresas
controladas;
5. coordenar o planejamento e a execucao dos programas de
inversoes tecnicas vinculadas a rede das empresas
controladas;
6. zelar pelas politicas sobre qualidade e produtividade da
rede das empresas controladas, bem como coordenar, orientar
e controlar as acoes decorrentes da aplicacao destas
politicas;
7. propor as medidas necessarias a aplicacao da politica de
aquisicao de equipamentos e materiais de telecomunicacoes
e coordenar as atividades decorrentes;
8. coordenar as atividades referentes a selecao de industrias
e negociacao de contratos relativos a equipamentos e
materiais para as empresas controladas;
9. propor a estrategia tecnologica de longo prazo para o
desenvolvimento da rede das empresas controladas;
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14
10. identificar as oportunidades de investimentos voltadas para a
modernizacao e melhoria do desempenho operacional da rede das
empresas controladas;
11. decidir sobre materia especifica de sua area de competencia, em
conformidade com as politicas e diretrizes estabelecidas pela
Diretoria Colegiada, ressalvados os casos previstos no art. 30;
12. executar outras atividades delegadas pelo Presidente.
V - DO DIRETOR DE SUPORTE
1. propor politicas relativas as atividades economico-financeiras da
Companhia e das suas controladas;
2. executar as atividades de analise, acompanhamento e avaliacao do
desempenho economico-financeiras da Companhia e das suas
controladas;
3. propor e promover a captacao e a aplicacao de recursos financeiros
necessarios a implementacao dos programas das empresas controladas;
4. executar as atividades de administracao financeira da Companhia;
5. administrar as participacoes acionarias da Companhia em suas
controladas;
6. executar atividades de analise, acompanhamento e avaliacao do meio
ambiente economico-financeiro de influencia para a Companhia e suas
controladas;
7. exercer as atividades de planejamento e controle economico-
financeiro da Comnanhia e das suas controladas;
8. propor a alocacao de recursos financeiros geridos pela Companhia;
9. dirigir as atividades de administracao dos titulos mobiliarios da
Companhia;
10. propor politicas de recursos humanos aplicaveis a Companhia e as
suas controladas e implementar as medidas relativas a sua
aplicacao;
11. coordenar as atividades de administracao e de desenvolvimento de
recursos humanos da Companhia e de suas controladas;
12. executar, promover, estimular e coordenar a formacao e o
treinamento do oessoal necessario a Companhia e as suas controladas;
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15
13. administrar os recursos alocados para o desenvolvimento de recursos
humanos da Companhia e das suas controladas;
14. coordenar as atividades que envolvam cooperacao internacional de
interesse da Companhia e de suas controladas;
15. coordenar as atividades referentes a administracao de seguranca
empresarial, incluindo as orientacoes para as controladas;
16. dirigir as atividades de administracao no ambito da Companhia,
abrangendo as areas de recursos materiais, recursos humanos e
servicos gerais;
17. desenvolver e supervisionar o sistema de gerencia de material na
Companhia e suas controladas;
18. decidir sobre materia especifica de sua area de competencia, em
conformidade com as politicas e diretrizes estabelecidas pela
Diretoria Colegiada, ressalvados os casos previstos no art. 30;
19. executar outras atividades delegadas pelo Presidente.
SECAO IV
DISPOSIC, OES COMUNS AOS ADMINISTRADORES
Art. 32 - Alem dos casos de morte, renuncia, destituicao e outros
previstos em lei, dar-se-a a vacancia do cargo quando o administrador deixar de
assinar o termo de investidura no prazo de 30 (trinta) dias de eleicao ou deixar
o exercicio da funcao por mais de 30 (trinta) dias consecutivos ou 90 (noventa)
intercalados durante o prazo do mandato, tudo sem justa causa, a juizo do
Conselho de Administracao.
(S) 1 - Ocorrendo a vacancia do cargo de conselheiro, a substituicao
se fara segundo o disposto no art. 23 deste Estatuto, ate a realizacao
da primeira Assembleia que eleger o novo titular para completar o
mandato em curso.
(S) 2 - No caso de vacancia de 2/3 (dois tercos) dos cargos do
Conselho de Administracao, os membros remanescentes convocarao
imediatamente a Assembleia Geral.
(S) 3 - No caso de a vacancia de cargo da Diretoria, o Conselho
promovera a elecao do substituto para completar o mandato do
substituido.
(S) 4 - A renuncia ao cargo de administrador e feita mediante
comunicacao escrita ao orgao a que o renunciante integrar, tornando-
se eficaz, a partir desse momento, perante a Companhia e, perante
terceiros, apos o arquivamento do documento de renuncia no registro do
comercio e sua publicacao.
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16
Art. 33 - A remuneracao dos administradores sera fixada pela
Assembleia Geral, global ou individualmente.
CAPITULO V
CONSELHO FISCAL
Art. 34 - O Conselho Fiscal e o orgao de fiscalizacao da
administracao da Companhia, devendo funcionar permanentemente.
Art. 35 - O Conselho Fiscal sera composto de 3 (tres) membros
efetivos e 3 (tres) suplentes, acionistas ou nao, eleitos pela Assembleia Geral,
sendo um dos membros efetivos e respectivo suplente indicados pelo Ministro da
Fazenda, como representantes do Tesouro Nacional, nao computados os eleitos
pelas acffes ordinarias minoritarias e pelas acoes preferenciais.
(S) 1 - Eleitos pela Assembleia Geral Ordinaria, os membros do
Conselho Fiscal terao o mandato de 1 (um) exercicio anual, assim
considerado o periodo compreendido entre 2 (duas) Assembleias Gerais
Ordinarias, podendo ser reeleitos.
(S) 2 - Os membros do Conselho Fiscal, em sua primeira reuniao,
elegerao o seu Presidente, a quem cabera dar cumprimento as
deliberacffes do orgao.
(S) 3- O Conselho Fiscal podera solicitar a Empresa a designacao de
pessoal qualificado para secretaria-lo e prestar-lhe apoio tecnico.
Art. 36 - Ao Conselho Fiscal compete:
I. fiscalizar os atos dos administradores e verificar o comprimento
dos seus deveres legais e estatutarios;
II. opinar sobre o relatorio anual da administracao, fazendo constar
do seu parecer as informacoes complementares que julgar
necessarias ou uteis a deliberacao da Assembleia Geral;
III. opinar sobre as propostas dos orgaos da administracao, a serem
submetidas a Assembleia Geral, relativas a modificacao do
capital social, emissao de debentures ou bonus de subscricao,
planos de investimento ou orcamentos de capital, distribuicao
de dividendos, transformacao, incorporacao, fusao ou cisao:
IV. denunciar aos orgaos de administracao e, se estes nao tomarem as
providencias necessarias para a protecao dos interesses da
Companhia, a Assembleia Geral, os erros, fraudes ou crimes que
descobrir e sugerir providencias uteis a Companhia;
V. convocar a Assembleia Geral Ordinaria, se os orgaos de
administracao retardem por mais de 1 (um) mes essa convocacao, e
a extraordinaria,
<PAGE>
sempre que ocorrem motivos graves ou urgentes, incluindo na
ordem do dia das assembleias as materias que considerar
necessarias;
VI. analisar, ao menos trimestralmente, o balancete e demais
demonstracoes financeiras elaboradas periodicamente pela
Companhia;
VII. examinar as demonstracoes financeiras do exercicio social e
sobre elas opinar;
VIII. exercer as atribuicoes previstas em lei ou definidas pela
Assembleia Geral, no caso de liquidacao da Companhia.
Art. 37 - O Conselho Fiscal se reunira, ordinariamente, uma vez por
mes e, extraordinariamente, quando necessario.
(S) 1 - As reunioes serao convocadas pelo Presidente da Companhia
ou por qualquer dos membros do Conselho.
(S) 2 - O Conselho se manifesta por maioria de votos, presente a
maioria dos seus membros.
Art. 38 - Os membros do Conselho Fiscal serao substituidos, em suas
faltas e impedimentos, pelo respectivo suplente.
Art. 39 - Alem dos casos de morte, renuncia, destituicao e outros
previstos em lei, dar-se-a a vacancia do cargo quando o membro do Conselho
consecutivas ou 3 (tres) intercaladas, no exercicio anual.
(S) 1 - Ocorrendo a vacancia do cargo de membro do Conselho, a
substituicao se fara na forma do disposto no art. 39 deste Estatuto.
(S) 2 - Vagando mais da metade dos cargos e nao havendo suplentes a
convocar, a Assembleia Geral sera convocada para eleger os seus substitutos.
Art. 40 - A remuneracao dos membros do Conselho Fiscal sera fixada
pela Assembleia Geral Ordinaria que os eleger, e nao podera ser inferior, para
cada membro em exercicio, a um decimo da que, em media, for atribuida a cada
membro da Diretoria, nao computada a participacao nos lucros.
(S) 1 - A remuneracao sera paga de forma como o for aos membros da
Diretoria.
(S) 2 - O suplente em exercicio fara jus a remuneracao do efetivo,
no periodo em aue ocorrer a substituicao, contado mes a mes.
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18
CAPITULO VI
DO EXERCICIO SOCIAL E DAS DEMONSTRAC, OES FINANCEIRAS
Art. 41 - O exercicio social tera a duracao de 12 (doze) meses,
iniciando-se a 1 (primeiro) de janeiro de cada ano e terminado no ultimo dia do
mes de dezembro.
Art. 42 - Juntamente com as demonstracoes financeiras, os orgaos
da administracao da Companhia apresentarao a Assembleia Geral Ordinaria
proposta sobre a participacac dos empregados nos lucros, nas bases e condicoes
autorizadas pelo Conselho de Coordena,cao e Controle das Empresas Estatais -
CCE, e sobre a destinacao do lucro liquido do exercicio.
(S) 1 - Os lucros liquidos terao a seguinte destinacao:
a) 5% (cinco por cento) para a reserva legalate atingir 20% (vinte
por cento) do capital social integralizado;
b) 25% (vinte e cinco por cento) do lucro liquido ajustado na forma
dos incisos II e III do art. 202 da Lei n 6.404/76 serao
obrigatoriamente distribuidos como dividendos minimo obrigatorio
a todos os acionistas, respeitado o disposto no artigo seguinte,
sendo este valor aumentado ate o montante necessario para o
pagamento do dividendo prioritario acoes preferenciais.
(S) 2 - O saldo do lucro liquido nao alocado ao pagamento do
dividendo minimo obrigatorio ou ao dividendo prioritario das acoes
preferenciais sera destinado a uma reserva suplementar para expansao dos
negocios sociais, que nao podera ultrapassar 80% (oitenta por cento) do capital
social. Atingido este limite, cabera a Assembleia Geral deliberar sobre o saldo,
procedendo a sua distribuicao aos acionistas ou ao aumento do capital social.
Art. 43 - O valor correspondente ao dividendo minimo obrigatorio
sera destinado prioritariamente ao pagamento do dividendo prioritario das acoes
preferenciais ate o limite da preferencia; a seguir, serao pagos aos titulares
de acoes ordinarias ate o mesmo limite das acoes preferenciais; o saldo, se
houver, sera rateado por todas as acoes, em igualdade de condicoes.
(S) 1 - Os orgaos da administracao poderao pagar ou creditar juros
sobre o capital proprio nos termos do (S) 7 do artigo 9 da Lei 9.249/95, de
26/12/95 e legislacao e regulamentacao pertinentes, ate o limite dos
dividendos minimos obrigatorios de que trata o artigo 202, da Lei 6404/76, os
quais serao imputados a esses mesmos dividendos, mesmo quando incluidos no
dividendo minimo das acoes preferenciais.
(2) - Os dividendos nao reclamados no prazo de 3 (tres) anos
reverterao em favor da Companhia.
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19
CAPITULO VII
DA LIQUIDAC AO DA COMPANHIA
Art. 44 - A Companhia entrara em liquidacao nos casos previstos em
lei, ou por deliberac, ao da Assembleia Geral, que estabelecera a forma da
liquidacao, elegera o liquidante e instalara o Conselho Fiscal, para o periodo
da liquidacao, elegendo seus membros e fixando-lhes as respectivas remuneracoes.
CAPITULO VIII
DISPOSICOES GERAIS E TRANSITORIAS
Art. 45 - A aprovacao, pela Companhia, atraves de- seus
representantes, de operacoes de fusao, cisao, incorporacao ou dissolucao de
suas controladas sera precedida de analise econonimico-financeira por empresa
independente, de renome internacional, confirmando estar sendo dado tratamento
equitativo a todas as sociedades interessadas, cujos acionistas terao amplo
acesso ao relatorio da citada analise.
Confere com o original lavrado em livro proprio.
_____________________
Raimunda Nonata Pires
Secretaria
Visto do advogado:
<PAGE>
EXHIBIT 1.2
CHARTER OF
TELE CENTRO SUL PARTICIPACOES S.A.
CHAPTER I
CHARACTERISTICS OF THE COMPANY
Art. 1 TELE CENTRO SUL PARTICIPACOES S.A., a corporation, is subject to
the jurisdiction of the Ministry of Communication and is the controlling
shareholder of the companies that provide public fixed-line telephone services
in Region II, as referred to in the General Concession Plan approved by Decree
No. 2,534 of April 2, 1998.
Sole Paragraph The Company is governed by the Corporation Law, special
provisions of federal law, telecommunications legislation, this Charter,
commercial law and practices and other applicable legal provisions.
Art. 2 The purposes of the Company are:
I. to exercise control over the companies providing public fixed-line
telephone services in Region II, as referred to in the General
Concession Plan approved by Decree No. 2,534 of April 2, 1998;
II. to promote, through subsidiaries or affiliates, the expansion and
establishment of fixed-line telephone services in its concession area;
III. to promote, carry out or direct the acquisition of funds from internal
or external sources to be used by the Company or by its subsidiaries;
IV. to promote and foster study and research activities aimed at the
development of the fixed-line telephone sector;
V. to provide, through subsidiaries or affiliates, specialized technical
services in the fixed-line telephone sector;
VI. to promote, foster, and coordinate, through its subsidiaries or
affiliates, the education and training of the personnel required in
the fixed-line telephone sector;
VII. to carry out and promote the importation of goods and services for its
subsidiaries or affiliates;
VIII.to carry out other activities that are similar or related to its
corporate purposes; and
IX. to invest in shares of other companies.
Art. 3 The principal office of the Company is situated in the Federal
District, and the Company may, by decision of the Board of Directors, open or
close subsidiaries, agencies, branches, offices, departments and representative
offices anywhere in Brazil or abroad.
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2
Art. 4 The duration of the Company is indefinite.
CHAPTER II
CORPORATE CAPITAL
Art. 5 The corporate capital, fully subscribed and paid in, is
R$1,936,658,922.18 (one billion, nine hundred thirty six million, six hundred
fifty eight thousand, nine hundred twenty two reais and eighteen centavos),
represented by 334,399,027,592 (three hundred thirty four billion, three hundred
ninety nine million, twenty seven thousand, five hundred and ninety two) shares,
consisting of 124,369,030,532 (one hundred twenty four billion, three hundred
sixty nine million, thirty thousand, five hundred and thirty two) registered
common shares and 210,029,997,060 (two hundred ten billion, twenty nine million,
nine hundred ninety seven thousand and sixty) registered preferred shares, all
without par value.
Art. 6 The Company is authorized to increase its capital, by decision of
the Meeting of Shareholders, up to 700,000,000,000 (seven hundred billion)
shares of common or preferred stock.
Sole Paragraph Within the limit on the authorized capital provided for
herein, the Meeting of Shareholders may grant stock purchase options to its
managers and employees and to individuals who perform services on behalf of the
Company or its subsidiaries.
Art. 7 The corporate capital is represented by common and preferred
shares, without par value, and the Company is not required to maintain the
proportions of common and preferred shares when the corporate capital is
increased, subject to applicable law and this Charter.
Art. 8 The shareholders may decide to eliminate preemptive rights to
subscribe to shares, convertible debentures and subscription rights that are to
be:
I. placed by public issue or sale on a stock exchange;
II. exchanged for shares in a public offer for acquisition of control, as
provided in Arts. 257 and 263 of the Corporation Law; or
III. issued to take advantage of tax incentives, as provided by special
law.
Art. 9 Each common share is entitled to one vote at meetings of
shareholders.
Art. 10 Preferred shares are not entitled to voting rights except as
provided in the sole paragraph of Art. 13 of this Charter but are entitled to
priority in the repayment of corporate capital, without premium, and in the
payment of minimum non-cumulative dividends of 6% (six percent) per year, on the
amount computed by dividing the corporate capital by the total number of shares
of the Company.
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3
Sole Paragraph Preferred shares will become entitled to vote if the
Company fails to pay the minimum dividends as provided herein for a period of 3
(three) consecutive years.
Art. 11 Shares of the Company shall be in book entry form, shall be held
on deposit, with a financial institution in the names of the owners and shall
not be certificated.
CHAPTER III
MEETINGS OF SHAREHOLDERS
Art. 12 The Meeting of Shareholders is the highest body of the Company,
with the power to make decisions regarding all matters related to the corporate
purposes and to take the steps that it deems advisable for the protection and
development of the Company.
EXCLUSIVE POWERS
Art. 13 Only the Meeting of Shareholders shall have the power:
I. to amend this Charter;
II. to authorize the issuance of debentures or convertible debentures, or
sell them from treasury, or to authorize the sale of convertible
debentures of subsidiaries owned by the Company; the Meeting of
Shareholders may delegate to the Board of Directors the power to
decide on maturity and repayment and redemption terms, the interest
terms and timing of interest payments, equity participations, and
redemption premiums, if any, and the method of subscription or
placement, as well as the type of debentures;
III. to consider appraisals of assets being contributed by shareholders to
the Company's capital;
IV. to decide on changes of corporate form, mergers, consolidations and
split-ups of the Company and its dissolution and liquidation, and to
appoint liquidators, remove them from office and approve their
accounts;
V. to authorize the issuance of guaranties by the Company of obligations
of third parties other than its subsidiaries;
VI. to suspend the rights of shareholders who do not comply with
obligations imposed by law or this Charter;
VII. to elect members of the Board of Directors and members of the
Statutory Audit Committee and remove them from office at any time;
VIII.to decide on the aggregate or individual compensation of the members
of the Board of Directors, the Executive Officers, and the members of
the Statutory Audit Committee;
IX. to receive the annual accounts from management and decide on the
financial statements that they submit;
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4
X. to decide on the institution by the Company of proceedings
against members of management for damages caused to its assets,
as provided in Art. 159 of the Corporation Law;
XI. to authorize the disposition, in whole or in part, of shares of
a subsidiary;
XII. to decide on increases in capital through the issuance of new
shares;
XIII. to authorize waivers of rights to subscribe to shares or
convertible debentures of its subsidiaries;
XIV. to decide on the issuance of any other instruments or
securities, in Brazil or abroad;
XV. to authorize the exchange of shares or other securities;
XVI. to decide on the issuance of shares and subscription rights
within the limits of the authorized capital, as provided by law
and in this Charter; and
XVII. to approve before execution any long-term contracts between the
Company or its subsidiaries, on the one hand, and the
controlling shareholder or subsidiaries, affiliates, entities
under common control or controlling shareholders of the latter,
or companies that are otherwise related parties with respect to
Company, on the other hand, except when the contracts consist of
standard forms.
Sole Paragraph Without prejudice to the provisions of (S) 1 of Art. 115 of
Law No. 6,404/76, preferred shareholders shall have the right to vote on
decisions taken at Meetings of Shareholders of the kind referred to in item XVII
of this article, as well as those relating to the amendment or revocation of the
following provisions of this Charter:
I. item XVII of Art. 13;
II. the sole paragraph of Art. 14; and
III. Art. 46.
Art. 14 Meetings of Shareholders shall be called by the Board of Directors,
and minutes of meetings shall be approved by the Chairman or as provided in the
Sole Paragraph of Art. 123 of Law No. 6,404/76.
Sole Paragraph In the cases provided for in Art. 136 of Law No. 6,404/76,
the first notice of the Meeting of Shareholders shall be given at least 30
(thirty) days in advance and the second notice shall be given at least 10 (ten)
days in advance.
Art. 15 The Meeting of Shareholders shall be opened by the President of
the Board of Directors or, in case of his/her absence, by any director. The
shareholders present at the meeting shall elect the president and the secretary
of the meeting.
Art. 16 Minutes of Meetings of Shareholders shall be prepared and shall be
signed by the officers and by shareholders present at the meeting who represent
at least the minimum required for the decisions made.
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5
(S) 1 The minutes shall be prepared in summary factual form and shall
reflect dissenting opinions and protests.
(S) 2 Unless the meeting decides to the contrary, the minutes shall be
published without the signatures of the shareholders.
Art. 17 An Annual Meeting of Shareholders shall be held within four months
of the end of each fiscal year for the purpose of:
I. receiving the accounts of management and reviewing, discussing and
voting on the financial statements;
II. deciding on the allocation of the net profits for the fiscal year
and the distribution of dividends; and
III. electing the members of the Statutory Audit Committee and, when
applicable, the members of the Board of Directors.
Art. 18 A Special Meeting of Shareholders shall be held whenever the
interests of the Company so require.
CHAPTER IV
MANAGEMENT OF THE COMPANY
SECTION I
MANAGEMENT BODIES
BOARD OF DIRECTORS AND BOARD OF EXECUTIVE OFFICERS
Art. 19 The Company shall be managed by the Board of Directors and by the
Executive Officers.
(S) 1- The Board of Directors, acting as a collegiate body, shall be
responsible for managing the policies of the Company.
(S) 2- The Board of Executive Officers is the executive body for corporate
management, with each Executive Officer acting in accordance with his or her
powers.
(S) 3- The authority and powers conferred by law upon each of the
management bodies may not be granted to any other body.
SECTION II
BOARD OF DIRECTORS
Art. 20 The Board of Directors shall:
I. set the general business policy of the Company and ensure the execution
thereof;
<PAGE>
6
II. call Meetings of Shareholders;
III. approve and submit to the Meeting of Shareholders the financial
statements and the report of management, including the
consolidated financial statements;
IV. elect the Company's Executive Officers and remove them from office
at any time, and establish their powers, in accordance with
applicable law and the provisions of this Charter;
V. approve, on the basis of a recommendation of the Board of
Executive Officers, the appointment or removal from office of the
Internal Auditor;
VI. approve the general plans of the Company;
VII. decide on the terms for the issuance of debentures, by delegation
of the Meeting of Shareholders;
VIII. approve the Internal Regulations of the Company, define its
organizational structure and specify the powers of each Executive
Officer, in accordance with applicable law and the provisions of
this Charter;
IX. authorize disposals of real property of the Company;
X. supervise the management of the Company by the Executive Officers;
examine the Company's books at any time; and request information
regarding contracts that have been concluded or that are in the
process of being concluded, or any other documents;
XI. appoint the independent auditors and remove them from office;
XII. approve or amend the Internal Regulations of the Board;
XIII. grant leaves of absence and vacations to members of the Board,
indicating the respective alternates;
XIV. approve equity investments by the Company in other companies and
disposals thereof;
XV. authorize purchases of shares of the Company for cancellation or
retention in treasury and subsequent disposal;
XVI. authorize the issuance of commercial paper; and
XVII. carry out other activities assigned to it by law, by this Charter,
or by the Meeting of Shareholders.
Art. 21 The Board of Directors shall be composed of 11 (eleven) effective
members, to each of whom there will be an alternate member who shall replace the
effective member in case of impediment, temporary absences or definite ones in
which case the alternate shall remain in office until a new effective member is
elected.
Sole Paragraph The members of the Board of Directors shall be elected by
the Meeting of Shareholders for a term of 3 (three) years, a year consisting of
the period between 2 (two) Annual Meetings of Shareholders.
<PAGE>
7
Art. 22 The members of the Board of Directors are elected by the general
shareholders' meeting that shall designate among the elected who shall be the
Chairman of the Board.
Art. 23 The alternate Chairman of the Board, if any, shall be selected by
the Board of Directors itself from among its members who are also Executive
Officers.
Sole Paragraph In the event of absences or abstentions that prevent a
decision from being made, the Board members present at the meeting may call upon
on Executive Officers to join the Board.
Art. 24 The Board of Directors shall hold a regular meeting once every two
(2) months and shall hold special meetings when they are called by the Chairman
or by 2 (two) members of the Board of Directors, and minutes of meetings shall
be prepared.
Art. 25 The Board of Directors shall act by majority vote, with a majority
of the members present; the Chairman shall have a casting vote in addition to
his regular vote, and he shall be responsible for approving the minutes of
meetings, as necessary.
SECTION III
BOARD OF EXECUTIVE OFFICERS
Art. 26 The Board of Executive Officers shall consist of 1 (one)
President, 1 (one) Vice President and 3 (three) Executive Officers, with the
following titles:
a) Executive Officer Business
b) Executive Officer Network
c) Executive Officer Support
Sole Paragraph Up to 1/3 (one third) of the members of the Board of
Directors may be elected as Executive Officers.
Sole Paragraph The President shall be an alternate for the Chairman of the
Board of Directors.
Art. 27 - The Board of Directors shall elect the members of the Board of
Executive Officers, including the Chief Executive Officer.
Art. 28 The term of the Board of Executive Officers shall be 3 (three)
years, and the Executive Officers shall be eligible for reelection and may be
removed from office at any time.
Sole Paragraph For the purposes of this article, a year shall consist of
the period between two Annual Meetings of Shareholders.
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8
Art. 29 In the event of absences or impediments, the President shall be
automatically replaced by the Vice President.
(S) 1 In the event both the President and Vice President are absent
or unable to attend, the President shall designate an Executive Officer
to fill the office of President.
(S) 2 The positions of Vice President and all other Executive Officers
shall each be filled by an Executive Officer selected by the Board of
Executive Officers.
Art. 30 The Board of Executive Officers shall have the power:
I. to establish specific policies and guidelines within the general
business policies established by the Board of Directors;
II. to approve agreements between its subsidiaries and other entities that
provide telecommunications services and submit to the Meeting of
Shareholders, through the Board of Directors, contracts of the kind
referred to in Art. 13, XVII , and to ensure that its subsidiaries do
the same;
III. to evaluate the budget and general plans of the Company and submit the
budget and plans to the Board of Directors for approval;
IV. to approve proposals of its subsidiaries relating to corporate
strategy, general organizational guidelines, corporate guidelines for
developing market and network strategies, capital investment plans and
budgets;
V. to report periodically to the Board of Directors on the general
progress of the Company's business;
VI. to approve lists of proposals of the Company and its subsidiaries for
negotiations with the regulatory agency;
VII. to decide on investments by the Company in telecommunications services
concessionaires in accordance with the activities and concession areas
of the Company, after consultation with the regulatory agency;
VIII.to appoint representatives of the Company to participate in the
management of companies in which it has invested;
IX. to submit to the Board of Directors proposals regarding the
appointment or removal from office of the Internal Auditor;
X. to propose compensation criteria for the executive officers, members
of the boards of directors and members of statutory audit committees
of its subsidiaries;
XI. to make proposals to the Board of Directors regarding disposals of
real property of the Company, and to authorize the disposal of other
permanent assets, with the exception of instruments or securities, in
Brazil or abroad;
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9
XII. to approve proposals of the Board of Directors regarding the Internal
Regulations of the Company and the related organizational structure,
and to express views on those of the Company's subsidiaries;
XIII. to authorize reasonable contributions for the benefit of employees or
the community, bearing in mind the Company's social responsibilities;
XIV. to evaluate the balance sheet and the other financial statements and
the Company's Annual Report, and to make recommendations regarding
distributions of profits, submitting them to the Statutory Audit
Committee, the Independent Auditors and the Board of Directors;
XV. to decide on representative offices of the Company anywhere in Brazil
or abroad, after consultation with the Board of Directors;
XVI. to define the powers of the Executive Officers and employees:
a) to take actions that create or amend obligations of the
Company, and those that release third parties;
b) to authorize the payment of fines imposed on the Company,
and to investigate the causes and implement any necessary
administrative measures;
c) to approve purchases; and
d) to approve proposals relating to promotions of employees;
XVII. to approve proposals to the Board of Directors regarding the chart
of staff positions and salaries, work rules, the workforce chart,
and the Company's employee benefits plan;
XVIII. to approve the Company's International Cooperation Plan and those of
its subsidiaries;
XIX. to decide on the structuring and implementation of training and
human resources management plans and programs;
XX. to approve purchases of insurance for the Company;
XXI. to approve pay schedules and adjustments and benefits granted to
employees and their families;
XXII. to decide on proposals regarding the management and development of
human resources that are formulated by its subsidiaries, including
those concerning workforce charts;
XXIII. to approve the opening of accounts with financial institutions and
borrowings by the Company, in Brazil or abroad, in accordance with
applicable law;
XXIV. to approve the creation of liens on property of the Company to
secure financings of the Company and its subsidiaries;
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10
XXV. to decide on financings, borrowings, and the granting of sureties,
bonds and other similar guaranties and the relending of funds to its
subsidiaries;
XXVI. to approve proposals, to be submitted to the National
Telecommunications Agency ANATEL (Agencia Nacional de
Telecomunicacoes ANATEL), for the adjustment of tariffs and prices
for telecommunications services in accordance with the activities
and concession areas of the Company;
XXVII. to approve rules for the extension of loans to employees by
financial institutions with the participation of the Company;
XXVIII.to authorize the disposal, by the Company's subsidiaries, of
permanent assets used in providing telecommunications services in
accordance with the activities and concession areas of the Company
and the constitution of liens on such assets;
XXIX. to approve rules, to be followed by the Company's subsidiaries, for
the choice of specific telecommunications equipment and supplies;
XXX. to approve policies, guidelines and standards regarding the
marketing, development, operation and provision of
telecommunications services in accordance with the activities and
concession areas of the Company, applicable to the Company and its
subsidiaries;
XXXI. to decide on other matters deemed to be under the collective
jurisdiction of the Board of Executive Officers, or matters referred
by the Board of Directors.
Art. 31 The specific powers of each member of the Board of Executive
Officers are as follows:
I PRESIDENT:
1. to represent the Company in court or otherwise, vis-a-vis its
subsidiaries, the shareholders and the general public, with power to
appoint attorneys in fact or name representatives;
2. to supervise the Company's activities;
3. to keep the Board of Directors informed at all times on the business
of the Company and its subsidiaries;
4. to delegate authority to the Vice President, Executive Officers and
to employees to carry out specific actions;
5. to draw up documents that reflect the decisions of the Board of
Executive Officers or that derive from those decisions;
6. to appoint persons to represent the Company at meetings of
shareholders of its subsidiaries and of other companies in which it
has an equity interest;
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11
7. to authorize the publication of the Annual Report on the Company's
Activities;
8. to direct activities related to the management of regulations, legal
advice and auditing;
9. to call meetings of the Board of Executive Officers;
10. to supervise compliance with governmental guidelines related to the
activities of the Company and its subsidiaries;
11. to decide on matters within his jurisdiction, in accordance with the
policies and guidelines established by the Board of Executive
Officers, with the exception of the cases referred to in Art. 30; and
12. to carry out emergency actions referred to him by the Board of
Executive Officers.
II- VICE PRESIDENT:
1. to replace the President in the event of absence or impediment;
2. to assist the President in the performance of his duties;
3. to direct the coordination of business planning and development for
the Company and its subsidiaries;
4. to evaluate the performance of its subsidiaries;
5. to draft the Annual Report on the Company's Activities;
6. to propose, implement and manage the information technology policies
of the Company and its subsidiaries;
7. to decide on matters within his jurisdiction, in accordance with the
policies and guidelines established by the Board of Executive
Officers, with the exception of the cases referred to in Art. 30; and
8. to carry out other tasks delegated to him by the President.
III- EXECUTIVE OFFICER BUSINESS:
1. to propose concepts and policies for the development and operation of
products and services of the Company's subsidiaries, as well as coordinate
and manage the activities arising from the implementation of such policies;
2. to develop guidelines, propose market strategies and coordinate the
creation and implementation of the business plans of the Company's
subsidiaries in order to respond to customers' needs and maximize the
results of the services operated by such subsidiaries;
3. to propose a rate structure for the services operated by the
Company's subsidiaries as well as a corresponding rate policy;
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12
4. to propose policies and coordinate the planning and implementation of
customer-related activities of the Company's subsidiaries, including
marketing, sales, customer assistance, product and services development,
billing and collection, and managing customer information;
5. to decide on matters within his jurisdiction, in accordance with the
policies and guidelines established by the Board of Executive Officers,
with the exception of the cases provided for in Art. 30; and
6. to carry out other tasks delegated to him by the President.
IV- EXECUTIVE OFFICER NETWORK
1. to develop guidelines and coordinate the implementation of the
strategy for running the network in order to make telecommunications
services viable in accordance with market requirements, as defined in the
business plans;
2. to propose specifications for the systems, equipment and supplies to
be used by the Company's subsidiaries, and their standardization when
advisable to do so;
3. to propose concepts and policies for the operation and maintenance of
the network of the Company's subsidiaries, as well as coordinate and manage
the planning and development of activities arising from the implementation
of such policies;
4. to coordinate technical planning and implementation of
telecommunications systems by the Company's subsidiaries;
5. to coordinate the planning and implementation of technical investment
programs related to the network of the Company's subsidiaries;
6. to oversee the policies concerning the productivity and quality of
the network of the Company's subsidiaries, as well as coordinate, orient
and control the activities arising from the implementation of such
policies;
7. to propose measures necessary for the implementation of the policy on
the acquisition of telecommunications equipment and supplies, and
coordinate the activities related thereto;
8. to coordinate the activities related to the selection of companies
and contract negotiations related to equipment and supplies for the
Company's subsidiaries;
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13
9. to propose the long term technological strategy for the
development of the network of the Company's subsidiaries;
10. to identify investment opportunities regarding the modernization
and improvement of operational performance of the network of the Company's
subsidiaries;
11. to decide on matters within his jurisdiction, in accordance with
the policies and guidelines established by the Board of Executive Officers,
with the exception of the cases provided for in Art. 30; and
12. to carry out other tasks delegated to him by the President.
V- EXECUTIVE OFFICER - SUPPORT
1. to propose policies relating to the business and financial
activities of the Company and its subsidiaries;
2. to perform analyses and assessment of the business and financial
performance of the Company and its subsidiaries;
3. to propose and promote the procurement and application of the
financial resources needed to implement the programs of Company's
subsidiaries;
4. to implement the Company's financial management activities;
5. to manage the Company's shareholdings in its subsidiaries;
6. to carry out analyses and assessment of the business and financial
environment influencing the Company and its subsidiaries;
7. to carry out business and financial planning and control of the
Company and its subsidiaries;
8. to propose the allocation of financial resources managed by the
Company;
9. to direct the activities related to the administration of the
Company's investment securities;
10. to propose human resource policies applicable to the Company and
its subsidiaries and to take measures for their implementation;
11. to coordinate the administrative and development activities
regarding the human resources of the Company and its subsidiaries;
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14
12. to carry out, promote, foster and coordinate the necessary training
and education of personnel of the Company and its subsidiaries;
13. to administer the resources allocated for the development of human
resources of the Company and its subsidiaries;
14. to coordinate the activities involving international cooperation of
the interests of the Company and its subsidiaries;
15. to coordinate activities related to the administration of company
security, including the orientation of the Company's subsidiaries to such
activities;
16. to direct the administrative activities within the Company
including material resources, human resources and general services;
17. to develop and supervise the system of materials management in the
Company and its subsidiaries;
18. to decide on matters within his jurisdiction, in accordance with
the policies and guidelines established by the Board of Executive Officers,
with the exception of the cases provided for in Art. 30; and
19. to carry out other tasks delegated to him by the President.
SECTION IV
PROVISIONS COMMON TO MEMBERS OF MANAGEMENT
Art. 32 Besides cases of death, resignation and removal from office and
other cases provided for by law, a position shall be deemed vacant when a member
of management fails to take office within 30 (thirty) days after his election or
fails to perform his duties for more than 30 (thirty) consecutive days or a
total of 90 (ninety) days during the term of office without just cause in the
opinion of the Board of Directors.
(S) 1- Board vacancies shall be filled as provided in Art. 23 of this
Charter until the next Meeting of Shareholders, at which time a new member shall
be elected to complete the current term.
(S) 2- If 2/3 (two thirds) of the positions of the Board positions become
vacant, the remaining members shall immediately call a Meeting of Shareholders.
(S) 3- In the event of a vacancy in an Executive Officer position, the
Board shall elect a replacement to complete the member's term.
(S) 4- Resignation from a management position shall be accomplished by
written notice to the body to which the resigning party belongs and shall be
effective vis-a-vis the
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15
Company at that time, and vis-a-vis third parties after the notice of
resignation is filed with the commercial registry and published.
Art. 33 The compensation of members shall be determined in the aggregate
or individually by the Meeting of Shareholders.
CHAPTER V
STATUTORY AUDIT COMMITTEE
Art. 34 The Statutory Audit Committee is the body that audits the
management of the Company, and it shall function on a permanent basis.
Art. 35 The Statutory Audit Committee shall be composed of 3 (three)
regular members and 3 (three) alternates, who need not be shareholders, elected
by the Meeting of Shareholders; one of the regular members and his alternate
shall be named by the Minister of Finance, as representative of the National
Treasury, in addition to those elected by minority shareholders of common and by
the preferred shares.
(S) 1- The members of the Statutory Audit Committee shall be elected at the
Annual Meeting of Shareholders for a term of 1 (one) year, consisting of the
period between two Annual Meetings of Shareholders, and they shall be eligible
for reelection.
(S) 2- At the first meeting of the members of the Statutory Audit
Committee, they shall elect a Chairman, who shall be responsible for
implementing the decisions of the committee.
(S) 3- The Statutory Audit Committee may ask the Company to appoint
qualified personnel to act as secretary and to provide technical support.
Art. 36 The duties of the Statutory Audit Committee shall be:
I. to audit the actions of management and verify compliance with the
requirements of law and this Charter;
II. to provide opinions regarding the annual report of management,
indicating any additional information that it deems necessary or
useful for the Meeting of Shareholders;
III. to provide opinions regarding the proposals of the management bodies
to be submitted to the Meeting of Shareholders, regarding changes to
the corporate capital, the issuance of debentures or subscription
rights, capital investment plans and budgets, distributions of
dividends, changes in corporate form, consolidations, mergers or
split-ups;
IV. to report to the management bodies and, if the latter do not take the
necessary steps to protect the interests of the Company, to the
Meeting of Shareholders, on any errors, frauds, or crimes that it
discovers and to recommend necessary steps to the Company;
<PAGE>
16
V. to call the Annual Meeting of Shareholders if the management bodies
delay in calling it for more than 1 (one) month, and to call a
special meeting if serious or urgent reasons exist, including in
the agendas of the meetings the matters that it deems necessary;
VI. to analyze, not less frequently than quarterly, the interim balance
sheet and other financial statements prepared periodically by the
Company;
VII. to examine the financial statements for the fiscal year and provide
an opinion regarding them; and
VIII. to carry out the duties stipulated by law or defined by the Meeting
of Shareholders in the event of the liquidation of the Company.
Art. 37 The Statutory Audit Committee shall hold a regular meeting once a
month and shall hold special meetings as necessary.
(S) 1- Meetings shall be called by the President of the Company or by any
member of the Committee.
(S) 2- The Committee shall act by majority vote, with a majority of the
members present.
Art. 38 Each member of the Statutory Audit Committee shall be replaced, in
the event of absence or impediments, by the respective alternate member.
Art. 39 Besides cases of death, resignation and removal from office and
other cases provided for by law, a position shall be deemed vacant when a member
of the Statutory Audit Committee fails, without just cause, to attend 2 (two)
consecutive meetings or a total of 3 (three) meetings during a year.
(S) 1- Vacancies shall be filled as provided in Art. 39 of this Charter.
(S) 2- If more than half of the positions become vacant and there are no
alternates to meet, a Meeting of Shareholders shall be called to elect
replacements.
Art. 40 The compensation of the members of the Statutory Audit Committee
shall be determined by the Meeting of Shareholders that elects them, and it
shall not be less, for each active member, than one tenth, on average, of the
compensation of each Executive Officer, not including profit sharing.
(S) 1- The compensation shall be paid in the same manner as that of the
Executive Officers.
(S) 2- Active alternate members shall be entitled to compensation during
the periods in which they act as replacements, counting from month to month.
<PAGE>
17
CHAPTER VI
FISCAL YEAR AND FINANCIAL STATEMENTS
Art. 41 The fiscal year shall have a duration of 12 (twelve) months,
beginning on the 1st (first) of January of each year and ending on the last day
of December.
Art. 42 Along with the financial statements, the management bodies of the
Company shall submit to the Meeting of Shareholders proposals regarding the
employees' share in the profits, and regarding the distribution of the net
profits for the year.
(S) 1- The net profits shall be allocated as follows:
a) 5% (five percent) to the legal reserve, up to 20% (twenty percent)
of the paid-in capital; and
b) 25% (twenty five percent) of the net profits adjusted in accordance
with items II and III of Art. 202 of Law No. 6,404/76 shall be
distributed as minimum mandatory dividends to all shareholders, in
accordance with the provisions of the following article, and this
amount shall be increased until it equals the amount to be paid as
preferred dividends on the preferred shares.
(S) 2- The balance of the net profits not allocated to the payment of the
minimum mandatory dividend or the preferred dividends on preferred shares shall
be allocated to an additional reserve for expansion of the Company's businesses,
which may not exceed 80% (eighty percent) of the corporate capital. Once this
limit is reached, the Meeting of Shareholders shall allocate the balance,
proceeding with distributions to the shareholders or an increase in the
corporate capital.
Art. 43 The minimum mandatory dividend amount shall be allocated first to
payment of the preferred dividends on preferred shares, up to the preferred
limit, and thereafter by payments to the holders of common shares up to the same
limit as the preferred shares. The balance, if any, shall be paid pro rata to
all the shares on equal terms.
(S) 1- The management bodies are authorized to pay or credit interest on
capital as provided in (S) 7 of Article 9 of Law 9,249/95 of 12/26/95 and
applicable law and regulations, up to the limit of the minimum mandatory
dividends provided for in Article 202 of Law 6,406/76, which shall be credited
against said dividends, even when included in the minimum dividend for preferred
shares.
(S) 2- Dividends not claimed within 3 (three) years shall revert to the
Company.
<PAGE>
18
CHAPTER VII
LIQUIDATION OF THE COMPANY
Art. 44 The Company shall be liquidated in the cases provided for by law,
or by decision of the Meeting of Shareholders, which shall determine the manner
of liquidation, shall select the liquidator, and shall install a Statutory Audit
Committee for the period of the liquidation, elect its members and determine
their compensation.
CHAPTER VIII
GENERAL AND TRANSITORY PROVISIONS
Art. 45 Approval by the Company, through its representatives, of mergers,
split-ups, consolidations, or dissolutions of its subsidiaries shall be preceded
by an economic-financial analysis performed by an independent company of
recognized international standing, to confirm that all of the companies involved
are being treated equitably; the shareholders of the companies involved shall
have full access to the report on the analysis.
<PAGE>
EXHIBIT 2.1
- --------------------------------------------------------------------------------
TELE CENTRO SUL PARTICIPACOES S.A.
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of July 27, 1998
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<PAGE>
TABLE OF CONTENTS
Page
PARTIES............................................................ 1
RECITALS........................................................... 1
ARTICLE 1
DEFINITIONS
SECTION 1.01. American Depositary Shares.............. 1
SECTION 1.02. Beneficial Owner ....................... 2
SECTION 1.03. Business Day ........................... 2
SECTION 1.04. Commission ............................. 2
SECTION 1.05. Company ................................ 2
SECTION 1.06. Custodian .............................. 2
SECTION 1.07. Deposit Agreement ...................... 2
SECTION 1.08. Depositary; Corporate Trust
Office ................................ 2
SECTION 1.09. Deposited Securities ................... 2
SECTION 1.10. Dollars; Reais ......................... 3
SECTION 1.11. Foreign Currency ....................... 3
SECTION 1.12. Foreign Registrar ...................... 3
SECTION 1.13. Owner .................................. 3
SECTION 1.14. Pre-Release ............................ 3
SECTION 1.15. Receipts ............................... 3
SECTION 1.16. Registrar .............................. 3
SECTION 1.17. Regulation S ........................... 3
SECTION 1.18. Securities Act of 1933 ................. 3
SECTION 1.19. Shares ................................. 3
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form of Transferability of
Receipts .............................. 4
SECTION 2.02. Deposit of Shares ...................... 5
SECTION 2.03. Execution and Delivery of
Receipts .............................. 6
SECTION 2.04. Transfer of Receipts;
Combination and Split-up
of Receipts ..................... 7
SECTION 2.05. Surrender of Receipts and
Withdrawal of Shares .................. 7
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<PAGE>
SECTION 2.06. Limitations on Execution and
Delivery, Transfer and
Surrender of Receipts ................. 9
SECTION 2.07. Lost Receipts, etc. .................... 10
SECTION 2.08. Cancellation and Destruction
of Surrendered Receipts ............... 10
SECTION 2.09. Pre-release of Receipts ................ 10
SECTION 2.10. Maintenance of Records ................. 11
ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates
and Other Information ................. 12
SECTION 3.02. Liability of Owner or
Beneficial Owner for Taxes ............ 12
SECTION 3.03. Warranties on Deposit of
Shares ................................ 13
SECTION 3.04. Disclosure of Interests ................ 13
ARTICLE 4
THE DEPOSITED SECURITIES
SECTION 4.01. Cash Distributions ..................... 14
SECTION 4.02. Distributions Other Than
Cash, Shares or Rights ................ 15
SECTION 4.03. Distributions in Shares ................ 16
SECTION 4.04. Rights ................................. 16
SECTION 4.05. Conversion of Foreign
Currency .............................. 18
SECTION 4.06. Fixing of Record Date .................. 20
SECTION 4.07. Voting of Deposited
Securities ............................ 20
SECTION 4.08. Changes Affecting Deposited
Securities ............................ 22
SECTION 4.09. Reports ................................ 22
SECTION 4.10. Lists of Owners ........................ 23
SECTION 4.11. Withholding ............................ 23
ARTICLE 5
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01. Maintenance of Office and
Transfer Books by the
Depositary ............................ 24
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<PAGE>
SECTION 5.02. Prevention or Delay in
Performance by the
Depositary or the Company ............. 25
SECTION 5.03. Obligations of the Depositary,
the Custodian and the Company ......... 25
SECTION 5.04. Resignation and Removal of
the Depositary ........................ 27
SECTION 5.05. The Custodian .......................... 27
SECTION 5.06. Notices and Reports .................... 28
SECTION 5.07. Distribution of Additional
Shares, Rights, etc. .................. 29
SECTION 5.08. Indemnification ........................ 29
SECTION 5.09. Charges of Depositary .................. 30
SECTION 5.10. Exclusivity ............................ 31
ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment .............................. 32
SECTION 6.02 Termination ............................ 32
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Counterparts ........................... 33
SECTION 7.02. No Third Party Beneficiaries ........... 34
SECTION 7.03. Severability ........................... 34
SECTION 7.04. Binding Effect on Owners
and Beneficial Owners ................. 34
SECTION 7.05. Notices ................................ 34
SECTION 7.06. Governing Law .......................... 35
SECTION 7.07. Headings ............................... 35
TESTIMONIUM ....................................................... 36
SIGNATURES ........................................................ 36
EXHIBIT A
FORM OF RECEIPT
-iii-
<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of July 27, 1998, among TELE CENTRO SUL
PARTICIPACOES S.A., a sociedade anonima de economia mista (a limited liability
company) organized under the laws of the Federative Republic of Brazil (herein
called the Company), THE BANK OF NEW YORK, a New York banking corporation
(herein called the Depositary), and all Owners and Beneficial Owners from time
to time of American Depositary Receipts issued hereunder.
W I T N E S S E T H
WHEREAS, the Company desires to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of
the Company from time to time with the Depositary or with the Custodian (as
hereinafter defined), as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in
the form of Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by
and between the parties hereto as follows:
ARTICLE 1
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. American Depositary Shares. The term "American
Depositary Shares" shall mean the securities representing the interests in the
Deposited Securities and evidenced by the Receipts issued hereunder. Each
American Depositary Share shall represent 1,000 Shares, until there shall occur
a distribution upon Deposited Securities covered by Section 4.03 or a change in
Deposited Securities covered by Section 4.08 or otherwise with respect to which
additional Receipts are not executed and delivered, and thereafter American
Depositary Shares shall evidence the
<PAGE>
amount of Shares or Deposited Securities specified in such Sections.
SECTION 1.02. Beneficial Owner. The term "Beneficial Owner" shall be
any person who has a beneficial interest in any American Depositary Share.
SECTION 1.03. Business Day. The term "Business Day" shall mean any
day on which both banks in Brazil and banks in New York, New York are not
required or authorized by law to close.
SECTION 1.04. Commission. The term "Commission" shall mean the
Securities and Exchange Commission of the United States or any successor
governmental agency in the United States.
SECTION 1.05. Company. The term "Company" shall mean Tele Centro Sul
Participacoes S.A., incorporated under the laws of Brazil, and its successors.
SECTION 1.06. Custodian. The term "Custodian" shall mean the
principal Sao Paulo, Brazil office of Banco Itau, as agent of the Depositary for
the purposes of this Deposit Agreement, and any other firm or corporation which
may hereafter be appointed by the Depositary pursuant to the terms of Section
5.05, as substitute or additional custodian or custodians hereunder, as the
context shall require and shall also mean all of them collectively.
SECTION 1.07. Deposit Agreement. The term "Deposit Agreement" shall
mean this Deposit Agreement, including the Exhibits hereto, as the same may be
amended from time to time in accordance with the provisions hereof.
SECTION 1.08. Depositary; Corporate Trust Office. The term
"Depositary" shall mean The Bank of New York, a New York banking corporation,
and any successor as depositary hereunder. The term "Corporate Trust Office",
when used with respect to the Depositary, shall mean the office of the
Depositary which at the date of this Deposit Agreement is 101 Barclay Street,
New York, New York 10286.
SECTION 1.09. Deposited Securities. The term "Deposited Securities"
as of any time shall mean Shares at such time deposited or deemed to be
deposited (including as contemplated under Section 2.09) under this Deposit
Agreement and any and all other securities, property and cash received or deemed
to be received by the Depositary or the Custodian in respect or in lieu of such
deposited Shares
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<PAGE>
and at such time held hereunder, subject as to cash to the provisions of
Section 4.05.
SECTION 1.10. Dollars; Reais. term "Dollars" shall mean United
States dollars. The term "Reais" shall mean the lawful currency of Brazil.
SECTION 1.11. Foreign Currency. The term "Foreign Currency" shall
mean currency other than Dollars.
SECTION 1.12. Foreign Registrar. The term "Foreign Registrar" shall
mean the entity that presently carries out the duties of registrar for the
Shares or any successor as registrar for the Shares and any other appointed
agent of the Company for the transfer and registration of Shares.
SECTION 1.13. Owner. The term "Owner" shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
SECTION 1.14. Pre-Release. The term "Pre-Release" shall have the
meaning set forth in Section 2.09.
SECTION 1.15. Receipts. The term "Receipts" shall mean the American
Depositary Receipts issued hereunder evidencing American Depositary Shares, as
the same may be amended from time to time in accordance with the provisions
hereof.
SECTION 1.16. Registrar. The term "Registrar" shall mean any bank or
trust company having an office in the Borough of Manhattan, The City of New
York, which shall be appointed to register Receipts and transfers of Receipts as
herein provided.
SECTION 1.17. Regulation S. The term "Regulation S" shall mean Rules
901 through 904, inclusive, under the Securities Act of 1933, as such Rules may
from time to time be amended.
SECTION 1.18. Securities Act of 1933. The term "Securities Act of
1933" shall mean the United States Securities Act of 1933, as from time to time
amended.
SECTION 1.19. Shares. The term "Shares" shall mean shares of the
Company's non-voting preferred stock, without par value, in registered form,
heretofore validly issued and outstanding and fully paid, nonassessable and free
of any pre-emptive rights of the holders of outstanding Shares or hereafter
validly issued, subscribed and
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<PAGE>
outstanding and fully paid, nonassessable and free of any pre-emptive rights of
the holders of outstanding Shares or interim certificates representing such
Shares.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved borders
or such other form as may be acceptable to the New York Stock Exchange and shall
be substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. No Receipt shall be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose, unless such Receipt
shall have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however, that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar. Receipts may be issued in denominations of any whole
number of American Depositary Shares. The Depositary shall maintain books on
which each Receipt so executed and delivered as hereinafter provided and the
transfer of each such Receipt shall be registered. Receipts bearing the
facsimile signature of a duly authorized signatory of the Depositary who was at
any time a proper signatory of the Depositary shall bind the Depositary,
notwithstanding that such signatory has ceased to hold such office prior to the
execution and delivery of such Receipts by the Registrar or did not hold such
office on the date of issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement or with any provisions of the Company's
charter or Brazilian law as may be reasonably required by the Depositary in
order to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange upon which American Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying
Deposited Securities or otherwise.
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<PAGE>
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument; provided, however, that the Depositary and the
Company, notwithstanding any notice to the contrary, may treat the Owner thereof
as the absolute owner thereof for the purpose of determining the person entitled
to distribution of dividends or other distributions or to any notice provided
for in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Shares. Subject to the terms and conditions
of this Deposit Agreement, Shares, or evidence of rights to receive Shares to
the extent permitted by Section 2.09, may be deposited by book-entry delivery
thereof to any Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer, or endorsement, in form satisfactory to the Custodian,
together with all such certifications as may be required by the Depositary, the
Custodian or the Company in accordance with the provision of this Deposit
Agreement, and, if the Depositary requires, together with a written order
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order, a Receipt or Receipts for the
number of American Depositary Shares representing such deposit. No Share shall
be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary that any necessary approval has been granted by the governmental body
or bodies in Brazil which is or are then regulating currency exchange. If
required by the Depositary, Shares presented for deposit at any time, whether or
not the transfer books of the Company or the Foreign Registrar, if applicable,
are closed, shall also be accompanied by (i) an agreement or assignment, or
other instrument satisfactory to the Depositary, which will provide for the
prompt transfer to the Custodian of any dividend, or right to subscribe for
additional Shares or to receive other property which any person in whose name
the Shares are or have been recorded may thereafter receive upon or in respect
of such deposited Shares, or in lieu thereof, such agreement of indemnity or
other agreement as shall be satisfactory to the Depositary and (ii) if the
Shares are registered in the name of the person on whose behalf they are
presented for deposit, a proxy or proxies entitling the Custodian to vote such
deposited Shares for any and all purposes until the Shares are registered in the
name of the Custodian or its nominees.
At the request and risk and expense of any person proposing to
deposit Shares, and for the account of such
-5-
<PAGE>
person, the Depositary may receive certificates for Shares to be deposited,
together with the other instruments herein specified, for the purpose of
forwarding such Share certificates to the Custodian for deposit hereunder.
Upon each delivery to a Custodian of Shares to be deposited
hereunder, together with the other documents above specified, such Custodian
shall, as soon as transfer and recordation can be accomplished, present such
evidence of ownership to the Company or the Foreign Registrar, if applicable,
for transfer and recordation of the Shares being deposited in the name of the
Depositary or its nominee or such Custodian or its nominee at the cost and
expense of the person making such deposit (or for whose benefit such deposit is
made) and shall obtain evidence satisfactory to it of such registration.
Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine.
SECTION 2.03. Execution and Delivery of Receipts. Upon receipt by
any Custodian of any deposit pursuant to Section 2.02 hereunder (and in
addition, if the transfer books of the Company or the Foreign Registrar, if
applicable, are open, the Depositary may in its sole discretion require a proper
acknowledgment or other evidence from the Company or the Foreign Registrar, as
the case may be, that any Deposited Securities have been recorded upon the books
of the Company or the Foreign Registrar, if applicable, in the name of the
Depositary or its nominee or such Custodian or its nominee), together with the
other documents required as above specified, such Custodian shall notify the
Depositary of such deposit and the person or persons to whom or upon whose
written order a Receipt or Receipts are deliverable in respect thereof and the
number of American Depositary Shares to be evidenced thereby. Such notification
shall be made by letter or, at the request, risk and expense of the person
making the deposit, by cable, telex or facsimile transmission. Upon receiving
such notice from such Custodian, or upon the receipt of Shares by the
Depositary, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall, as promptly as practicable, execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and evidencing
any authorized number of American Depositary Shares requested by such person or
persons, but only upon payment to the Depositary of the fees of the Depositary
for the execution and delivery of such
-6-
<PAGE>
Receipt or Receipts as provided in Section 5.09, and of all taxes and
governmental charges and fees, if any, payable in connection with such deposit
and the transfer of the Deposited Securities. The Depositary shall not issue
Receipts except in accordance with this Section 2.03 and Sections 2.04, 2.07,
2.09, 4.03, 4.04 and 4.08.
SECTION 2.04. Transfer of Receipts; Combination and Split-up of
Receipts. The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint, upon at least 20 days' written notice to
the Company, one or more co-transfer agents, reasonably acceptable to the
Company, for the purpose of effecting transfers, combinations and split-ups of
Receipts at designated transfer offices on behalf of the Depositary. In carrying
out its functions, a co-transfer agent may require evidence of authority and
compliance with applicable laws and other requirements by Owners or persons
entitled to Receipts and will be entitled to protection and indemnity to the
same extent as the Depositary.
SECTION 2.05. Surrender of Receipts and Withdrawal of Shares. Upon
surrender at the Corporate Trust Office of the Depositary of a Receipt for the
purpose of withdrawal of the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, and upon payment of the fee of the
Depositary for the surrender of Receipts as provided in Section 5.09 and payment
of all taxes and governmental charges, if any, payable in connection with such
surrender and withdrawal of the Deposited Securities, and subject to the terms
and conditions of this Deposit Agreement and the Company's
-7-
<PAGE>
Charter, the Owner of such Receipt shall be entitled to delivery, to him or upon
his order, of the amount of Deposited Securities at the time represented by the
American Depositary Shares evidenced by such Receipt. Delivery of such Deposited
Securities may be made by (a)(i) the delivery of certificates in the name of
such Owner or as ordered by him or certificates properly endorsed or accompanied
by proper instruments of transfer to such Owner or as ordered by him, or (ii)
book-entry transfer of the Shares represented by such Receipt to an account in
the name of such Owner or as ordered by him, and (b) delivery of any other
securities, property and cash to which such Owner is then entitled in respect of
such Receipts to such Owner or as ordered by him. Such delivery shall be made,
as promptly as practicable, as hereinafter provided.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall, as promptly as practicable, direct the Custodian to deliver at
the Sao Paulo office of such Custodian, subject to Sections 2.06, 3.01 and 3.02
and to the other terms and conditions of this Deposit Agreement and the
Company's Charter, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as above provided, the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, except that the Depositary may make delivery to such
person or persons at the Corporate Trust Office of the Depositary of any
dividends or distributions with respect to the Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt, or of any proceeds
of sale of any dividends, distributions or rights, which may at the time be held
by the Depositary.
At the request, risk and expense of any Owner so surrendering a
Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by letter
-8-
<PAGE>
or, at the request, risk and expense or such Owner, by cable, telex or
facsimile transmission.
Neither the Depositary nor the Custodian shall deliver Shares, by
physical delivery, book entry or otherwise (other than to the Company or its
agent as contemplated by Section 4.08), or otherwise permit Shares to be
withdrawn from the facility created hereby, except upon the receipt and
cancellation of Receipts.
SECTION 2.06. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender of any Receipt, the
delivery of any distribution thereon, or withdrawal of any Deposited Securities,
the Company, Depositary, Custodian or Registrar may require payment from the
depositor of Shares or the presenter of the Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax, charge or fee
with respect to Shares being deposited or withdrawn) and payment of any fees of
the Depositary as provided in Section 5.09, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such reasonable regulations the Depositary may
establish consistent with the provisions of this Deposit Agreement, including,
without limitation, this Section 2.06.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts or the combination or split-up of Receipts generally may
be suspended, during any period when the transfer books of the Depositary are
closed, or if any such action is deemed necessary or advisable by the Depositary
or the Company at any time or from time to time because of any requirement of
law or of any government or governmental body or commission, or under any
provision of this Deposit Agreement, or for any other reason, subject to the
provisions of the following sentence. Notwithstanding any other provision of
this Deposit Agreement or the Receipts, the surrender of outstanding Receipts
and withdrawal of Deposited Securities may be suspended only for (i) temporary
delays caused by closing the transfer books of the Depositary or the Company or
the deposit of Shares in connection with voting at a shareholders' meeting, or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
(iii) compliance with any U.S. or foreign laws or
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governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, or (iv) any other reason that may at any time be specified
in paragraph I(A)(1) of the General Instructions to Form F-6, as from time to
time in effect, or any successor provision thereto. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under this
Deposit Agreement any Shares required to be registered under the provisions of
the Securities Act of 1933, unless a registration statement is in effect as to
such Shares. The Depositary will comply with written instructions of the Company
that the Depositary shall not accept for deposit hereunder any Shares identified
in such instructions at such times and under such circumstances as may
reasonably be specified in such instructions in order to facilitate the
Company's compliance with the securities laws in the United States.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary shall execute and deliver a
new Receipt of like tenor in exchange and substitution for such mutilated
Receipt upon cancellation thereof, or in lieu of and in substitution for such
destroyed, lost or stolen Receipt. Before the Depositary shall execute and
deliver a new Receipt in substitution for a destroyed, lost or stolen Receipt,
the Owner thereof shall have (a) filed with the Depositary (i) a request for
such execution and delivery before the Depositary has notice that the Receipt
has been acquired by a bona fide purchaser and (ii) a sufficient indemnity bond
and (b) satisfied any other reasonable requirements imposed by the Depositary.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the Depositary.
The Depositary is authorized to destroy Receipts so cancelled, subject to
Section 2.10.
SECTION 2.09. Pre-Release of Receipts. The Depositary may issue
Receipts against rights to receive Shares from the Company (or any agent of the
Company recording Share ownership). No such issue of Receipts will be deemed a
"Pre-Release" subject to the restrictions of the following paragraph.
Unless requested by the Company to cease doing so, the Depositary
may, notwithstanding Section 2.03 hereof, execute and deliver Receipts prior to
the receipt of Shares pursuant to Section 2.02 ("Pre-Release"). The Depositary
may, pursuant to Section 2.05, deliver Shares upon the
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receipt and cancellation of Receipts which have been Pre-Released, whether or
not such cancellation is prior to the termination of such Pre-Release or the
Depositary knows that such Receipt has been Pre-Released. The Depositary may
receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation and
agreement from the person to whom Receipts are to be delivered (the
"Pre-Releasee") that the Pre-Releasee, or its customer, (i) owns the Shares or
Receipts to be remitted, as the case may be, (ii) assigns all beneficial right,
title and interest in such Shares or Receipts, as the case may be, to the
Depositary for the benefit of the Owners, and (iii) agrees in effect to hold
such Shares or Receipts, as the case may be, for the account of the Depositary
until delivery of the same upon the Depositary's request, (b) at all times fully
collateralized with cash or U.S. government securities, (c) terminable by the
Depositary on not more than five (5) business days notice, and (d) subject to
such further indemnities and credit regulations as the Depositary deems
appropriate. The number of American Depositary Shares which are outstanding at
any time as a result of Pre-Releases will not normally exceed thirty percent
(30%) of the American Depositary Shares outstanding (without giving effect to
American Depositary Shares evidenced by Receipts outstanding as a result of
Pre-Release); provided, however, that the Depositary reserves the right to
disregard such limit from time to time as it deems appropriate and may, with the
prior written consent of the Company, change such limit for purposes of general
application. The Depositary will also set limits with respect to the number of
Pre-Released Receipts involved in transactions to be done hereunder with any one
person on a case by case basis as it deems appropriate. The collateral referred
to in clause (b) above shall be held by the Depositary for the benefit of the
Owners as security for the performance of the obligations to deliver Shares or
Receipts set forth in clause (a) above (and shall not, for the avoidance of
doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
SECTION 2.10. Maintenance of Records. The Depositary agrees to
maintain or cause its agents to maintain records of all Receipts surrendered and
Deposited Securities withdrawn under Section 2.05, substitute Receipts delivered
under Section 2.07, and of cancelled or destroyed Receipts under Section 2.08,
in keeping with procedures ordinarily followed by stock transfer agents located
in The
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City of New York or as required by the laws or regulations governing the
Depositary. Prior to destroying any such records, the Depositary will notify the
Company and will turn such records over to the Company upon its request.
ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
person presenting Shares for deposit or any Owner of a Receipt may be required
from time to time to file with the Depositary or the Custodian such proof of
citizenship or residence, exchange control approval, legal or beneficial
ownership of Receipts, Deposited Securities or other securities, compliance with
all applicable laws or regulations or terms of this Deposit Agreement or the
Receipts, or such information relating to the registration on the books of the
Company or the Foreign Registrar, if applicable, to execute such certificates
and to make such representations and warranties, as the Depositary may deem
necessary or proper. The Depositary may withhold the delivery or registration of
transfer of any Receipt or the distribution of any dividend or sale or
distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made. The
Depositary shall from time to time advise the Company of the availability of any
such proofs, certificates or other information and shall provide copies thereof
to the Company as promptly as practicable upon request by the Company, unless
such disclosure is prohibited by law.
SECTION 3.02. Liability of Owner or Beneficial Owner for Taxes. If
any tax or other governmental charge shall become payable by the Custodian or
the Depositary with respect to any Receipt or any Deposited Securities
represented by any Receipt, such tax or other governmental charge shall be
payable by the Owner or Beneficial Owner of such Receipt to the Depositary. The
Depositary may refuse to effect any transfer of such Receipt or any combination
or split-up thereof or any withdrawal of Deposited Securities represented by
American Depositary Shares evidenced by such Receipt until such payment is made,
and may withhold any dividends or other distributions, or may sell for the
account of the Owner or Beneficial Owner thereof any part or all of the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt, and may apply such dividends or other distributions or the
proceeds of any
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such sale in payment of such tax or other governmental charge (and any taxes or
expenses arising out of such sale), and the Owner or Beneficial Owner of such
Receipt shall remain liable for any deficiency.
SECTION 3.03. Warranties on Deposit of Shares. Every person
depositing Shares under this Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares and each certificate therefor are validly
issued, fully paid, nonassessable and free of any preemptive rights of the
holders of outstanding Shares and that the person making such deposit is duly
authorized so to do. Every such person shall also be deemed to represent that
(i) the Shares presented for deposit are not, and the Receipts issuable upon
such deposit will not be, restricted securities within the meaning of Rule
144(a)(3) under the Securities Act of 1933, and (ii) the deposit of such Shares
and the sale of Receipts evidencing American Depositary Shares representing such
Shares by that person are not otherwise restricted under the Securities Act of
1933. Such representations and warranties shall survive the deposit of Shares
and issuance of Receipts.
SECTION 3.04. Disclosure of Interests. To the extent that provisions
of or governing any Deposited Securities (including the Company's Charter or
applicable law) may require the disclosure of beneficial or other ownership of
Deposited Securities, other Shares and other securities to the Company and may
provide for blocking transfer and voting or other rights to enforce such
disclosure or limit such ownership, the Depositary shall use its best efforts
that are reasonable under the circumstances to comply with Company instructions
as to Receipts in respect of any such enforcement or limitation, and Owners and
Beneficial Owners shall comply with all such disclosure requirements and
ownership limitations and shall cooperate with the Depositary's compliance with
such Company instructions.
The Depositary and the Company hereby confirm to each other that,
for as long as this Deposit Agreement is in effect, they shall furnish to the
Comissao de Valores Mobiliarios (the "CVM") and the Central Bank of Brazil any
information and documents related to the Receipts and the Depositary's
obligations hereunder as may be requested by such authorities from time to time,
whether such information and documents are requested from the Depositary or the
Company. In the event that the Depositary or the Custodian shall be advised (in
writing) by reputable independent Brazilian counsel that the Depositary or
Custodian reasonably could be subject to criminal or material, as
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reasonably determined by the Depositary, civil liabilities as a result of the
Company having failed to provide such information or documents reasonably
available only through the Company, the Depositary has the right to immediately
resign as Depositary and will not be subject to any liability hereunder for such
resignation or such determination, except that (i) the Depositary shall
promptly, but in no event later than three business days, if permitted by
applicable law, duly assign, transfer and deliver all right, title and interest
in and to the Deposited Securities held on account or on behalf of Owners to the
Company or its nominee and (ii) to the extent reasonably requested by the
Company and not prohibited by applicable law, the Depositary shall provide the
Company or any successor depositary hereunder with access, during normal
business hours, to such records as may be reasonably necessary to enable the
Company or such successor depositary to fulfill the obligations that the
Depositary would have had hereunder but for such resignation. Upon effectiveness
of such resignation the Depositary shall otherwise be discharged from all of its
obligations under this Deposit Agreement. In the event that the Depositary
resigns pursuant to this paragraph either (i) the Company will appoint a new
depositary, in which case the Company will assume the obligations stated as the
obligations of the Depositary under Section 5.04 herein or (ii) if the Company
fails to appoint a new depositary within 60 days of such resignation, this
Deposit Agreement shall be terminated in accordance with Section 6.02 herein and
the Company or its designated agent will assume the obligations stated as the
obligations of the Depositary in such section.
ARTICLE 4
THE DEPOSITED SECURITIES
SECTION 4.01. Cash Distributions. Whenever the Depositary, or on its
behalf, its agent, shall receive any cash dividend or other cash distribution on
any Deposited Securities, the Depositary shall, or shall cause its agent, as
promptly as practicable (and in any event within one Business Day) after its
receipt of such dividend or distribution (unless otherwise prohibited or
prevented by law), subject to the provisions of Section 4.05, to convert such
dividend or distribution into Dollars and shall, as promptly as practicable,
distribute the amount thus received (net of the expenses of the Depositary as
provided in Section 5.09) to the Owners entitled thereto, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively;
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provided, however, that in the event that the Company or the Depositary shall be
required to withhold and does withhold from such cash dividend or such other
cash distribution an amount on account of taxes, the amount distributed to the
Owner of the Receipts evidencing American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amounts as can be distributed without distributing to any
Owner a fraction of one cent and any balance that is not so distributed shall be
held by the Depositary (without liability for the interest thereon) and shall be
added to and be part of the next sum received by the Depositary for distribution
to the Owners of Receipts then outstanding. The Company or its agent will remit
to the appropriate governmental agency in Brazil all amounts withheld and owing
to such agency. The Depositary will forward to the Company or its agent in a
timely manner such information from its records as the Company may reasonably
request to enable the Company or its agent to file necessary reports with
governmental agencies, and the Depositary or the Company or its agent may file
any such reports necessary to obtain benefits under the applicable tax treaties
for the Owners.
SECTION 4.02. Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and 5.09, whenever the Depositary
shall receive any distribution other than a distribution described in Sections
4.01, 4.03 or 4.04, the Depositary shall, as promptly as practicable, cause the
securities or property received by it to be distributed to the Owners entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Company or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act of 1933 in order to be distributed to Owners) the Depositary
deems such distribution not to be feasible, the Depositary may, after
consultation with the Company, adopt such method as it may deem equitable and
practicable for the purpose of effecting such distribution, including, but not
limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of any such sale (net of the
fees of the Depositary as provided in Section 5.09 and any expenses in
connection with such sale) shall be distributed by the Depositary to
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the Owners entitled thereto as in the case of a distribution received in cash
pursuant to Section 4.01; provided, however, no distribution to Owners pursuant
to this Section 4.02 shall be unreasonably delayed by any action of the
Depositary or any of its agents.
SECTION 4.03. Distributions in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Depositary may or shall, if the Company shall so request, distribute, as
promptly as practicable, to the Owners of outstanding Receipts entitled thereto,
in proportion to the number or American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts evidencing
an aggregate number of American Depositary Shares representing the amount of
Shares received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares and
the issuance of American Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in Section 4.11
and the payment of the fees of the Depositary as provided in Section 5.09. In
lieu of delivering Receipts for fractional American Depositary Shares in any
such case, the Depositary shall sell the amount of Shares represented by the
aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions described in Section 4.01; provided, however, no
distribution to Owners pursuant to this Section 4.03 shall be unreasonably
delayed by any action of the Depositary or any or its agents. If additional
Receipts are not so distributed, each American Depositary Share shall
thenceforth also represent additional Shares distributed upon the Deposited
Securities represented thereby. In addition, the Depositary may withhold any
distribution of Receipts under this Section 4.03 if it has not received
satisfactory assurances from the Company that such distribution does not require
registration under the Securities Act or is exempt from registration under the
provisions of such Act; provided that, in any such event, the Depositary may
sell the Shares distributed upon the Deposited Securities and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.01.
SECTION 4.04. Rights. In the event that the Company shall offer or
cause to be offered to the holders of any Deposited Securities any rights to
subscribe for additional Shares or any rights of any other nature, the
Depositary, after consultation with the Company, shall have discretion as to the
procedure to be followed in making such rights available to any Owners or in
disposing of such
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rights on behalf or any Owners and making the net proceeds available to such
Owners or, if by the terms of such rights offering or for any other reason it
would be unlawful for the Depositary either to make such rights available to any
Owners or dispose of such rights and make the net proceeds available to such
Owners, then the Depositary shall allow the rights to lapse. If at the time of
the offering of any rights the Depositary determines in its discretion that it
is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may, and at the request of the Company
shall, distribute to any Owner to whom it determines the distribution to be
lawful and feasible, in proportion to the number of American Depositary Shares
held by such Owner, warrants or other instruments therefor in such form as it
deems appropriate.
In circumstances in which rights would otherwise not be distributed,
if an Owner requests the distribution of warrants or other instruments in order
to exercise the rights allocable to the American Depositary Shares of such Owner
hereunder, the Depositary will promptly make such rights available to such Owner
upon written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of this Deposit Agreement, and shall, pursuant to Section 2.03 of
this Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to this paragraph, such Receipts shall be legended in
accordance with applicable U.S. laws, and shall be subject to the appropriate
restrictions on sale, deposit, cancellation, and transfer under such laws.
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If the Depositary determines that it is not lawful or feasible to
make such rights available to all or certain Owners, it may, and at the request
of the Company will use its best efforts that are reasonable under the
circumstances to, sell the rights, warrants or other instruments in proportion
to the number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees of the Depositary as
provided in Section 5.09, any expenses in connection with such sale and all
taxes and governmental charges payable in connection with such rights and
subject to the terms and conditions of this Deposit Agreement) for the account
of such Owners otherwise entitled to such rights, warrants or other instruments,
upon an averaged or other practical basis without regard to any distinctions
among such Owners because of exchange restrictions or the date of delivery of
any Receipt or otherwise. Such proceeds shall be distributed as promptly as
practicable in accordance with Section 4.01 hereof.
If a registration statement under the Securities Act of 1933 is
required with respect to the securities to which any rights relate in order for
the Company to offer such rights to Owners and sell the securities represented
by such rights, the Depositary will not offer such rights to Owners having an
address in the United States (as defined in Regulation S) unless and until such
a registration statement is in effect, or unless the offering and sale of such
securities and such rights to such Owners are exempt from registration under the
provisions of such Act.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
SECTION 4.05. Conversion of Foreign Currency. Whenever the
Depositary or the Custodian shall receive Foreign Currency, by way of dividends
or other distributions or the net proceeds from the sale of securities, property
or rights, and if at the time of the receipt thereof the Foreign Currency so
received can, pursuant to applicable law, be converted on a reasonable basis
into Dollars and the resulting Dollars transferred to the United States, the
Depositary or the Custodian shall convert or cause to be converted as promptly
as practicable (and in any event within one Business Day of its or its agent's
receipt of such Foreign Currency), by sale or in any other manner that it may
determine in accordance with applicable law, such Foreign Currency into Dollars.
If, at the time of
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conversion of such Foreign Currency into Dollars, such Dollars can, pursuant to
applicable law, be transferred outside of Brazil for distribution to Owners
entitled thereto, such Dollars shall be distributed as promptly as practicable
to the Owners entitled thereto or, if the Depositary shall have distributed any
rights, warrants or other instruments which entitle the holders thereof to such
Dollars, then to the holders of such rights, warrants and/or instruments upon
surrender thereof for cancellation. Such distribution or conversion may be made
upon an averaged or other practicable basis without regard to any distinctions
among Owners on account of exchange restrictions, the date of delivery of any
Receipt or otherwise and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.09.
If such conversion, transfer or distribution can be effected only
with the approval or license of any government or agency thereof, the Depositary
shall file as promptly as practicable such application for approval or license;
however, the Depositary shall be entitled to rely upon Brazilian local counsel
in such matters, which counsel shall be instructed to act as promptly as
possible.
If at any time Foreign Currency received by the Depositary or the
Custodian is not, pursuant to applicable law, convertible, in whole or in part,
into Dollars, or if any approval or license of any government or agency thereof
which is required for such conversion is denied or in the opinion of the
Depositary cannot be promptly obtained, the Depositary shall, (a) as to that
portion of the Foreign Currency that is convertible into Dollars, make such
conversion and, if permitted by applicable law, transfer such Dollars to the
United States for distribution to Owners in accordance with the first paragraph
of this Section 4.05 or, if such transfer is not so permitted, hold such Dollars
uninvested and without liability for interest thereon for the respective
accounts of the Owners entitled to receive the same, and (b) as to the
nonconvertible balance, if any, (i) if requested in writing by an Owner,
distribute or cause the Custodian to distribute the Foreign Currency (or an
appropriate document evidencing the right to receive such Foreign Currency)
received by the Depositary or Custodian to such Owner and (ii) the Depositary
shall hold or shall cause the Custodian to hold any amounts of nonconvertible
Foreign Currency not distributed pursuant to the immediate preceding subclause
(i) uninvested and without liability for interest thereon for the respective
accounts of the Owners entitled to receive the same.
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SECTION 4.06. Fixing of Record Date. Whenever any cash dividend or
other cash distribution shall become payable or any distribution other than cash
shall be made, or whenever rights shall be issued with respect to the Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall receive notice of any meeting of holders of Shares
or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient, the Depositary shall fix a record date, which date
shall, to the extent practicable, be either (x) the same date as the record date
fixed by the Company, or (y) if different from the record date fixed by the
Company, be fixed after consultation with the Company (a) for the determination
of the Owners who shall be (i) entitled to receive such dividend, distribution
or rights or the net proceeds of the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights at any such meeting, or (b) on or
after which each American Depositary Share will represent the changed number of
Shares. Subject to the provisions of Sections 4.01 through 4.05 and to the other
terms and conditions of this Deposit Agreement, the Owners on such record date
shall be entitled, as the case may be, to receive the amount distributable by
the Depositary with respect to such dividend or other distribution or such
rights or the net proceeds of sale thereof in proportion to the number of
American Depositary Shares held by them respectively and to give voting
instructions and to act in respect of any other such matter. The Company agrees
to provide the Depositary with 10 days' prior notice of any meeting of
shareholders or of the Board of Directors of the Company, the agenda for which
includes authorization for the declaration of a dividend; provided, however,
that if the date for any such meeting is fixed less than 10 days prior to such
meeting or the Company does not know, 10 days prior to such meeting, that a
dividend may be declared at any such meeting, then the Company shall give such
notice to the Depositary as promptly as practicable after such date is fixed or
the Company learns that a dividend may be declared.
SECTION 4.07. Voting of Deposited Securities. At any time that the
Depositary has the right to vote the Shares represented by the American
Depositary Shares, the Depositary will comply with the following provisions.
As soon as practicable after receipt of notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, if requested in writing by the Company, the Depositary shall, as
soon as practicable thereafter, mail to the Owners a
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notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting or if requested by the Company a summary of such information
provided by the Company), (b) a statement that the Owners as of the close of
business on a specified record date will be entitled, subject to any applicable
provision of Brazilian law and of the Charter of the Company, to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
amount of Shares or other Deposited Securities represented by their respective
American Depositary Shares and (c) a statement as to the manner in which such
instructions may be given, including an express indication that instructions may
be given or deemed given in accordance with the last sentence of this paragraph
if no instruction is received, to the Depositary to give a discretionary proxy
to a person designated by the Company. Upon the written request of an Owner on
such record date, received on or before the date established by the Depositary
for such purpose, the Depositary shall endeavor, in so far as practicable, to
vote or cause to be voted the amount of Shares or other Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. The Depositary shall
not itself exercise any voting discretion over any Deposited Securities. If no
instructions are received by the Depositary from any Owner with respect to any
of the Deposited Securities represented by the American Depositary Shares
evidenced by such Owner's Receipts on or before the date established by the
Depositary for such purpose, the Depositary shall deem such Owner to have
instructed the Depositary to give a discretionary proxy to a person designated
by the Company with respect to such Deposited Securities and the Depositary
shall give a discretionary proxy to a person designated by the Company to vote
such Deposited Securities, provided that no such instruction shall be deemed
given and no such discretionary proxy shall be given with respect to any matter
as to which the Company informs the Depositary (and the Company agrees to
provide such information as promptly as practicable in writing) that (x) the
Company does not wish such proxy given, (y) substantial opposition exists or (z)
such matter materially and adversely affects the rights of holders of Shares.
Subject to the rules of any securities exchange on which American
Depositary Shares or the Deposited Securities represented thereby are listed,
the Depositary shall if requested by the Company deliver, at least two Business
Days prior to the date of such meeting, to the Company, to the attention of its
Secretary, copies of all instructions
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received from Owners in accordance with which the Depositary will vote, or cause
to be voted, the Deposited Securities represented by the American Depositary
Shares evidenced by such Receipts at such meeting. Delivery or instructions will
be made at the expense of the Company (unless otherwise agreed in writing by the
Company and the Depositary) provided that payment of such expense shall not be a
condition precedent to the obligations or the Depositary under this Section.
SECTION 4.08. Changes Affecting Deposited Securities. In
circumstances where the provisions of Section 4.03 do not apply, upon any change
in nominal value, change in par value, split-up, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent
the new Deposited Securities so received in exchange or conversion, unless
additional Receipts are delivered pursuant to the following sentence. In any
such case the Depositary may, and shall if the Company shall so request, execute
and deliver additional Receipts as in the case of a dividend in Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
SECTION 4.09. Reports. The Depositary shall make available for
inspection by Owners at its Corporate Trust Office any reports and
communications, including any proxy soliciting material, received from the
Company which are both (a) received by the Depositary as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary shall also send to the
Owners copies of such reports when furnished by the Company pursuant to Section
5.06. Any such reports and communications, including any such proxy soliciting
material, furnished to the Depositary by the Company shall be furnished in
English, to the extent such materials are required to be translated into English
pursuant to any regulations of the Commission. The Company agrees to provide to
the Depositary, at the Company's expense (unless otherwise agreed in writing by
the Company and the Depositary), all documents that it provides to the
Custodian.
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In the event the Receipts are listed or quoted on a national
securities exchange in the United States, the Company will promptly transmit to
the Custodian English language versions of any reports and other communications
that are made generally available by the Company to holders of its Shares or
other Deposited Securities and the Depositary will, at the Company's expense
(unless otherwise agreed in writing by the Company and the Depositary), arrange
for the prompt transmittal by the Custodian to the Depositary of such notices,
reports and other communications and arrange for the mailing, at the Company's
expense (unless otherwise agreed in writing by the Company and the Depositary),
of copies thereof (or if requested by the Company, a summary of any such notice
provided by the Company) to all Owners or, at the request of the Company, make
such notices, reports and other communications available to all Owners on a
basis similar to that for holders of Shares or other Deposited Securities, or on
such other basis as the Company may advise the Depositary may be required by any
applicable law, regulation or stock exchange requirement. The Company has
delivered to the Depositary and the Custodian a copy of the provisions of or
governing the Shares and any other Deposited Securities issued by the Company or
any affiliate of the Company, and promptly upon any amendment thereto or change
therein, the Company shall deliver to the Depositary and the Custodian a copy of
such provisions as so amended or changed. The Depositary may rely upon such copy
for all purposes of this Deposit Agreement. The Depositary will, at the expense
of the Company (unless otherwise agreed in writing by the Company and the
Depositary), make such copy and such notices, reports and other communications
available for inspection by Owners at the Depositary's office, at the office of
the Custodian and at any other designated transfer offices.
SECTION 4.10. Lists of Owners. Promptly upon request by the Company,
the Depositary shall, at the expense of the Company (unless otherwise agreed in
writing by the Company and the Depositary), furnish to it a list, as of a recent
date, of the names, addresses and holdings of American Depositary Shares by all
persons in whose names Receipts are registered on the books of the Depositary.
SECTION 4.11. Withholding. In connection with any distribution to
Owners, the Company will remit to the appropriate governmental authority or
agency all amounts (if any) required to be withheld by the Company and owing to
such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required to be withheld and owing to such authority or agency by the
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Depositary or the Custodian. In the event that the Depositary determines that
any distribution in property other than cash (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charge which the
Depositary is obligated to withhold, the Depositary may by public or private
sale dispose of all or a portion of such property (including Shares and rights
to subscribe therefor) in such amounts and in such manner as the Depositary
deems necessary and practicable to pay any such taxes or charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Owners entitled thereto in proportion to the number
of American Depositary Shares held by them respectively, all in accordance with
applicable provisions of this Deposit Agreement.
ARTICLE 5
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the
Depositary. Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers, combinations and split-ups and surrender of Receipts in accordance
with the provisions of this Deposit Agreement.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners, provided that such inspection shall not be for the purpose of
communicating with Owners for an object other than the business of the Company,
including without limitation a matter related to this Deposit Agreement or the
Receipts.
The Depositary may close the transfer books after consultation with
the Company to the extent practicable, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder or at the request of the Company, provided that any such closing of
the transfer books shall be subject to the provisions of Section 2.06 which
limit the suspension or withdrawals of Shares.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges in the United States, the Depositary
shall act as Registrar or, with the written approval of the Company, appoint a
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Registrar or one or more co-registrars for registry of such Receipts in
accordance with any requirements of such exchange or exchanges.
The Company shall have the right, upon reasonable request, to
inspect the transfer and registration records of the Depositary relating to the
Receipts, to take copies thereof and to require the Depositary and any
co-registrars to supply copies of such portions of such records as the Company
may request.
SECTION 5.02. Prevention or Delay in Performance by the Depositary
or the Company. Neither the Depositary nor the Company nor any of their
respective directors, employees, agents or affiliates shall incur any liability
to any Owner or Beneficial Owner, if by reason of any provision of any present
or future law or regulation of the United States or any other country, or of any
governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the Charter of the Company, or by reason of any
act of God or war or other circumstance beyond its control, the Depositary or
the Company shall be prevented or forbidden from, or be subject to any civil or
criminal penalty on account of, doing or performing any act or thing which by
the terms of this Deposit Agreement it is provided shall be done or performed;
nor shall the Depositary or the Company nor any of their respective directors,
employees, agents or affiliates incur any liability to any Owner or Beneficial
Owner by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms or this Deposit Agreement it
is provided shall or may be done or performed, or by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement.
Where, by the terms of a distribution pursuant to Sections 4.01, 4.02, or 4.03
of the Deposit Agreement, or an offering or distribution pursuant to Section
4.04 of the Deposit Agreement, or for any other reason, the Depositary is
prevented or prohibited from making such distribution or offering available to
Owners, and the Depositary is prevented or prohibited from disposing of such
distribution or offering on behalf of such Owners and making the net proceeds
available to such Owners, then the Depositary, after consultation with the
Company, shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
SECTION 5.03. Obligations of the Depositary, the Custodian and the
Company. The Company assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Owners or Beneficial Owners, except
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that it agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or any other person believed by it in good faith to be competent to give such
advice or information.
The Depositary shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
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The Depositary, subject to Sections 2.05 and 2.09 hereof, may own
and deal in any class of securities of the Company and its affiliates and in
Receipts.
SECTION 5.04. Resignation and Removal of the Depositary. The
Depositary may at any time resign as Depositary hereunder by written notice of
its election so to do delivered to the Company, such resignation to take effect
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by written
notice of such removal effective upon the appointment of a successor depositary
and its acceptance or such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall use its best efforts that are reasonable under the
circumstances to appoint a successor depositary, which shall be a bank or trust
company having an office in the Borough of Manhattan, The City of New York.
Every successor depositary shall execute and deliver to its predecessor and to
the Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor; but such predecessor, nevertheless, upon payment of all sums due it
and on the written request of the Company shall execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title
and interest in the Deposited Securities to such successor, and shall deliver to
such successor a list of the Owners of all outstanding Receipts. Any such
successor depositary shall promptly mail notice of its appointment to the
Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.05. The Custodian. The Custodian shall be subject at all
times and in all respects to the directions of the Depositary and shall be
responsible solely to it and the Depositary shall be responsible for the
compliance by the Custodian with the applicable provisions of this Deposit
Agreement. Any Custodian may resign from its duties hereunder by notice of such
resignation delivered to the Depositary at least 30 days prior to the date on
which such resignation is to become effective. If upon such
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resignation there shall be no Custodian acting hereunder, the Depositary shall,
promptly after receiving such notice, appoint a substitute custodian or
custodians approved by the Company (such approval not to be unreasonably
withheld), each of which shall thereafter be a Custodian hereunder. The
Depositary may discharge any Custodian at any time upon notice to the Custodian
being discharged with the approval of the Company (such approval not to be
unreasonably withheld). Whenever the Depositary in its discretion determines
that it is in the best interest of the Owners to do so, it may appoint
substitute or additional custodian or custodians, which shall thereafter be one
of the Custodians hereunder. The Depositary shall notify the Company of the
appointment of a substitute or additional Custodian at least 30 days prior to
the date on which such appointment is to become effective. Upon demand of the
Depositary any Custodian shall deliver such of the Deposited Securities held by
it as are requested of it to any other Custodian or such substitute or
additional custodian or custodians. Each such substitute or additional custodian
shall deliver to the Depositary, forthwith upon its appointment, an acceptance
of such appointment satisfactory in form and substance to the Depositary.
Promptly after any such change, the Depositary shall give notice thereof in
writing to all Owners.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of each
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.06. Notices and Reports. On or before the first date on
which the Company gives notice, by publication or otherwise, of any meeting of
holders of Shares or other Deposited Securities, or of any adjourned meeting of
such holders, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights, the Company agrees to transmit to
the Depositary and the Custodian a copy of the notice thereof in the form given
or to be given to holders of Shares or other Deposited Securities.
The Company will arrange for the translation into English, if not
already in English, to the extent required pursuant to any regulations of the
Commission, and the
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prompt transmittal by the Company to the Depositary and the Custodian of such
notices and any other reports and communications which are made generally
available by the Company to holders of its Shares. If requested in writing by
the Company, the Depositary will arrange for the mailing, as promptly as
practicable and at the Company's expense (unless otherwise agreed in writing by
the Company and the Depositary), of copies of such notices, reports and
communications to all Owners. The Company will timely provide the Depositary
with the quantity of such notices, reports, and communications, as requested by
the Depositary from time to time, in order for the Depositary to effect such
mailings.
SECTION 5.07. Distribution of Additional Shares, Rights, etc. The
Company agrees that in the event of any issuance or distribution of (1)
additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into or exchangeable for Shares, or (4) rights to subscribe for such
securities, the Company will take all steps reasonably necessary to ensure that
no violation by the Company or the Depositary of the Securities Act of 1933 will
result from such issuance or distribution.
The Company agrees with the Depositary that neither the Company nor
any company controlled by the Company will at any time deposit any Shares,
either originally issued or previously issued and reacquired by the Company or
any such affiliate, unless a Registration Statement is in effect as to such
Shares under the Securities Act of 1933 or the Company furnishes to the
Depositary a written opinion from U.S. counsel for the Company, which counsel
shall be reasonably satisfactory to the Depositary, stating that the offer and
sale of the Receipts evidencing the American Depositary Shares representing such
Shares are exempt from registration under that Act. The Company will advise each
person who, to the best knowledge of the Company, controls, or is under common
control with, the Company that such person is subject to the same restrictions
on the deposit of Shares as the Company and persons controlled by the Company.
SECTION 5.08. Indemnification. The Company agrees to indemnify the
Depositary, its directors, employees, agents and affiliates and any Custodian
against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted, in accordance with the
provisions of this Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time,
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(i) by either the Depositary or a Custodian or their respective directors,
employees, agents and affiliates, except for any liability or expense arising
out the negligence or bad faith of either of them, and except to the extent that
such liability or expense arises out of information relating to the Depositary
or the Custodian, as applicable, furnished in writing to the Company by the
Depositary or the Custodian, as applicable, expressly for use in any
registration statement, proxy statement, prospectus (or placement memorandum) or
preliminary prospectus (or preliminary placement memorandum) relating to the
Shares, or omissions from such information; or (ii) by the Company or any of its
directors, employees, agents and affiliates. The indemnities contained in this
paragraph shall not extend to any liability or expense which may arise out of
any Pre-Release.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
The obligations set forth in this Section 5.08 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
Any person seeking indemnification hereunder (an "Indemnified
Person") shall notify the person from whom it is seeking indemnification (the
"Indemnifying Person") of the commencement of any indemnifiable action or claim
promptly after such Indemnified Person becomes aware of such commencement and
shall consult in good faith with the Indemnifying Person as to the conduct of
the defense of such action or claim, which defense shall be reasonable under the
circumstances. No Indemnified Person shall compromise or settle any such action
or claim without the consent in writing of the Indemnifying Person.
SECTION 5.09. Charges of Depositary. The Company agrees to pay the
fees and reasonable out-of-pocket expenses of the Depositary and those of any
Registrar only in accordance with agreements in writing entered into between the
Depositary and the Company from time to time. The Depositary shall present
detailed statements for such expenses to the Company at least once every three
months. The charges and expenses of the Custodian are for the sole account of
the Depositary.
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The following charges (to the extent permitted by applicable law or
the rules of any securities exchange on which the American Depositary Shares are
admitted for trading) shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or stock
split declared by the Company or an exchange of stock regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.03),
whichever applicable: (1) taxes and other governmental charges, (2) such
registration fees as may from time to time be in effect for the registration of
transfers of Shares generally on the Share register of the Company or Foreign
Registrar and applicable to transfers of Shares to the name of the Depositary or
its nominee or the Custodian or its nominee on the making of deposits or
withdrawals hereunder, (3) such cable, telex and facsimile transmission expenses
as are expressly provided in this Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.05, (5) a fee not in excess of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Sections 2.03 or 4.03 and the surrender of Receipts
pursuant to Section 2.05 and (6) a fee for the distribution of proceeds of sales
of securities or rights pursuant to Section 4.02 or 4.04, respectively, such fee
(which may be deducted from such proceeds) being in an amount equal to the
lesser of (i) the fee for the issuance of American Depositary Shares referred to
above which would have been charged as a result of the deposit by Owners of
securities (for purposes of this clause 6 treating all such securities as if
they were Shares) or Shares received in exercise of rights distributed to them
pursuant to Section 4.02 or 4.04, respectively, but which securities or rights
are instead sold by the Depositary and the net proceeds distributed and (ii) the
amount of such proceeds.
SECTION 5.10. Exclusivity. The Company agrees not to appoint any
other depositary for issuance of American Depositary Receipts so long as The
Bank of New York is acting as Depositary hereunder, subject, however, to the
rights of the Company under Section 5.04.
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ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable. Any amendment which shall impose or increase any
fees or charges (other than taxes and other governmental charges, registration
fees, cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or which shall otherwise prejudice any substantial existing right of
Owners, shall, however, not become effective as to outstanding Receipts until
the expiration of thirty days after notice of such amendment shall have been
given to the Owners of outstanding Receipts. Every Owner at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the Owner of any Receipt to surrender such Receipt and receive therefor the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
SECTION 6.02. Termination. The Depositary shall at any time, at the
direction of the Company, terminate this Deposit Agreement by mailing notice of
such termination to the Owners of all Receipts then outstanding at least 30 days
prior to the date fixed in such notice for such termination. The Depositary may
likewise terminate this Deposit Agreement by mailing notice of such termination
to the Company and Owners of all Receipts then outstanding, such termination to
be effective on a date specified in such notice not less than 30 days after the
date thereof, if at any time 60 days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04. On and after the date of termination,
the Owner of a Receipt will, upon (a) surrender of such Receipt at the Corporate
Trust Office of the Depositary, (b) payment of the fee of the Depositary for the
surrender of Receipts referred to in Section 2.05, and (c) payment of any
applicable taxes or governmental charges, be entitled to delivery, to the Owner
or upon the Owner's order, of the amount of Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt. If any Receipts shall
remain outstanding after the date of termination, the Depositary thereafter
shall discontinue the registration of transfers
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of Receipts, shall suspend the distribution of dividends to the Owners thereof,
and shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
rights as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account or the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of one year
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges) and except as provided in Section
5.08. Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed
in any number of counterparts, each of which shall be deemed an original and all
of such counterparts shall constitute one and the same instrument. Copies of
this Deposit Agreement shall be filed with the Depositary and the Custodian and
shall be open to inspection by any Owner during business hours.
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SECTION 7.02. No Third Party Beneficiaries. This Deposit Agreement
is for the exclusive benefit of the parties hereto and shall not be deemed to
give any legal or equitable right, remedy or claim whatsoever to any other
person.
SECTION 7.03. Severability. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Binding Effect on Owners and Beneficial Owners. The
Owners and Beneficial Owners shall be bound by all of the terms and conditions
of this Deposit Agreement and of the Receipts by acceptance thereof.
SECTION 7.05. Notices. Any and all notices to be given to the
Company shall be deemed to have been duly given if personally delivered or sent
by mail or cable, telex or facsimile transmission confirmed by letter, addressed
to
Tele Centro Sul Participacoes S.A.
SCN - Quadra CN2
Lote F - 2 Andar
Sala 202
Brasilia - DF, Brazil
Attention: _______________
or any other place to which the Company may have transferred its principal
office.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to The
Bank of New York, 101 Barclay Street, New York, New York 10286, Attention:
American Depositary Receipt Administration, or any other place to which the
Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices
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intended for such Owner be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box; provided, however, that delivery of a notice to the Company or the
Depositary shall be deemed to be effective when actually received by the Company
or the Depositary, as the case may be. The Depositary or the Company may,
however, act upon any cable, telex or facsimile transmission received by it,
notwithstanding that such cable, telex or facsimile transmission shall not
subsequently be confirmed by letter as aforesaid.
SECTION 7.06. Governing Law. This Deposit Agreement and the Receipts
shall be interpreted and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by the law of the State of New York.
SECTION 7.07. Headings. Headings contained herein are included for
convenience only and are not to be used in construing or interpreting any
provision hereof.
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IN WITNESS WHEREOF, TELE CENTRO SUL PARTICIPACOES S.A. and THE BANK
OF NEW YORK have duly executed this agreement as of the day and year first set
forth above and all Owners shall become parties hereto upon acceptance by them
of Receipts issued in accordance with the terms hereof.
TELE CENTRO SUL PARTICIPACOES S.A.
By: /s/ Daltron Jose R. de Magalhaes
--------------------------------
Daltron Jose R. de Magalhaes
President
By: /s/ Giorgio Bampi
--------------------------------
Giorgio Bampi
Director of Administration
and Investor Relations
THE BANK OF NEW YORK,
as Depositary
By: /s/ Hernand P. Rodrigues
--------------------------------
Hernand P. Rodrigues
Vice President
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Exhibit A
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share represents ________
deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR NON-VOTING PREFERRED STOCK
WITHOUT PAR VALUE OF
TELE CENTRO SUL PARTICIPACOES S.A.
(ORGANIZED UNDER THE LAWS OF THE FEDERATIVE REPUBLIC OF BRAZIL)
The Bank of New York, as depositary (hereinafter called the
"Depositary"), hereby certifies that____________________________________________
______________, or registered assigns IS THE OWNER OF __________________________
AMERICAN DEPOSITARY SHARES
representing deposited non-voting preferred stock (herein called "Shares") of
Tele Centro Sul Participacoes S.A., a sociedada anonima de economia mista (a
limited liability company) organized under the laws of The Federative Republic
of Brazil (herein called the "Company"). At the date hereof, each American
Depositary Share represents _________ Shares deposited or subject to deposit
under the Deposit Agreement (as such term is hereinafter defined) at the Sao
Paulo office of Banco Itau (herein called the "Custodian"). The Depositary's
Corporate Trust Office is located at a different address than its principal
executive office. Its Corporate Trust Office is located at 101 Barclay Street,
New York, N.Y. 10286, and its principal executive office is located at 48 Wall
Street, New York, N.Y. 10286.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
101 BARCLAY STREET, NEW YORK, N.Y. 10286
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of ___________ __, 1998 (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all Owners
and Beneficial Owners from
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time to time or Receipts issued thereunder, each of whom by accepting a Receipt
agrees to become a party thereto and become bound by all the terms and
conditions thereof. The Deposit Agreement sets forth the rights of Owners and
Beneficial Owners or the Receipts and the rights and duties of the Depositary in
respect of the Shares deposited thereunder and any and all other securities,
property and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property, and cash are herein called
"Deposited Securities"). Copies the Deposit Agreement are on file at the
Depositary's Corporate Trust Office in New York City and at the office of the
Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are qualified by
and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms defined in the Deposit Agreement and
not defined herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of
this Receipt for the purpose of withdrawal of the Deposited Securities
represented by the American Depositary Shares evidenced hereby, and upon payment
of the fee of the Depositary provided in this Receipt, and subject to the terms
and conditions of the Deposit Agreement, the Owner hereof is entitled to
delivery, to him or upon his order, of the Deposited Securities at the time
represented by the American Depositary Shares for which this Receipt is issued.
Delivery of such Deposited Securities may be made by (a) (i) the delivery of
certificates in the name of the Owner hereof or as ordered by him or
certificates properly endorsed or accompanied by proper instruments of transfer
to such Owner or as ordered by him, or (ii) book-entry transfer of the Shares
represented by this Receipt to an account in the name of such Owner or as
ordered by him, and (b) delivery of any other securities, property and cash to
which such Owner is then entitled in respect of this Receipt to such Owner or as
ordered by him. Such delivery will be made at the option of the Owner hereof,
either at the office of the Custodian or at the Corporate Trust Office of the
Depositary, as provided in the Deposit Agreement; provided that the forwarding
of certificates for Shares or other Deposited Securities for such delivery at
the Corporate Trust Office of the Depositary shall be at the risk and expense of
the Owner hereof.
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3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the
Depositary at its Corporate Trust Office by the Owner hereof in person or by a
duly authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt,
the delivery of any distribution thereon, or withdrawal of any Deposited
Securities, the Company, the Depositary, the Custodian, or Registrar may require
payment from the depositor of the Shares or the presentor of the Receipt of a
sum sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as provided in this Receipt, may require the
production of proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with such reasonable regulations the
Depositary may establish consistent with the provisions of the Deposit Agreement
or this Receipt, including, without limitation, this Article 3.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts, or the combination or split-up of Receipts generally
may be suspended, during any period when the transfer books of the Depositary
are closed, or if any such action is deemed necessary or advisable by the
Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of the Deposit Agreement or this Receipt, or for any other
reason, subject to the provisions of the following sentence. Notwithstanding any
other provision of the Deposit Agreement or this Receipt, the surrender of
outstanding Receipts and withdrawal of Deposited Securities may be suspended
only for (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Shares in
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connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities, or (iv) any other reason that may
at any time be specified in paragraph I(A)(1) of the General Instructions to
Form F-6, as from time to time in effect, or any successor provision thereto.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under the Deposit Agreement any Shares required to be registered
under the provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such Shares.
4. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any Receipt or any Deposited
Securities represented hereby, such tax or other governmental charge shall be
payable by the Owner or Beneficial Owner hereof to the Depositary. The
Depositary may refuse to effect any transfer of this Receipt or any combination
or split-up hereof or any withdrawal of Deposited Securities represented by
American Depositary Shares evidenced by such Receipt until such payment is made,
and may withhold any dividends or other distributions, or may sell for the
account of the Owner or Beneficial Owner hereof any part or all of the Deposited
Securities represented by the American Depositary Shares evidenced by this
Receipt, and may apply such dividends or other distributions or the proceeds of
any such sale in payment of such tax or other governmental charge (and any taxes
or expenses arising out of such sale), and the Owner or Beneficial Owner hereof
shall remain liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares hereunder and under the Deposit
Agreement shall be deemed thereby to represent and warrant that such Shares and
each certificate therefor are validly issued, fully paid, non-assessable, and
free of any preemptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent that (i) the Shares presented for deposit are not,
and the Receipts issuable upon such deposit will not be, restricted securities
within the meaning of Rule 144(a)(3) under the Securities Act of 1933, and (ii)
the deposit of such Shares and the sale of Receipts evidencing American
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Depositary Shares representing such Shares by that person are not otherwise
restricted under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner of a Receipt
may be required from time to time to file with the Depositary or the Custodian
such proof of citizenship or residence, exchange control approval, legal or
beneficial ownership of Receipts, Deposited Securities or other securities,
compliance with all applicable laws or regulations or terms of the Deposit
Agreement or such Receipt, or such information relating to the registration on
the books of the Company or the Foreign Registrar, if applicable, to execute
such certificates and to make such representations and warranties, as the
Depositary may deem necessary or proper. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed or such representations and warranties
made. The Depositary shall from time to time advise the Company of the
availability of any such proofs, certificates or other information and shall
provide copies thereof to the Company as promptly as practicable upon request by
the Company, unless such disclosure is prohibited by law.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees and reasonable out-of-pocket
expenses of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present detailed statement for such expenses
to the Company at least once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges (to the extent permitted by applicable law or
the rules of any securities exchange on which the American Depositary Shares are
admitted for trading) shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or stock
split declared by the Company or an exchange of stock regarding
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the Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03 of the Deposit Agreement), whichever applicable: (1) taxes and
other governmental charges, (2) such registration fees as may from time to time
be in effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers of
Shares to the name of the Depositary or its nominee or the Custodian or its
nominee on the making of deposits or withdrawals under the terms of the Deposit
Agreement, (3) such cable, telex and facsimile transmission expenses as are
expressly provided in the Deposit Agreement, (4) such expenses as are incurred
by the Depositary in the conversion of foreign currency pursuant to Section 4.05
of the Deposit Agreement, (5) a fee not in excess of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the execution and delivery
of Receipts pursuant to Sections 2.03 or 4.03 of the Deposit Agreement and the
surrender of Receipts pursuant to Section 2.05 of the Deposit Agreement and (6)
a fee for the distribution of proceeds of sales of securities or rights pursuant
to Sections 4.02 or 4.04, respectively, of the Deposit Agreement, such fee
(which may be deducted from such proceeds) being in an amount equal to the
lesser of (i) the fee for the issuance of American Depositary Shares referred to
above which would have been charged as a result of the deposit by Owners of
securities (for purposes of this clause 6 treating all such securities as if
they were Shares) or Shares received in exercise of rights distributed to them
pursuant to Sections 4.02 or 4.04, respectively, but which securities or rights
are instead sold by the Depositary and the net proceeds distributed and (ii) the
amount of such proceeds.
The Depositary, subject to Article 8 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
Neither the Depositary nor the Custodian shall deliver Shares, by
physical delivery, book entry or otherwise (other than to the Company or its
agent as contemplated by Section 4.08 of the Deposit Agreement), or otherwise
permit Shares to be withdrawn from the facility created hereby, except upon the
receipt and cancellation of Receipts.
The Depositary may issue Receipts against rights to receive Shares
from the Company (or any agent of the Company recording Share ownership). No
such issue of
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Receipts will be deemed a "Pre-Release" subject to the restrictions of the
following paragraph.
In its capacity as Depositary, the Depositary will not deliver
Shares held under the Deposit Agreement prior to the receipt and cancellation by
the Depositary of Receipts. The Depositary may execute and deliver Receipts
prior to the receipt of Shares pursuant to Section 2.02 of the Deposit Agreement
("Pre-Release"). The Depositary may, pursuant to Section 2.05 of the Deposit
Agreement, deliver Shares upon the receipt and cancellation of Receipts which
have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such Receipt has
been Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation and agreement from the person to whom
Receipts or Shares are to be delivered (the "Pre-Releasee") that the
Pre-Releasee, or its customer, (i) owns the Shares or Receipts to be remitted,
as the case may be, (ii) assigns all beneficial right, title and interest in
such Shares or Receipts, as the case may be, to the Depositary for the benefit
of the Owners, and (iii) agrees in effect to hold such Shares or Receipts, as
the case may be, for the account of the Depositary until delivery of the same
upon the Depositary's request, (b) at all times fully collateralized with cash
or U.S. government securities, (c) terminable by the Depositary on not more than
five (5) business days notice, and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of Pre-Releases
will not normally exceed thirty percent (30%) of the American Depositary Shares
outstanding (without giving effect to American Depositary Shares evidenced by
Receipts outstanding as a result of Pre-Releases); provided, however, that the
Depositary reserves the right to disregard such limit from time to time as it
deems appropriate and may, with the prior written consent of the Company, change
such limit for purposes of general application. The Depositary will also set
limits with respect to the number of Pre-Released Receipts involved in
transactions to be done hereunder with any one person on a case by case basis as
it deems appropriate. The collateral referred to in clause (b) above shall be
held by the Depositary for the benefit of the Owners as security for the
performance of the obligations to deliver Shares or Receipts set forth in clause
(a) above (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
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The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt, and every successive holder and
Owner of this Receipt by accepting or holding the same consents and agrees, that
title to this Receipt when properly endorsed or accompanied by proper
instruments of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument, provided, however, that the Depositary and
the Company, notwithstanding any notice to the contrary, may treat the person in
whose name this Receipt is registered on the books of the Depositary as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement or for all other purposes.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however, that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are counter-signed by the manual signature of a duly authorized
officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange
Commission (hereinafter called the "Commission") with certain public reports and
documents required by foreign law or otherwise under Rule 12g3-2(b) under the
Securities Exchange Act of 1934. Such reports and communications will be
available for inspection and copying by Beneficial Owners and Owners at the
public reference facilities maintained by the Commission located at 450 Fifth
Street, N.W., Washington, D.C. 20549.
The Depositary will make available for inspection by Owners of
Receipts at its Corporate Trust Office any reports and communications, including
any proxy soliciting material, received from the Company which are both (a)
received by the Depositary as the holder of the Deposited Securities and (b)
made generally available to the
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holders of such Deposited Securities by the Company. The Depositary will also
send to Owners of Receipts copies of such reports when furnished by the Company
pursuant to the Deposit Agreement. Any such reports and communications,
including any such proxy soliciting material, furnished to the Depositary by the
Company shall be furnished in English to the extent such materials are required
to be translated into English pursuant to any regulations of the Commission. The
Company agrees to provide to the Depositary, at the Company's expense (unless
otherwise agreed in writing by the Company and the Depositary), all documents
that it provides to the Custodian.
In the event the Receipts are listed or quoted on a national
securities exchange in the United States, the Company will promptly transmit to
the Custodian English language versions of any reports and other communications
that are made generally available by the Company to holders of its Shares or
other Deposited Securities and the Depositary will, at the Company's expense
(unless otherwise agreed in writing by the Company and the Depositary), arrange
for the prompt transmittal by the Custodian to the Depositary of such notices,
reports and other communications and arrange for the mailing, at the Company's
expense (unless otherwise agreed in writing by the Company and the Depositary),
of copies thereof (or if requested by the Company, a summary of any such notice
provided by the Company) to all Owners or, at the request of the Company, make
such notices, reports and other communications available to all Owners on a
basis similar to that for holders of Shares or other Deposited Securities, or on
such other basis as the Company may advise the Depositary may be required by any
applicable law, regulation or stock exchange requirement. The Company has
delivered to the Depositary and the Custodian a copy of the provisions of or
governing the Shares and any other Deposited Securities issued by the Company or
any affiliate of the Company, and promptly upon any amendment thereto or change
therein, the Company shall deliver to the Depositary and the Custodian a copy of
such provisions as so amended or changed. The Depositary may rely upon such copy
for all purposes of this Deposit Agreement. The Depositary will, at the expense
of the Company (unless otherwise agreed in writing by the Company and the
Depositary), make such copy and such notices, reports and other communications
available for inspection by Owners at the Depositary's office, at the office of
the Custodian and at any other designated transfer offices.
The Depositary will keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners
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of Receipts provided that such inspection shall not be for the purpose of
communicating with Owners of Receipts for an object other than the business of
the Company, including, without limitation, a matter related to the Deposit
Agreement or the Receipts.
The Depositary may close the transfer books after consultation with
the Company to the extent practicable, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties under
the Deposit Agreement or at the request of the Company, provided that any such
closing of the transfer books shall be subject to the provisions of Section 2.06
of the Deposit Agreement which limit the suspension of withdrawals of Shares.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary or on its behalf, its agent, receives any
cash dividend or other cash distribution on any Deposited Securities, the
Depositary will, if at the time of receipt thereof any amounts received in a
foreign currency can in the judgment of the Depositary be converted on a
reasonable basis into United States dollars transferable to the United States,
and subject to the Deposit Agreement, convert or will cause its agent to
convert, as promptly as practicable (and in any event within one Business Day)
after its receipt of such dividend or distribution (unless otherwise prohibited
or prevented by law), such dividend or distribution into dollars and will, as
promptly as practicable, distribute the amount thus received (net of the
expenses of the Depositary as provided in Article 7 hereof and Section 5.09 of
the Deposit Agreement) to the Owners of Receipts entitled thereto, provided,
however, that in the event that the Company or the Depositary is required to
withhold and does withhold from such cash dividend or other cash distribution in
respect of any Deposited Securities an amount on account of taxes, the amount
distributed to the Owners of the Receipts evidencing American Depositary Shares
representing such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Section 4.11 and 5.09 or the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Sections 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary will, as promptly as practicable, cause the securities or
property received by it to be distributed to the Owners of Receipts entitled
thereto, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution; provided, however, that if in the opinion
of the Depositary such distribution cannot be
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made proportionately among the Owners of Receipts entitle thereto, or if for any
other reason the Depositary deems such distribution not to be feasible, the
Depositary may, after consultation with the Company, adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees of the Depositary as provided in Article 7 hereof and
Section 5.09 of the Deposit Agreement and any expenses in connection with such
sale) shall be distributed by the Depositary to the Owners of Receipts entitled
thereto as in the case of a distribution received in cash, all in the manner and
subject to the conditions set forth in the Deposit Agreement.
If any distribution consists of a dividend in, or free distribution
of, Shares, the Depositary may or shall, if the Company shall so request,
distribute, as promptly as practicable, to the Owners of outstanding Receipts
entitled thereto, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend or
free distribution subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement and the
payment of the fees of the Depositary as provided in Article 7 hereof and
Section 5.09 of the Deposit Agreement. In lieu of delivering Receipts for
fractional American Depositary Shares in any such case, the Depositary will sell
the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions set
forth in the Deposit Agreement. If additional Receipts are not so distributed,
each American Depositary Share shall thenceforth also represent the additional
Shares distributed upon the Deposited Securities represented thereby. In
addition, the Depositary may withhold any distribution of Receipts under this
paragraph and Section 4.03 of the Deposit Agreement if it has not received
satisfactory assurances from the Company that such distribution does not require
registration under the Securities Act or is exempt from registration under the
provisions of such Act; provided that, in any such event, the Depositary may
sell the Shares distributed upon the Deposited Securities and distribute the net
proceeds, all in the manner and subject to the conditions described in this
Article and Section 4.01 of the Deposit Agreement.
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In the event that the Depositary determines that any distribution in
property other than cash (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charge which the Depositary is
obligated to withhold, the Depositary may by public or private sale dispose of
all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner as the Depositary deems necessary
and practicable to pay any such taxes or charges, and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes or
charges to the Owners of Receipts entitled thereto.
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason it would be
unlawful for the Depositary either to make such rights available to any Owners
or to dispose of such rights and make the net proceeds available to such Owners,
then the Depositary shall allow the rights to lapse. If at the time of the
offering of any rights the Depositary determines in its discretion that it is
lawful and feasible to make such rights available to all or certain Owners but
not to other Owners, the Depositary may, and at the request of the Company
shall, distribute to any Owner to whom it determines the distribution to be
lawful and feasible, in proportion to the number of American Depositary Shares
held by such Owner, warrants or other instruments therefor in such form as it
deems appropriate.
In circumstances in which rights would otherwise not be distributed,
if an Owner requests the distribution of warrants or other instruments in order
to exercise the rights allocable to the American Depositary Shares or such Owner
hereunder, the Depositary will promptly make such rights available to such Owner
upon written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
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If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such
Owners to exercise such rights, upon payment by such Owner to the Depositary for
the account of such Owner of an amount equal to the purchase price of the Shares
to be received upon the exercise of the rights, and upon payment of the fees of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of
the Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to this paragraph, such Receipts shall be legended in
accordance with applicable U.S. laws, and shall be subject to the appropriate
restrictions on sale, deposit, cancellation, and transfer under such laws.
If the Depositary determines that it is not lawful or feasible to
make such rights available to all or certain Owners, it may, and at the request
of the Company will use its best efforts that are reasonable under the
circumstances to, sell the rights, warrants or other instruments in proportion
to the number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees of the Depositary as
provided in Section 5.09 of the Deposit Agreement, any expenses in connection
with such sale and all taxes and governmental charges payable in connection with
such rights and subject to the terms and conditions of the Deposit Agreement)
for the account of such Owners otherwise entitled to such rights, warrants or
other instruments, upon an averaged or other practical basis without regard to
any distinctions among such Owners because of exchange restrictions or the date
of delivery of any Receipt or otherwise. Such proceeds shall be distributed as
promptly as practicable in accordance with Section 4.01 of the Deposit
Agreement.
If a registration statement under the Securities Act of 1933 is
required with respect to the securities to which any rights relate in order for
the Company to offer such rights to Owners and sell the securities represented
by such rights, the Depositary will not offer such rights to Owners having an
address in the United States (as defined in
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Regulation S) unless and until such a registration statement is in effect, or
unless the offering and sale or such securities and such rights to such Owners
are exempt from registration under the provisions of such Act.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can, pursuant to applicable law, be
converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary or the Custodian shall convert
or cause to be converted as promptly as practicable (and in any event within one
Business Day of its or its agent's receipt of such Foreign Currency), by sale or
in any other manner that it may determine in accordance with applicable law,
such Foreign Currency into Dollars. If, at the time of conversion of such
Foreign Currency into Dollars, such Dollars can, pursuant to applicable law, be
transferred outside of Brazil for distribution to Owners entitled thereto, such
Dollars shall be distributed as promptly as practicable to the Owners entitled
thereto or, if the Depositary shall have distributed any rights, warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such rights, warrants and/or instruments upon surrender thereof for
cancellation. Such distribution or conversion may be made upon an averaged or
other practicable basis without regard to any distinctions among Owners on
account of exchange restrictions, the date of delivery of any Receipt or
otherwise and shall be net of any expenses of conversion into Dollars incurred
by the Depositary as provided in Section 5.09 of the Deposit Agreement.
If such conversion, transfer or distribution can be effected only
with the approval or license of any government or agency thereof, the Depositary
shall file as promptly as practicable such application for approval or license;
however, the Depositary shall be entitled to rely upon Brazilian local counsel
in such matters, which counsel shall be instructed to act as promptly as
possible.
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If at any time foreign currency received by the Depositary or the
Custodian is not, pursuant to applicable law, convertible, in whole or in part,
into Dollars transferable to the United States, or if any approval or license of
any government or agency thereof which is required for such conversion is
denied or in the opinion of the Depositary cannot be promptly obtained, the
Depositary shall, (a) as to that portion of the foreign currency that is
convertible into Dollars, make such conversion and, if permitted by applicable
law, transfer such Dollars to the United States for distribution to Owners in
accordance with the first paragraph of this Article 13 or, if such transfer is
not so permitted, hold such Dollars uninvested and without liability for
interest thereon for the respective accounts of the Owners entitled to receive
the same, and (b) as to the nonconvertible balance, if any, (i) if requested in
writing by an Owner, distribute or cause the Custodian to distribute the foreign
currency (or an appropriate document evidencing the right to receive such
foreign currency) received by the Depositary or Custodian to such Owner and (ii)
the Depositary shall hold or shall cause the Custodian to hold any amounts of
nonconvertible foreign currency not distributed pursuant to the immediate
preceding subclause (i) uninvested and without liability for interest thereon
for the respective accounts of the Owners entitled to receive the same.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever for any
reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient,
the Depositary shall fix a record date, which date shall, to the extent
practicable, be either (x) the same date as the record date fixed by the
Company, or (y) if different from the record date fixed by the Company, be fixed
after consultation with the Company (a) for the determination of the Owners of
Receipts who shall be (i) entitled to receive such dividend, distribution or
rights or the net proceeds of the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights at any such meeting, or (b) on or
after which each American Depositary Share will represent the changed number of
Shares, subject to the provisions of the Deposit Agreement.
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16. VOTING OF DEPOSITED SECURITIES.
At any time that the Depositary has the right to vote the Shares
represented by the American Depositary Shares, the Depositary will comply with
the following provisions.
As soon as practicable after receipt of notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, if requested in writing by the Company, the Depositary shall, as
soon as practicable thereafter, mail to the Owners of Receipts a notice, the
form of which notice shall be in the sole discretion of the Depositary, which
shall contain (a) such information as is contained in such notice or meeting,
(or, if requested by the Company a summary of such information provided by the
Company), (b) a statement that the Owners of Receipts as of the close of
business on a specified record date will be entitled, subject to any applicable
provision of Brazilian law and of the Charter of the Company, to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
amount of Shares or other Deposited Securities represented by their respective
American Depositary Shares and (c) a statement as to the manner in which such
instructions may be given, including an express indication that instructions may
be given or deemed given in accordance with the last sentence of this paragraph
if no instruction is received, to the Depositary to give a discretionary proxy
to a person designated by the Company. Upon the written request of an Owner of a
Receipt on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the amount of Shares or other Deposited
Securities represented by such American Depositary Shares evidenced by such
Receipt in accordance with the instructions set forth in such request. The
Depositary shall not itself exercise any voting discretion over any Deposited
Securities. If no instructions are received by the Depositary from any Owner
with respect to any of the Deposited Securities represented by the American
Depositary Shares evidenced by such Owner's Receipts on or before the date
established by the Depositary for such purpose, the Depositary shall deem such
Owner to have instructed the Depositary to give a discretionary proxy to a
person designated by the Company with respect to such Deposited Securities and
the Depositary shall give a discretionary proxy to a person designated by the
Company to vote such Deposited Securities, provided that no such instruction
shall be deemed given and no such discretionary proxy shall be given with
respect to any matter as to which
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the Company informs the Depositary (and the Company agrees to provide such
information as promptly as practicable in writing) that (x) the Company does not
wish such proxy given, (y) substantial opposition exists or (z) such matter
materially and adversely affects the rights of holders of Shares.
Subject to the rules of any securities exchange on which American
Depositary Shares or the Deposited Securities represented thereby are listed,
the Depositary shall if requested by the Company deliver, at least two Business
Days prior to the date of such meeting, to the Company, to the attention of its
Secretary, copies of all instructions received from Owners in accordance with
which the Depositary will vote, or cause to be voted, the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipts at such
meeting. Delivery of instructions will be made at the expense of the Company
(unless otherwise agreed in writing by the Company and the Depositary).
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the Provisions of Section 4.03 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent the new Deposited Securities so received in exchange
or conversion, unless additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may, and shall if the
Company shall so request, execute and deliver additional Receipts as in the case
of a dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner, if by reason of any provision of any present or
future law or regulation of the United States or any other country, or
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of any other governmental or regulatory authority, or by reason of any
provision, present or future, of the Charter of the Company, or by reason of any
act of God or war or other circumstances beyond its control, the Depositary or
the Company shall be prevented or forbidden from or be subject to any civil or
criminal penalty on account or doing or performing any act or thing which by the
terms of the Deposit Agreement it is provided shall be done or performed; nor
shall the Depositary or the Company nor any or their respective directors,
employees, agents or affiliates incur any liability to any Owner or Beneficial
Owner of a Receipt by reason of any non-performance or delay, caused as
aforesaid, in the performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise or, or failure to exercise, any discretion provided for in the
Deposit Agreement. Where, by the terms of a distribution pursuant to Sections
4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.04 of the Deposit Agreement, such distribution or offering
may not be made available to Owners of Receipts, and the Depositary may not
dispose of such distribution or offering on behalf of such Owners and make the
net proceeds available to such Owners, then the Depositary shall not make such
distribution or offering, and shall allow any rights, if applicable, to lapse.
Neither the Company nor the Depositary assumes any obligation or shall be
subject to any liability under the Deposit Agreement to Owners or Beneficial
Owners of Receipts, except that they agree to perform their obligations
specifically set forth in the Deposit Agreement without negligence or bad faith.
The Depositary shall not be subject to any liability with respect to the
validity or worth of the Deposited Securities. Neither the Depositary nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit, or other proceeding in respect of any Deposited Securities or in
respect of the Receipts, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expenses and
liability shall be furnished as often as may be required, and the Custodian
shall not be under any obligation whatsoever with respect to such proceedings,
the responsibility of the Custodian being solely to the Depositary. Neither the
Depositary nor the Company shall be liable for any action or nonaction by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Owner or Beneficial Owner of a
Receipt, or any other person believed by it in good faith to be competent to
give such advice or information. The Depositary shall not be responsible for any
failure to carry out any instructions to vote any of the Deposited
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Securities, or for the manner in which any such vote is cast or the effect of
any such vote, provided that any such action or nonaction is in good faith. The
Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a Previous act or omission of the
Depositary or in connection with a matter arising wholly after the removal or
resignation of the Depositary, provided that in connection with the issue out of
which such potential liability arises, the Depositary performed its obligations
without negligence or bad faith while it acted as Depositary.
The Company agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) which may arise out of acts performed
or omitted, in accordance with the provisions of the Deposit Agreement and of
the Receipts, as the same may be amended, modified, or supplemented from time to
time, (i) by either the Depositary or a Custodian or their respective directors,
employees, agents and affiliates, except for any liability or expense arising
out of the negligence or bad faith of either of them, and except to the extent
that such liability or expense arises out of information relating to the
Depositary or the Custodian, as applicable, furnished in writing to the Company
by the Depositary or the Custodian, as applicable, expressly for use in any
registration statement, proxy statement, prospectus (or placement memorandum) or
preliminary prospectus (or preliminary placement memorandum) relating to the
Shares, or omissions from such information; or (ii) by the Company or any of its
directors, employees, agents and affiliates. The indemnities contained in this
paragraph shall not extend to any liability or expense which may arise out of
any Pre-Release.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provisions of the Deposit Agreement.
The Depositary, subject to Sections 2.05 and 2.09 of the Deposit
Agreement, may own and deal in any class of securities of the Company and its
affiliates and in Receipts.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR CUSTODIAN.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do
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delivered to the Company, such resignation to take effect upon the appointment
of a successor depositary and its acceptance of such appointment as provided in
the Deposit Agreement. The Depositary may at any time be removed by the Company
by written notice of such removal, effective upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. Whenever the Depositary in its discretion determines that it is in
the best interest of the Owners of Receipts to do so, it may appoint a
substitute or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any Provisions of the Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary in any respect which they may deem necessary or
desirable. Any amendment which shall impose or increase any fees or charges
(other than taxes and other governmental charges, registration fees and cable,
telex or facsimile transmission costs, delivery costs or other such expenses),
or which shall otherwise prejudice any substantial existing right of Owners of
Receipts, shall, however, not become effective as to outstanding Receipts until
the expiration of thirty days after notice of such amendment shall have been
given to the Owners of outstanding Receipts. Every Owner of a Receipt at the
time any amendment so becomes effective shall be deemed, by continuing to hold
such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair the
right of the Owner of any Receipt to surrender such Receipt and receive therefor
the Deposited Securities represented thereby except in order to comply with
mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT
The Depositary at any time, at the direction of the Company, shall
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding, such termination to be effective on a
date specified in such notice not less than 30 days after the date thereof, if
at any time 60 days shall have expired after the Depositary shall have delivered
to the Company a written notice of its election to resign and a successor
depositary shall not have been appointed and
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accepted its appointment as provided in the Deposit Agreement. On and after the
date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.05 of
the Deposit Agreement, and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to the Owner or upon the Owner's order, of the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under the Deposit Agreement, except that the Depositary
shall continue to collect dividends and other distributions pertaining to
Deposited Securities, shall sell rights as provided in the Deposit Agreement,
and shall continue to deliver Deposited Securities, together with any dividends
or other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges). At any time after the
expiration of one year from the date of termination, the Depositary may sell the
Deposited Securities then held under the Deposit Agreement and may thereafter
hold uninvested the net proceeds of any such sale, together with any other cash
then held by it thereunder, unsegregated and without liability for interest, for
the pro rata benefit of the Owners of Receipts which have not theretofore been
surrendered, such Owners thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement, except to
account for such net proceeds and other cash (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of the Deposit Agreement, and any applicable taxes or governmental charges) and
except as provided in Section 5.08 of the Deposit Agreement. Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except for its obligations to the
Depositary with respect to indemnification, charges, and expenses.
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EXHIBIT 10.1
MODELO DE
CONTRATO DE CONCESSAO DO SERVICO TELEFONICO FIXO COMUTADO LOCAL
(EMPRESAS DO STB, EXCETO EMBRATEL)
Pelo presente instrumento, de um lado a Agencia Nacional de
Telecomunicacoes, doravante denominada ANATEL, entidade integrante da UNIAO e
nos termos da Lei Federal n 9.472 de 16 de Julho de 1997, Lei Geral de
Telecomunicacoes - LGT, incumbida do exercicio do Poder Concedente, ora
representada pelo seu Presidente Renato Navarro Guerreiro, [qualificar]
conjuntamente com o Conselheiro **** [qualificar], conforme aprovacao do seu
Conselho Diretor constante da Resolucao n ****, e, de outro a [nome e
qualificacao da concessionaria], por seu representante legal, doravante
denominada CONCESSIONARIA, consoante o disposto no art. 207 da referida Lei
Geral de Telecomunicacoes, por este instrumento e na melhor forma de direito,
celebram o presente CONTRATO DE CONCESSAO, que sera regido pelas normas adiante
referidas e pelas seguintes clausulas:
CAPITULO I - DO OBJETO
Clausula 1.1. - O objeto do presente Contrato e a concessao do Servico
Telefonico Fixo Comutado, destinado ao uso do publico em geral, prestado em
regime publico, na modalidade de servico local, na area geografica definida na
clausula 2.1, nos termos do Plano Geral de Outorgas.
PARAGRAFO UNICO - Compreende-se no objeto da presente concessao o
Servico Telefonico Fixo Comutado, prestado em regime publico, em areas
limitrofes e fronteiricas, em conformidade com a regulamentacao editada pela
ANATEL, consoante disposicao contida no Plano Geral de Outorgas.
CLAUSULA 1.2. - Servico Telefonico Fixo Comutado e o servico de
telecomunicacoes que, por meio da transmissao de voz e de outros sinais,
destina-se a comunicacao entre pontos fixos determinados, utilizando processos
de telefonia.
CLAUSULA 1.3. - Mediante previa aprovacao por parte da ANATEL, a
Concessionaria podera implantar e explorar utilidades ou comodidades
relacionadas com a prestacao do servico objeto da presente concessao.
PARAGRAFO UNICO - Serao consideradas relacionadas com o objeto da
presente Concessao aquelas prestacoes, utilidades ou comodidades que, a juizo da
ANATEL, sejam consideradas inerentes a plataforma do servico ora concedido, sem
caracterizar nova modalidade de servico, observadas as disposicoes da
regulamentacao.
<PAGE>
CLAUSULA 1.4. - A Concessionaria tem direito a implantacao, expansao e
operacao dos troncos, redes e centrais de comutacao necessarios a sua execucao,
bem assim sua exploracao industrial, nos termos da regulamentacao.
CLAUSULA 1.5. - E indissociavel da prestacao do servico concedido, a
obrigacao de atendimento as metas de universalizacao e qualidade previstas neste
Contrato.
CLAUSULA 1.6.- A Concessionaria se obriga a fornecer a seus
assinantes, diretamente ou por intermedio de terceiros, de forma gratuita,
listas telefonicas dos assinantes de todas as prestadoras do Servico Telefonico
Fixo Comutado, em sua area de concessao, observada a regulamentacao.
CLAUSULA 1.7. - A Concessionaria devera assegurar a todos os
solicitantes e usuarios do servico concedido a realizacao das instalacoes
necessarias a prestacao do servico, nos termos da regulamentacao.
CLAUSULA 1.8. - A Concessionaria devera manter acesso gratuito para
servicos de emergencia estabelecidos na regulamentacao.
CAPITULO II - DA AREA DE PRESTACAO DO SERVICO
CLAUSULA 2.1. - A area geografica de prestacao do servico objeto da
presente concessao e aquela abrangida pelo(s) territorio(s) contido(s) no Setor
de numero *** constante do Anexo 2 do Plano Geral de Outorgas.
CAPITULO - III - DO PRAZO E DAS CONDICOES DE PRORROGACAO DO CONTRATO
Clausula 3.1. - O prazo da presente concessao, outorgada a titulo
gratuito, tera seu termo final em 31 de dezembro de 2005, assegurado o direito a
prorrogacao unica por vinte anos, de acordo com as clausulas 3.2, 3.3 e 3.4.
CLAUSULA 3.2. - A presente concessao sera prorrogada, a pedido da
Concessionaria, a titulo oneroso, uma unica vez por 20 (vinte) anos, desde que a
Concessionaria atenda as condicoes constantes deste Contrato, podendo o novo
Contrato incluir novos condicionamentos, estabelecer novas metas para
universalizacao e de qualidade, tendo em vista as condicoes vigentes a epoca da
prorrogacao, definindo, no caso de metas de universalizacao, recursos
complementares, nos termos do art. 81 da Lei n 9.472, de 1997.
(S) 1 - A ANATEL, 36 (trinta e seis) meses antes do termo
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final previsto na clausula 3.1, fara publicar consulta publica com sua proposta
de novos condicionamentos e de novas metas para qualidade e universalizacao do
servico, submetidas estas ultimas a aprovacao, por meio de Decreto, do
Presidente da Republica, nos termos do art. 18, inciso III, da Lei n 9.472, de
1997.
(S) 2 - Para a prorrogacao prevista nesta clausula, a Concessionaria
devera manifestar seu expresso interesse com antecedencia minima de 30 (trinta)
meses antes do termo final previsto na clausula 3.1.
CLAUSULA 3.3. - Para prorrogacao do prazo da presente concessao, nos
termos do previsto na clausula anterior, a Concessionaria devera pagar, a cada
bienio, durante o periodo de prorrogacao, onus correspondente a 2% (dois por
cento) da sua receita, do ano anterior ao do pagamento, do Servico Telefonico
Fixo Comutado, liquida de impostos e contribuicoes sociais incidentes.
(S) 1 - No calculo do valor referido no caput desta clausula sera
considerada a receita liquida decorrente da aplicacao dos planos de servico,
basico e alternativos, objeto da presente concessao.
(S) 2 - O calculo do percentual referido no caput desta clausula sera
feito sempre relativamente a receita liquida das deducoes de impostos e
contribuicoes incidentes, apurada entre janeiro e dezembro do ano anterior e
obtida das demonstracoes financeiras elaboradas conforme legislacao societaria e
principios fundamentais de contabilidade, aprovadas pela administracao da
Concessionaria e auditadas por auditores independentes, e o pagamento tera
vencimento em 30 de abril do ano subsequente ao da apuracao do onus.
(S) 3 - A primeira parcela do onus tera vencimento em 30 de abril de
2007, calculada considerando a receita liquida apurada de 1 de janeiro a 31 de
dezembro de 2006, e as parcelas subsequentes terao vencimento a cada 24 (vinte e
quatro) meses, tendo como base de calculo a receita do ano anterior.
(S) 4 - O atraso no pagamento do onus previsto nesta clausula
implicara a cobranca de multa moratoria de 0,33% (zero virgula trinta e tres por
cento) ao dia, ate o limite de 10% (dez por cento), acrescida da taxa
referencial SELIC para titulos federais, a ser aplicada sobre o valor da divida
considerando todos os dias de atraso de pagamento.
CLAUSULA 3.4. - A prorrogacao do prazo do presente Contrato ensejara a
prorrogacao no direito de uso das radiofrequencias referidas na clausula 4.1 que
sejam necessarias a continuidade da prestacao do servico.
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<PAGE>
Paragrafo unico - O retorno a ANATEL de radiofrequencias que nao sejam
necessarias a continuidade da prestacao dos servicos nao implicara modificacao
do valor do onus da prorrogacao fixado na clausula 3.3.
CAPITULO IV - DO MODO, FORMA E CONDICOES DE PRESTACAO
Clausula 4.1. A utilizacao de radiofrequencias na prestacao do
servico objeto desta concessao sera autorizada pela ANATEL, a titulo oneroso e
sem exclusividade, salvo se existir disposicao em contrario na regulamentacao,
consoante o disposto nos artigos 83 e 163 da Lei n 9.472, de 1997.
(S) 1 - A Concessionaria tera direito de utilizacao, sem
exclusividade, das radiofrequencias autorizadas anteriormente a data da
assinatura deste Contrato, independente do pagamento de qualquer onus, exceto as
taxas de fiscalizacao, observadas as condicoes estabelecidas nas respectivas
licencas de funcionamento das estacoes.
(S) 2 - O direito de utilizacao de radiofrequencias referido nesta
clausula nao elide a prerrogativa conferida a ANATEL pelo art.161 da Lei n
9.472, de 1997.
(S) 3 - As novas radiofrequencias que venham a ser requeridas pela
Concessionaria terao seu uso autorizado, a titulo oneroso, com observancia dos
procedimentos definidos pela ANATEL para autorizacoes similares.
(S) 4 - O prazo das autorizacoes de uso de radiofrequencias
requeridas nos termos do paragrafo anterior sera igual ao prazo da presente
Concessao, devendo sua prorrogacao ser feita a titulo oneroso, independente do
pagamento do onus referido na clausula 3.3. do presente.
CLAUSULA 4.2. - A Concessionaria se obriga a prestar o servico objeto
da concessao de forma a cumprir plenamente as obrigacoes de universalizacao e
continuidade inerentes ao regime publico, que lhe e inteiramente aplicavel,
observados os criterios, formulas e parametros definidos no presente Contrato.
PARAGRAFO UNICO - O descumprimento das obrigacoes relacionadas a
universalizacao e a continuidade ensejara a aplicacao das sancoes previstas no
presente Contrato, permitira a decretacao de intervencao pela ANATEL e, conforme
o caso e a gravidade ou quando a decretacao de intervencao for inconveniente,
inocua, injustamente benefica a Concessionaria ou desnecessaria, implicara a
caducidade da concessao, nos termos do disposto na clausula 26.4.
4
<PAGE>
CLAUSULA 4.3. - A Concessionaria explorara o servico objeto da
concessao por sua conta e risco, dentro do regime de ampla e justa competicao
estabelecido na Lei n 9.472, de 1997, e no Plano Geral de Outorgas, sendo
remunerada pelas tarifas cobradas e por eventuais receitas complementares ou
acessorias que perceba nos termos do presente Contrato.
PARAGRAFO UNICO - A Concessionaria nao tera direito a qualquer especie
de exclusividade, nem podera reclamar direito quanto a admissao de novos
prestadores do mesmo servico, no regime publico ou privado.
CLAUSULA 4.4. - Ao longo de todo o prazo de vigencia da concessao, a
Concessionaria se obriga a manter os compromissos de qualidade, abrangencia e
oferta do servico constantes do presente Contrato, independentemente do ambiente
de competicao existente na area geografica de exploracao do servico.
CLAUSULA 4.5. - A Concessionaria se compromete a manter e conservar
todos os bens, equipamentos e instalacoes empregados no servico em perfeitas
condicoes de funcionamento, conservando e reparando suas unidades e promovendo,
nos momentos oportunos, as substituicoes demandadas em funcao do desgaste ou
superacao tecnologica, ou ainda promovendo os reparos ou modernizacoes
necessarias a boa execucao do servico e a preservacao do servico adequado,
conforme determinado no presente Contrato.
CAPITULO V - DAS REGRAS PARA IMPLANTACAO, EXPANSAO, ALTERACAO E MODERNIZACAO DO
SERVICO
CLAUSULA 5.1. - Constituem pressupostos basicos da presente concessao
a expansao e a modernizacao do servico concedido, observadas as metas e os
criterios constantes do presente Contrato.
PARAGRAFO UNICO - A ANATEL podera determinar a alteracao de metas de
implantacao, expansao e modernizacao do servico, respeitado o direito da
Concessionaria de nao ser obrigada a suportar custos adicionais nao recuperaveis
com a receita decorrente do atendimento dessas metas por meio da exploracao
eficiente do servico.
CLAUSULA 5.2. - A alteracao nas condicoes de prestacao do servico
somente podera ocorrer por determinacao da ANATEL ou mediante sua previa e
expressa aprovacao.
CLAUSULA 5.3. - A modernizacao do servico sera buscada atraves da
constante introducao de equipamentos, processos e meios aptos a prestar ao
usuario um servico compativel com a atualidade em
5
<PAGE>
face das tecnologias disponiveis no mercado.
CAPITULO VI - DOS CRITERIOS E INDICADORES DE QUALIDADE E CONTINUIDADE DO
SERVICO.
CLAUSULA 6.1. - Constitui pressuposto da presente Concessao a adequada
qualidade do servico prestado pela Concessionaria, considerando-se como tal o
servico que satisfizer as condicoes de regularidade, eficiencia, seguranca,
atualidade, generalidade, cortesia e modicidade das tarifas.
(S) 1 - A regularidade sera caracterizada pela prestacao continuada
do servico com estrita observancia do disposto nas normas baixadas pela ANATEL.
(S) 2 - A eficiencia sera caracterizada pela consecucao e preservacao
dos parametros constantes do presente Contrato e pelo atendimento do usuario do
servico nos prazos previstos neste Contrato.
(S) 3 - A seguranca na prestacao do servico sera caracterizada pela
confidencialidade dos dados referentes a utilizacao do servico pelos usuarios,
bem como pela plena preservacao do sigilo das informacoes transmitidas no ambito
de sua prestacao, observado o disposto no Capitulo XIV.
(S) 4 - A atualidade sera caracterizada pela modernidade dos
equipamentos, das instalacoes e das tecnicas de prestacao do servico, com a
absorcao dos avancos tecnologicos advindos ao longo do prazo da concessao que,
definitivamente, tragam beneficios para os usuarios, respeitadas as disposicoes
do presente Contrato.
(S) 5 - A generalidade sera caracterizada com a prestacao nao
discriminatoria do servico a todo e qualquer usuario, obrigando-se a
Concessionaria a prestar o servico a quem o solicite, no local indicado pelo
solicitante, nos termos do presente Contrato e de acordo com a regulamentacao.
(S) 6 - A cortesia sera caracterizada pelo atendimento respeitoso e
imediato de todos os usuarios do servico concedido, bem como pela observancia
das obrigacoes de informar e atender pronta e polidamente todos que, usuarios ou
nao, solicitem da Concessionaria informacoes, providencias ou qualquer tipo de
postulacao nos termos do disposto no presente Contrato.
(S) 7 - O principio da modicidade das tarifas sera caracterizado pelo
esforco da Concessionaria em praticar tarifas inferiores as fixadas pela ANATEL.
6
<PAGE>
CLAUSULA 6.2. A Concessionaria devera observar os parametros e
indicadores do Plano Geral de Metas de Qualidade.
PARAGRAFO UNICO - A Concessionaria devera divulgar, anualmente, quadro
demonstrativo das metas e parametros estabelecidos e realizados do Plano Geral
de Metas de Qualidade e do Plano Geral de Metas de Universalizacao, sem prejuizo
do fornecimento destes dados, sempre que solicitados pela ANATEL.
CLAUSULA 6.3. - A continuidade do servico ora concedido, elemento
essencial ao regime de sua prestacao, sera caracterizada pela nao interrupcao do
servico, observada a suspensao por inadimplencia do usuario nos termos do
disposto na clausula 8.3. e no art. 3, inciso VII da Lei n 9.472, de 1997.
PARAGRAFO UNICO - Nao sera considerada violacao da continuidade a
interrupcao circunstancial do servico decorrente de situacao de emergencia,
motivada por razoes de ordem tecnica ou de seguranca das instalacoes, mediante
comunicacao aos usuarios afetados e, nos casos relevantes, tambem mediante aviso
circunstanciado a ANATEL.
CLAUSULA 6.4. - A Concessionaria nao podera, em hipotese alguma,
interromper a prestacao do servico alegando o nao adimplemento de qualquer
obrigacao por parte da ANATEL ou da Uniao, nao sendo invocavel, pela
Concessionaria, a excecao por inadimplemento contratual.
CLAUSULA 6.5. - Alem da gerencia e auditoria dos indicadores de
qualidade, a ANATEL avaliara, periodicamente, o grau de satisfacao dos usuarios
com o servico ora concedido, podendo divulgar os resultados da Concessionaria,
abrangendo, pelo menos, os seguintes aspectos:
I - atendimento ao usuario, especialmente no que tange a facilidade
de acesso, presteza, cordialidade, rapidez e eficacia na resposta a
solicitacoes e reclamacoes;
II - tarifas cobradas e descontos oferecidos;
III - qualidade tecnica do servico prestado; e
IV - adequacao dos servicos oferecidos as necessidades dos usuarios.
CAPITULO VII - DAS METAS DE UNIVERSALIZACAO
CLAUSULA 7.1. - A universalizacao constitui traco essencial
7
<PAGE>
do regime de prestacao do servico ora concedido e sera caracterizada pelo
atendimento uniforme e nao discriminatorio de todos os usuarios e pelo
cumprimento das metas constantes do Plano Geral de Metas de Universalizacao,
aprovado pelo Poder Executivo, nos termos dos artigos 18, inciso III, e 80 da
Lei n 9.472, de 1997, e as do Anexo 02, atribuidas a Concessionaria.
CLAUSULA 7.2. - A excecao do disposto na clausula 7.4. deste Contrato
e observado o (S) 2 do art. 4 do Plano Geral de Metas de Universalizacao,
aprovado pelo Decreto n 2.592, de 15 de maio de 1998, a implementacao das metas
de universalizacao previstas neste Contrato sera financiada exclusivamente pela
Concessionaria, atraves da exploracao do servico, nao lhe assistindo direito a
ressarcimento ou subsidio.
CLAUSULA 7.3. - A Concessionaria assume a obrigacao de implementar
metas de universalizacao nao previstas no presente Contrato e que venham a ser
requeridas pela ANATEL, em observancia ao disposto no (S) 2 do art. 2 do Plano
Geral de Metas de Universalizacao, aprovado pelo Decreto n 2.592, de 1998,
respeitado o seguinte procedimento para definicao do montante e criterio de
ressarcimento:
I - a ANATEL consultara a Concessionaria sobre os custos totais da
implantacao das metas adicionais pretendidas e sobre a parcela
destes que nao podera ser amortizada pela receita de exploracao,
sendo coberta por pagamento especifico, indicando especificamente os
objetivos a serem atingidos, as tecnologias selecionadas, bem como o
local e prazo de implementacao;
II - se decorrido o prazo fixado na consulta, inexistir manifestacao
da Concessionaria, a ANATEL tomara as providencias necessarias para
determinar os onus e custos da implementacao destas metas bem como
para estimar a correspondente geracao de receita;
III - se respondida a Consulta pela Concessionaria, a ANATEL
avaliara se os custos e as estimativas de receitas apresentados sao
adequados e compativeis, levando em conta as tecnologias
disponiveis, o preco dos insumos e mao-de-obra, as caracteristicas
geograficas e socio-economicas da demanda a ser atendida, os precos
praticados no mercado alem de outras variaveis que considere
relevantes;
IV - nao considerando razoaveis os custos e/ou a estimativa de
receita propostos, a ANATEL podera, motivadamente, imputar a
implementacao das metas a Concessionaria, estabelecendo o valor do
ressarcimento,
8
<PAGE>
observado o disposto no Capitulo XXX; e
V - estando os valores de ressarcimento adequados e compativeis no
entendimento da ANATEL, esta confirmara a Concessionaria a imputacao
da implementacao destas metas especificas, nos termos da proposta de
ressarcimento encaminhada pela Concessionaria.
(S) 1 - Se, apos o procedimento previsto nesta clausula, a ANATEL
considerar inconveniente ou inviavel a implementacao da meta especifica de
universalizacao atraves da Concessionaria, contratara junto a outrem a
incumbencia, podendo faze-lo por meio de outorgas especificas e delimitadas do
servico, observados os parametros economicos obtidos no procedimento previsto
nesta clausula.
(S) 2 - A criterio da ANATEL, o procedimento previsto nesta clausula
tambem podera ser utilizado para fins de fixacao dos valores a serem ressarcidos
com a utilizacao dos recursos do Fundo de Universalizacao dos Servicos de
Telecomunicacoes, quando da antecipacao das metas previstas no Plano Geral de
Metas de Universalizacao, aprovado pelo Poder Executivo, nos termos dos artigos
18, inciso III, e 80 da Lei n 9.472, de 1997.
(S) 3 - A utilizacao de recursos do Fundo de Universalizacao dos
Servicos de Telecomunicacoes, conforme paragrafo anterior, implica a exclusao do
aproveitamento dos beneficios da antecipacao de metas previstos no (S) 2 do
artigo 10, do Plano Geral de Outorgas, exceto no caso de ressarcimento a ANATEL
pelos valores que tenha utilizado desse Fundo, acrescidos da remuneracao devida.
CLAUSULA 7.4. - A adocao dos procedimentos previstos na clausula
anterior constitui faculdade da ANATEL, que podera adota-la a seu criterio e
consoante o melhor atendimento do interesse publico, nao assistindo a
Concessionaria direito de preferencia na implementacao destas metas.
CAPITULO VIII - DAS REGRAS SOBRE SUSPENSAO DO SERVICO POR INADIMPLENCIA E A
PEDIDO DO ASSINANTE
CLAUSULA 8.1. - O assinante do servico objeto da presente concessao
podera solicitar, a qualquer tempo, o desligamento do terminal de que faca uso,
devendo a Concessionaria atender a solicitacao em prazo a ser estabelecido pela
ANATEL, o qual nao sera superior a 48 (quarenta e oito) horas, ressalvados os
casos de aprazamento por parte do assinante.
9
<PAGE>
PARAGRAFO UNICO - A Concessionaria nao podera exigir pagamento pelo
desligamento a que se refere o caput desta clausula.
CLAUSULA 8.2. - O assinante que estiver adimplente com a
Concessionaria e requerer a suspensao do servico, por prazo superior a 30
(trinta) dias e inferior a 120 (cento e vinte) dias, tera assegurada a religacao
do terminal no mesmo endereco e a manutencao do prefixo e da numeracao ao final
do prazo de suspensao solicitado, na forma da regulamentacao.
CLAUSULA 8.3. - A Concessionaria somente podera proceder ao
desligamento do terminal cujo assinante nao honrar o pagamento de debito
diretamente decorrente da utilizacao do servico concedido, apos transcorridos 30
(trinta) dias de inadimplencia e observando o procedimento estabelecido em
regulamentacao propria editada pela ANATEL e seguindo os seguintes criterios:
I - devera ser assegurado prazo para o assinante questionar os
debitos contra ele lancados; e
II - o assinante inadimplente tera direito a preservacao do seu
codigo de acesso, por, no minimo, 60 (sessenta) dias contados do
desligamento.
(S) 1. A Concessionaria devera informar o desligamento ao assinante
com antecedencia minima de 15 (quinze) dias.
(S) 2. O inadimplemento de debitos nao relacionados diretamente com o
servico objeto desta concessao, conforme paragrafo unico da clausula 10.6, nao
ensejara a interrupcao de que trata a presente clausula.
CLAUSULA 8.4. A Concessionaria assegurara ainda ao assinante o direito
a ter bloqueado temporaria ou permanentemente o acesso a comodidades ou
utilidades oferecidas, bem como a servicos de valor adicionado, sempre que por
ele solicitado, nos termos da regulamentacao.
CLAUSULA 8.5. Caso a inadimplencia do assinante se referir
exclusivamente ao pagamento dos servicos prestados por prestador de Servico
Telefonico Fixo Comutado diverso do ora concedido que seja objeto de faturamento
conjunto pela Concessionaria, o bloqueio devera obedecer ao procedimento
especifico objeto de regulamentacao pela ANATEL.
CAPITULO IX - DO PLANO DE NUMERACAO
CLAUSULA 9.1. - Observada a regulamentacao, a
10
<PAGE>
Concessionaria se obriga a obedecer ao Regulamento de Numeracao para o Servico
Telefonico Fixo Comutado editado pela ANATEL, devendo assegurar ao assinante do
servico a portabilidade de codigos de acesso no prazo definido nesse
Regulamento.
(S) 1 - A Concessionaria arcara com os custos necessarios a adaptar-
se ao Regulamento de Numeracao referido no caput desta Clausula.
(S) 2 - Os custos referentes aos investimentos necessarios para
permitir a portabilidade de codigos de acesso serao divididos entre a
Concessionaria e os demais prestadores de servico de telecomunicacao, em regime
publico ou privado.
(S) 3 - Os custos referentes a administracao do processo de
consignacao e ocupacao de codigos de acesso do Regulamento de Numeracao serao
imputados a Concessionaria, nos termos do Regulamento da Administracao da
Numeracao.
CAPITULO X - DO REGIME TARIFARIO E DA COBRANCA DOS USUARIOS
CLAUSULA 10.1. - A Concessionaria devera ofertar a todos os usuarios,
obrigatoriamente, o Plano Basico do Servico Local, Anexo 03, parte integrante
deste Contrato.
PARAGRAFO UNICO - O Plano Basico do Servico Local sera unico para toda
a area referida na clausula 2.1. e devera conter, nos termos do estabelecido
pela ANATEL, valores maximos para cada item da estrutura tarifaria definida para
a prestacao do Servico Telefonico Fixo Comutado, valores estes que serao
revistos e reajustados, observadas as normas aplicaveis.
CLAUSULA 10.2. - A Concessionaria podera ofertar aos seus assinantes
Planos Alternativos de Servico Local com criterios de tarifacao diferentes
daqueles constantes do Plano Basico do Servico Local.
(S) 1 - Sera garantida ao assinante a transferencia entre os diversos
Planos de Servico Local ofertados pela Concessionaria, nos termos da
regulamentacao.
(S) 2 - A estrutura de tarifas e valores dos Planos Alternativos de
Servico Local sao de livre proposicao da Concessionaria, observado o disposto na
clausula 10.1.
(S) 3 - A Concessionaria e obrigada a ofertar, de forma nao
discriminatoria, ao assinante seus Planos Alternativos de Servico Local
homologados pela ANATEL.
11
<PAGE>
(S) 4 - Os Planos Alternativos de Servico Local deverao ser
homologados pela ANATEL antes de sua oferta ao publico em geral.
(S) 5 - A ANATEL devera se pronunciar sobre os Planos Alternativos de
Servico Local em ate 15 (quinze) dias apos seu recebimento, considerando-se os
mesmos homologados caso, ate este prazo, nao haja pronunciamento da ANATEL.
CLAUSULA 10.3. - A Concessionaria podera praticar descontos nas
tarifas dos Planos de Servico Local desde que de forma equanime e nao
discriminatoria, vedada a reducao subjetiva de valores, e observado o principio
da justa competicao.
PARAGRAFO UNICO A Concessionaria se obriga a divulgar, com
antecedencia, aos seus usuarios os descontos tarifarios, dando-lhes ampla e
previa divulgacao, comunicando sua decisao a ANATEL, ate 7 (sete) dias apos o
inicio da vigencia da reducao das tarifas.
CLAUSULA 10.4. - A Concessionaria se obriga a dar ampla publicidade as
tarifas praticadas pelo servico objeto da presente concessao, na forma
regulamentada pela ANATEL.
CLAUSULA 10.5. - Quando da implantacao de novas prestacoes, utilidades
ou comodidades relacionadas ao servico objeto da concessao, a Concessionaria
submetera previamente a pretensao de cobranca para aprovacao da ANATEL, sem a
qual nao podera ser cobrada qualquer tarifa ou preco.
CLAUSULA 10.6. - Os documentos de cobranca emitidos pela
Concessionaria deverao ser apresentados de maneira detalhada, clara,
explicativa, indevassavel e deverao discriminar o tipo e a quantidade de cada
servico prestado ao assinante, na forma da regulamentacao.
PARAGRAFO UNICO - A Concessionaria podera lancar no documento de
cobranca, desde que de forma clara e explicita, os valores devidos pelo
assinante em funcao da prestacao de servicos de valor adicionado, bem como de
outras comodidades ou utilidades relacionadas com o servico concedido.
CLAUSULA 10.7. - A Concessionaria cobrara dos demais prestadores de
servicos de telecomunicacoes tarifas de uso de redes, observadas as normas
editadas pela ANATEL.
CLAUSULA 10.8 A Concessionaria oferecera desconto ao assinante
afetado por eventuais descontinuidades na prestacao do servico concedido, desde
que nao sejam por ele motivadas, o qual sera proporcional ao periodo em que se
verificar a interrupcao, na forma da regulamentacao.
12
<PAGE>
CAPITULO XI - DO REAJUSTAMENTO DAS TARIFAS
CLAUSULA 11.1. - A cada intervalo nao inferior a 12 (doze) meses, por
iniciativa da ANATEL ou da Concessionaria, observadas as regras da legislacao
economica vigente, as tarifas constantes do Plano Basico do Servico Local -
Anexo 03, poderao ser reajustadas mediante a aplicacao da seguinte formula:
<TABLE>
<S> <C>
(HAB\t\ + Ass\t\ + n\to\ x P\t\) is less than or equal to (1-k) Ft (HAB\to\ + Ass\to\ + n\to\ x P\to\)
--- ---
36 36
Sendo:
HAB\t\=PRes\to\x HABRes\t\ + PNRes\to\ x HABNRes\t\+ PTronco\to\ x HABTronco\t\
HAB\to\= PRes\to\x HABRes\to\+ PNRes\to\x HABNRes\to\ + PTronco\to\ x HABTronco\to\
Ass\t\ = PRes\to\ x AssRes\t\ + PNRes\to\ x AssNRes\t\ + PTronco\to\ x AssTronco\t\
Ass\to\ = PRes\to\ x AssRes\to\ + PNRes\to\x AssNRes\to\ + PTronco\to\ x AssTronco\to\
HABRes\t\ is less than or equal to HABRes\to\ x 1,09 x IGP-DI \t\
------
IGP-DI \to\
HABNRes\t\ is less than or equal to HABNRes\to\ x 1,09 x IGP-DI \t\
------
IGP-DI \to\
HABTronco\t\ is less than or equal to HABTronco\to\ x 1,09 x IGP-DI \t\
------
IGP-DI \to\
P\t\ is less than or equal to P\to\ x 1,09 x IGP-DI \t\
------
IGP-DI \to\
AssRes \t\ is less than or equal to AssRes \to\ x 1,09 x IGP-DI \t\
------
IGP-DI \to\
AssNRes \t\ is less than or equal to AssNRes \to\ x 1,09 x IGP-DI \t\
------
IGP-DI \to\
AssTronco \t\ os less than or equal to AssTronco \to\ x 1,09 x IGP-DI \t\
------
IGP-DI to
</TABLE>
13
<PAGE>
Onde:
/t/ = data proposta para o reajuste
/to/ = data do ultimo reajuste ou, para o primeiro reajuste, 1 de abril de 1998.
HAB = valor medio da taxa de habilitacao, liquido de tributos incidentes.
HABRes = valor da taxa de habilitacao do terminal residencial, liquido de
tributos incidentes.
HABNRes = valor da taxa de habilitacao do terminal nao residencial, liquido dos
tributos incidentes.
HABTronco = valor da taxa de habilitacao do terminal tronco, liquido dos
tributos incidentes.
P = valor do Pulso.
PRes/to/ = percentual de assinantes residenciais do Plano Basico do Servico
Local observados no total de assinantes da Concessionaria, desde o ultimo
reajuste ou, para o primeiro reajuste, desde 1 de abril de 1998 .
PNRes/to/ = percentual de assinantes nao residenciais do Plano Basico do Servico
Local observados no total de assinantes da Concessionaria, desde o ultimo
reajuste ou, para o primeiro reajuste, desde 1 de abril de 1998 .
PTronco/to/ = percentual de assinantes tronco do Plano Basico do Servico Local
observados no total de assinantes da Concessionaria, desde o ultimo reajuste ou,
para o primeiro reajuste, desde 1 de abril de 1998 .
Ass = valor da Assinatura media
AssRes = valor da Assinatura Residencial, liquido de tributos incidentes.
AssNRes = valor da Assinatura Nao Residencial, liquido de tributos incidentes.
AssTronco/t/ = valor da Assinatura Tronco, liquido de tributos incidentes.
n/to/ = numero medio de pulsos faturados por assinatura do Plano Basico do
Servico Local, considerado o intervalo de tempo compreendido entre o ultimo
reajuste ou, no caso do primeiro reajuste, entre abril de 1998 e o mes anterior
a data da proposta do reajuste; e
Ft = IGP-DI\t\
------
IGP-DI\to\
14
<PAGE>
Onde:
IGP-DI = Indice Geral de Precos, Disponibilidade Interna, divulgado pela
Fundacao Getulio Vargas, ou outro indice que venha a substitui-lo.
k = fator de transferencia.
(S) 1 - O fator de transferencia sera aplicado ao longo da
concessao da seguinte forma:
I ate 31 de dezembro de 2000 sera igual a 0 (zero); e
II de 1 de janeiro de 2001 a 31 de dezembro de 2005 sera igual a
0,01 (zero virgula zero um).
(S) 2 - Caso o periodo de reajuste envolva valores diferentes de
fator de transferencia, devera ser efetuada, para sua aplicacao, uma media
ponderada considerando os meses de incidencia de cada valor de fator de
transferencia.
(S) 3 - Caso o reajuste seja efetuado em periodos superiores a doze
meses, a formula em que consta o fator de transferencia devera ser aplicada de
forma progressiva, considerando periodos de doze meses e, finalmente, o residuo
de meses, se houver.
(S) 4- Apos 2005 novos valores dos fatores de transferencia poderao
ser estabelecidos pela ANATEL quando da prorrogacao do prazo deste Contrato,
considerando as condicoes vigentes na epoca.
CLAUSULA 11.2. - As tarifas de uso de redes serao reajustadas
mediante a aplicacao das seguintes formulas:
<TABLE>
<S> <C>
24 24
SIGMA (TU-RLj\t\ x Mj\to\ ) less than or equal to (1-k) Ft SIGMA (TU-RLj\to\ x Mj\to\)
j=1 j=1
</TABLE>
Onde:
TU-RLj tarifa de uso de rede local no horario "j".
Mj\to\ - minutos dos servicos de longa distancia nacional e internacional que
utilizam a rede local da Concessionaria no horario "j", observados desde o
ultimo reajuste tarifario ou, no caso do primeiro reajuste, desde 1 de abril de
1998.
\t\ = data do reajuste proposto.
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\to\ = data do ultimo reajuste ou, no caso do primeiro reajuste, 1 de abril de
1998; e
F\t\ = IGP-DI\t\
------
IGP-DI\to\
Onde:
IGP-DI = Indice Geral de Precos, Disponibilidade Interna, divulgado pela
Fundacao Getulio Vargas, ou outro indice que venha a substitui-lo.
k = fator de transferencia.
(S) 1. - O fator de transferencia sera aplicado ao longo da
concessao da seguinte forma:
I ate 31 de dezembro de 2000 sera igual a 0 (zero);
II de 1 de janeiro de 2001 ate 31 de dezembro de 2001 sera igual a
0,05 (zero virgula zero cinco);
III de 1 de janeiro de 2002 ate 31 de dezembro de 2002 sera igual
a 0,1 (zero virgula um);
IV de 1 de janeiro de 2003 ate 31 de dezembro de 2003 sera igual a
0,15 (zero virgula quinze); e
V de 1 de janeiro de 2004 ate 31 de dezembro de 2005 sera igual a
0,2 (zero virgula dois).
(S) 2 - Caso o periodo de reajuste envolva valores diferentes de
fator de transferencia, devera ser efetuada, para sua aplicacao, uma media
ponderada considerando os meses de incidencia de cada valor de fator de
transferencia.
(S) 3 - Caso o reajuste seja efetuado em periodos superiores a doze
meses, a formula em que consta o fator de transferencia devera ser aplicada de
forma progressiva, considerando periodos de doze meses e, finalmente, o residuo
de meses, se houver.
(S) 4- Apos 2005 novos valores dos fatores de transferencia poderao
ser estabelecidos pela ANATEL quando da prorrogacao do prazo deste Contrato,
considerando as condicoes vigentes na epoca.
CAPITULO XII - DA PROTECAO DA SITUACAO ECONOMICA DA CONCESSIONARIA E DA REVISAO
DAS TARIFAS
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CLAUSULA 12.1. - Constitui pressuposto basico do presente Contrato a
preservacao, em regime de ampla competicao, da justa equivalencia entre a
prestacao e a remuneracao, vedado as partes o enriquecimento imotivado as custas
de outra parte ou dos usuarios do servico, nos termos do disposto neste
Capitulo.
(S) 1 - A Concessionaria nao sera obrigada a suportar prejuizos em
decorrencia do presente Contrato, salvo se estes decorrerem de algum dos
seguintes fatores:
I - da sua negligencia, inepcia ou omissao na exploracao do servico;
II - dos riscos normais a atividade empresarial;
III - da gestao ineficiente dos seus negocios, inclusive aquela
caracterizada pelo pagamento de custos operacionais e
administrativos incompativeis com os parametros verificados no
mercado; ou
IV - da sua incapacidade de aproveitar as oportunidades existentes
no mercado, inclusive no atinente a expansao, ampliacao e incremento
da prestacao do servico objeto da concessao.
(S) 2 - E tambem vedado o enriquecimento imotivado da Concessionaria
decorrente da apropriacao de ganhos economicos nao advindos diretamente da sua
eficiencia empresarial, em especial quando decorrentes da edicao de novas regras
sobre o servico.
(S) 3 - Fara jus a Concessionaria a recomposicao da sua situacao
inicial de encargos e retribuicoes quando circunstancias de forca maior ou
calamidades afetarem de forma significativa a exploracao do servico, observado
sempre, como parametro, o reflexo destas situacoes nos prestadores de servicos
no regime privado.
(S) 4 - Na avaliacao do cabimento da recomposicao de que trata o
paragrafo anterior sera considerada, entre outros fatores, a existencia de
cobertura do evento motivador da alteracao da situacao economica inicial pelo
Plano de Seguros previsto na clausula 23.1.
CLAUSULA 12.2. - Cabera o restabelecimento da situacao economica do
Contrato quando ficar demonstrada a inocorrencia dos fatores indicados no (S) 1
da clausula anterior, o qual dar-se-a preferencialmente pela revisao de tarifas
ou por qualquer outro mecanismo que, a criterio da ANATEL, seja considerado apto
a neutralizar a situacao verificada.
(S) 1 - A revisao das tarifas afastara qualquer outro
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mecanismo de neutralizacao do enriquecimento imotivado das partes, tornando
superado o evento ao qual ela se referia.
(S) 2 - A providencia adotada para neutralizar uma distorcao sera
unica, completa e final relativamente ao evento que lhe deu origem.
CLAUSULA 12.3. - Independentemente do disposto na clausula 12.1.,
cabera revisao das tarifas integrantes do Plano Basico do Servico Local em favor
da Concessionaria ou dos usuarios, nos termos do art. 108 da Lei n 9.472, de
1997, quando verificada uma das seguintes situacoes especificas:
I - modificacao unilateral deste Contrato imposta pela ANATEL, que
importe variacao expressiva de custos ou de receitas, para mais ou
para menos, de modo que a elevacao ou reducao de tarifas seja
imposta pela necessidade de evitar o enriquecimento imotivado de
qualquer das partes;
II - alteracao na ordem tributaria posterior a assinatura deste
Contrato que implique aumento ou reducao da lucratividade potencial
da Concessionaria;
III - ocorrencias supervenientes, decorrentes de fato do principe ou
fato da Administracao que resultem, comprovadamente, em alteracao
dos custos da Concessionaria;
IV - alteracao legislativa de carater especifico, que tenha impacto
direto sobre as receitas da Concessionaria de modo a afetar a
continuidade ou a qualidade do servico prestado; ou
V - alteracao legislativa que acarrete beneficio a Concessionaria,
inclusive a que concede ou suprime isencao, reducao, desconto ou
qualquer outro privilegio tributario ou tarifario, consoante do
previsto no (S) 3 do art. 108 da Lei n 9.472, de 1997.
(S) 1 - Nao importara na revisao de tarifas o prejuizo ou a reducao
de ganhos da Concessionaria decorrente da livre exploracao do servico em
condicoes de competicao ou da gestao ineficiente dos seus negocios.
(S) 2 - Nao sera aplicavel a hipotese de revisao prevista no inciso
II do caput desta clausula quando a alteracao na ordem tributaria implicar
criacao, supressao, elevacao ou reducao em impostos incidentes sobre a renda ou
o lucro da Concessionaria, como o Imposto sobre a
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Renda, que nao impliquem oneracao administrativa ou operacional.
(S) 3 - Nao cabera revisao de tarifas nas hipoteses previstas nesta
clausula quando os eventos ensejadores da revisao ja estiverem cobertos pelo
plano de seguros previsto na clausula 23.1.
(S) 4 - As contribuicoes da Concessionaria ao Fundo de
Universalizacao dos Servicos de Telecomunicacoes e ao Fundo para o
Desenvolvimento Tecnologico das Telecomunicacoes nao ensejarao revisao das
tarifas.
CLAUSULA 12.4. - Nao sera aplicavel a revisao de tarifas quando ficar
caracterizado que os impactos motivadores do pedido por parte da Concessionaria
puderem ser neutralizados com a eficiente exploracao do servico, pela expansao
do mercado ou pela geracao de receitas alternativas ou complementares associadas
ao objeto do presente Contrato, observadas as condicoes competitivas verificadas
no momento.
PARAGRAFO UNICO - A diminuicao da receita decorrente de descontos ou
reducao de tarifas nao dara ensejo a revisao das mesmas.
CLAUSULA 12.5. - O procedimento de revisao de tarifas podera ser
iniciado por requerimento da Concessionaria ou por determinacao da ANATEL.
(S) 1 - Quando o procedimento de revisao das tarifas for iniciado
pela Concessionaria deverao ser obedecidos os seguintes requisitos:
I - ser acompanhado de relatorio tecnico ou laudo pericial que
demonstre cabalmente o impacto da ocorrencia na formacao das tarifas
ou na estimativa de receitas da Concessionaria;
II - ser acompanhada de todos os documentos necessarios a
demonstracao do cabimento do pleito;
III - a Concessionaria devera indicar a sua pretensao de revisao
tarifaria, informando os impactos e as eventuais alternativas de
balanceamento das tarifas; e
IV - todos os custos com diligencias e estudos necessarios a plena
instrucao do pedido correrao por conta da Concessionaria.
(S) 2 - O procedimento de revisao das tarifas iniciado pela ANATEL
devera ser objeto de comunicacao a Concessionaria consignando prazo para sua
manifestacao, acompanhada de copia dos laudos e estudos realizados para
caracterizar a situacao ensejadora da revisao.
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(S) 3 - O procedimento de revisao das tarifas sera concluido em prazo
nao superior a 120 (cento e vinte) dias, ressalvada a hipotese em que seja
necessaria a prorrogacao deste para complementacao da instrucao.
(S) 4 - O requerimento devera ser aprovado pela ANATEL, devendo a
Concessionaria providenciar a ampla divulgacao dos novos valores maximos das
tarifas revistas, nos termos do que reza o presente Contrato.
CAPITULO XIII - DAS RECEITAS ALTERNATIVAS, COMPLEMENTARES E ACESSORIAS
Clausula 13.1. - A Concessionaria podera obter outras fontes
alternativas de receitas, desde que isso nao implique o descumprimento das
normas constantes do Regulamento Geral dos Servicos e das demais normas editadas
pela ANATEL.
(S) 1 - Ressalvadas as hipoteses previstas em lei especifica,
concessao ou autorizacao de servico de TV a Cabo, na mesma area referida na
clausula 2.1, nao sera outorgada nem transferida pela ANATEL a Concessionaria,
suas coligadas, controladas ou controladora, ate que seja expressamente revogada
tal vedacao.
(S) 2 - A Concessionaria, suas coligadas, controladas ou
controladoras nao poderao condicionar a oferta do servico ora concedido ao
consumo casado de qualquer outro servico, nem oferecer vantagens ao usuario em
virtude da fruicao de servicos adicionais aquele objeto do presente Contrato,
ainda que prestados por terceiros.
CLAUSULA 13.2. - A ANATEL podera determinar que a Concessionaria
ofereca aos usuarios comodidades ou utilidades correlacionadas ao objeto da
concessao, devendo neste caso as partes ajustarem os precos unitarios destes
servicos, observados os parametros de mercado e o direito a justa remuneracao.
CAPITULO XIV - DOS DIREITOS E GARANTIAS DOS USUARIOS E DEMAIS PRESTADORES
Clausula 14.1. - Respeitadas as regras e parametros constantes deste
Contrato, constituem direitos dos usuarios do servico objeto da presente
concessao:
I - o acesso ao servico e a sua fruicao dentro dos padroes de
qualidade, regularidade e eficiencia previstos no presente Contrato,
em seus anexos e nas normas vigentes;
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II - a possibilidade de solicitar a suspensao ou a interrupcao do
servico prestado pela Concessionaria;
III - o tratamento nao discriminatorio quanto as condicoes de acesso
e fruicao do servico;
IV - a obtencao de informacoes adequadas quanto as condicoes de
prestacao do servico e as tarifas e aos precos praticados;
V - a inviolabilidade e o segredo de sua comunicacao, respeitadas as
hipoteses e condicoes constitucionais e legais de quebra de sigilo
de telecomunicacoes;
VI - obter, gratuitamente, mediante solicitacao encaminhada ao
servico de atendimento dos usuarios mantido pela Concessionaria, a
nao divulgacao do seu codigo de acesso;
VII - a nao suspensao do servico sem sua solicitacao, ressalvada a
hipotese de debito diretamente decorrente de sua utilizacao ou por
descumprimento dos deveres constantes do art. 4 da Lei n 9.472, de
1997;
VIII - o conhecimento previo de toda e qualquer alteracao nas
condicoes de prestacao do servico que lhe atinjam direta ou
indiretamente;
IX - a privacidade nos documentos de cobranca e na utilizacao de
seus dados pessoais pela Concessionaria;
X - a resposta eficiente e pronta as suas reclamacoes pela
Concessionaria, nos termos do previsto na clausula 15.7.;
XI - o encaminhamento de reclamacoes ou representacoes contra a
Concessionaria junto a ANATEL e aos organismos de defesa do
consumidor;
XII - a reparacao pelos danos causados pela violacao dos seus
direitos;
XIII - ver observados os termos do Contrato de Assinatura pelo qual
tiver sido contratado o servico;
XIV - escolher livremente o prestador dos servicos telefonicos de
longa distancia nacional e internacional;
XV - ter respeitado o seu direito de portabilidade de codigos de
acesso, observadas as disposicoes do Regulamento de Numeracao
editado pela ANATEL;
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XVI - nao ser obrigado a consumir servicos ou a adquirir bens ou
equipamentos que nao sejam de seu interesse, bem como a nao ser
compelido a se submeter a condicao para recebimento do servico
objeto da presente concessao, nos termos da regulamentacao; e
XVII a substituicao de seu codigo de acesso nos termos da
regulamentacao.
(S) 1 - A Concessionaria observara o dever de zelar estritamente
pelo sigilo inerente ao servico telefonico e pela confidencialidade quanto aos
dados e informacoes, empregando meios e tecnologias que assegurem este direito
dos usuarios.
(S) 2 - A Concessionaria tornara disponiveis os recursos
tecnologicos necessarios a suspensao de sigilo de telecomunicacoes determinada
por autoridade judiciaria, na forma da regulamentacao.
CLAUSULA 14.2. - Aos demais prestadores de servicos de
telecomunicacoes serao assegurados, alem dos direitos referidos na clausula
anterior, os seguintes direitos:
I - a interconexao a rede da Concessionaria em condicoes economicas
e operacionais nao discriminatorias, sob condicoes tecnicamente
adequadas e a precos isonomicos e justos que atendam estritamente ao
necessario a prestacao do servico, observada a regulamentacao
editada pela ANATEL;
II - a receber o servico solicitado junto a Concessionaria sem
qualquer tipo de discriminacao, pelos precos de mercado ou por
precos negociados pelas partes e com as reducoes que forem
aplicaveis em funcao dos custos evitados em virtude do consumo em
larga escala, respeitada a regulamentacao; e
III - a obter todas as informacoes que sejam necessarias para a
prestacao do servico por eles operados, inclusive aquelas relativas
ao faturamento, ressalvado o direito da Concessionaria a preservacao
dos seus dados recobertos pelo sigilo empresarial, bem como os
direitos de terceiros.
(S) 1 - Os conflitos entre Concessionaria e demais prestadores serao
resolvidos administrativamente pela ANATEL, nos termos da regulamentacao a ser
por ela editada.
(S) 2 - A ANATEL acompanhara permanentemente o relacionamento entre
os prestadores que se utilizem do servico ora concedido e a Concessionaria, de
modo a coibir condutas que possam
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implicar prejuizo injusto para qualquer das partes ou que importem em violacao a
ordem economica e a livre concorrencia, comunicando, nestas hipoteses, tais
condutas ao Conselho Administrativo de Defesa Economica - CADE, apos o exercicio
de sua competencia, na forma do disposto no art. 19, inciso XIX, da Lei n
9.472, de 1997.
CLAUSULA 14.3. Observada a regulamentacao, sera assegurado o direito
de qualquer usuario a prestacao e fruicao de servicos de valor adicionado, que
devera se dar em condicoes tecnicamente adequadas e a precos isonomicos e
justos, sendo defeso a Concessionaria o estabelecimento de qualquer entrave ou
restricao a fruicao do servico ora concedido.
PARAGRAFO UNICO - Entende-se por servico de valor adicionado toda a
atividade que acrescentar ao servico objeto desta concessao, sem com ele se
confundir, novas utilidades relacionadas ao acesso, armazenamento, apresentacao,
movimentacao ou recuperacao de informacoes.
CAPITULO XV - DOS DIREITOS, GARANTIAS E OBRIGACOES DA CONCESSIONARIA
CLAUSULA 15.1. - Alem das outras obrigacoes decorrentes deste
Contrato e inerentes a prestacao do servico, incumbira a Concessionaria :
I - prestar o servico com absoluta observancia do disposto no
presente Contrato, submetendo-se plenamente a regulamentacao editada
pela ANATEL;
II - implantar todos os equipamentos e instalacoes necessarios a
prestacao, continuidade, modernizacao, ampliacao e universalizacao
do servico objeto da concessao, dentro das especificacoes constantes
do presente Contrato;
III - manter em perfeitas condicoes de operacao e funcionamento a
rede de telecomunicacoes, em quantidade, extensao e localizacoes
pertinentes e suficientes a adequada prestacao do servico;
IV - prover recursos financeiros necessarios ao atendimento dos
parametros de universalizacao e continuidade constantes do presente
Contrato e a prestacao adequada do servico;
V - prestar a ANATEL, na forma e periodicidade previstas
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na regulamentacao, contas e informacoes de natureza tecnica,
operacional, economica, financeira e contabil, bem como fornecer-lhe
todos os dados e elementos referentes ao servico que sejam
solicitados;
VI - manter os terminais de uso publico, permanentes ou temporarios,
na forma prevista neste Contrato;
VII - submeter-se a fiscalizacao da ANATEL, permitindo o acesso de
seus agentes as instalacoes integrantes do servico bem como a seus
registros contabeis;
VIII - manter registros contabeis separados por servico, bem como
ter em dia o inventario dos bens e dos componentes do ativo
imobilizado da empresa;
IX - manter sistema de informacao e atendimento do usuario, nos
termos da clausula 15.7.;
X - zelar pela integridade dos bens vinculados a prestacao do
servico;
XI - submeter a aprovacao da ANATEL, previamente a sua utilizacao, a
minuta de Contrato- Padrao a ser celebrado com os assinantes, bem
como todas as alteracoes, aditamentos ou variantes a ele aplicaveis;
XII - submeter a aprovacao previa da ANATEL os acordos operacionais
ou contratos de prestacao de servicos, de associacao ou de parceria,
que pretenda firmar com entidades estrangeiras;
XIII - encaminhar para publicacao na Biblioteca da ANATEL copia de
acordos e contratos relativos a prestacao do servico ora concedido
com prestadores nacionais e estrangeiros de servicos de
telecomunicacoes;
XIV - divulgar, diretamente ou atraves de terceiros, o codigo de
acesso dos seus assinantes e dos demais assinantes de prestadores do
Servico Telefonico Fixo Comutado, em regime publico e privado, na
area de concessao, com exclusao daqueles que requererem
expressamente a omissao dos seus dados pessoais;
XV - fornecer, em prazos e a precos razoaveis e de forma nao
discriminatoria, a relacao de seus assinantes a quem queira divulga-
la;
XVI - respeitar rigorosamente o dever de sigilo e confidencialidade
das telecomunicacoes, observadas as
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prescricoes legais e contratuais;
XVII - respeitar a privacidade dos assinantes com relacao aos
documentos de cobranca e a todas as informacoes pessoais a eles
referentes;
XVIII - cumprir, as suas proprias expensas, observado o disposto na
clausula 7.2 deste Contrato, todas as metas de universalizacao
expressamente constantes deste Contrato;
XIX - implementar projetos de expansao e universalizacao do servico
que venham a ser determinados pela ANATEL, segundo patamares de
ressarcimento, prazos e condicoes de implementacao estabelecidos,
observado o disposto na clausula 7.3.;
XX - submeter previamente a ANATEL toda e qualquer alteracao que
pretenda fazer nos seus estatutos quanto a cisao, fusao,
transformacao, incorporacao, bem como a transferencia de controle ou
alteracao no capital social;
XXI - assegurar a qualquer outro prestador de servico de
telecomunicacoes a interconexao com sua rede, observadas a
regulamentacao especifica e as normas do presente Contrato;
XXII - tornar disponivel aos demais prestadores do Servico
Telefonico Fixo Comutado os servicos de faturamento e arrecadacao,
cobrando por estes precos justos e compativeis nos termos do
presente Contrato e da regulamentacao;
XXIII - observar todos os direitos dos demais prestadores de
servicos de telecomunicacoes, omitindo-se de praticar qualquer
conduta discriminatoria ou voltada a obstar a atividade destes;
XXIV - utilizar, sempre que exigido pela regulamentacao,
equipamentos com certificacao expedida ou aceita pela ANATEL;
XXV - observar as normas e os padroes tecnicos vigentes no Brasil,
omitindo-se de qualquer pratica discriminatoria em relacao a bens e
equipamentos produzidos no pais;
XXVI - colocar a disposicao das autoridades e dos agentes da defesa
civil, nos casos de calamidade publica, todos os meios, sistemas e
disponibilidades que lhe forem solicitados com vistas a dar-lhes
suporte ou a amparar as
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populacoes atingidas;
XXVII - atender com prioridade o Presidente da Republica, seus
representantes protocolares, sua comitiva e pessoal de apoio, bem
como os Chefes de Estado estrangeiros, quando em visitas ou
deslocamentos oficiais pelo territorio brasileiro, tornando
disponiveis os meios necessarios para adequada comunicacao destas
autoridades, observada a regulamentacao editada pela ANATEL;
XXVIII - arcar com o onus fixado pela ANATEL no caso de prorrogacao
do prazo da concessao, nos termos do art. 207, (S) 1, da Lei n
9.472, de 1997, e da clausula 3.3.;
XXIX - pagar todas as taxas de fiscalizacao e funcionamento das suas
instalacoes, na forma da regulamentacao;
XXX - publicar anualmente, independente do regime juridico a que
esteja sujeita, balanco e demonstracoes financeiras levantadas ao
final de cada exercicio social, observadas as disposicoes da
legislacao vigente e da regulamentacao editada pela ANATEL;
XXXI - observar as normas vigentes no pais quanto a utilizacao de
mao-de-obra estrangeira, inclusive nos cargos de maior qualificacao;
XXXII - indenizar os usuarios pelos danos efetivamente decorrentes
da nao prestacao do servico que seria exigivel frente aos parametros
de continuidade e as metas de universalizacao previstas no presente
Contrato;
XXXIII - nao despender com contratos de prestacao de servicos de
gerencia, inclusive assistencia tecnica, com entidades estrangeiras,
em relacao a receita anual do Servico Telefonico Fixo Comutado,
liquida de impostos e contribuicoes, valores superiores a:
a) 1% (um por cento) ao ano, ate 31/12/2000;
b) 0,5% (zero virgula cinco por cento) ao ano, de 01/01/2001 a
31/12/2002; e
c) 0,2% (zero virgula dois por cento) ao ano, a partir de
01/01/2003;
XXXIV dar cumprimento a acordos firmados entre o Brasil e outros
paises e organismos internacionais, na
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forma regulamentada pela ANATEL; e
XXXV dar cumprimento aos contratos celebrados com a TELEBRAS, cujos
objetos sejam a prestacao de servicos pelo Centro de Pesquisa e
Desenvolvimento CPqD ou seu sucessor.
PARAGRAFO UNICO As decisoes relativas ao inciso XXXIII desta
clausula em contratos de prestacao de servicos e assistencia tecnica, entre a
Concessionaria e terceiros vinculados aos acionistas controladores, deverao ser
tomadas em assembleia geral extraordinaria, devendo a Concessionaria fazer
constar no seu estatuto social, ate 31.12.98, que as acoes preferenciais terao
direito a voto nessas decisoes, sem prejuizo do disposto no (S) 1 do artigo 115
da Lei n 6.404, de 15 de dezembro de 1976.
CLAUSULA 15.2. - Sem prejuizo das demais disposicoes constantes
deste Contrato e das garantias asseguradas em lei constituem direitos da
Concessionaria:
I - explorar o servico concedido dentro de sua estrategia
empresarial, definindo livremente seus investimentos, respeitadas a
regulamentacao editada pela ANATEL e as disposicoes deste Contrato;
II - indicar representante para acompanhar a atividade
fiscalizatoria da ANATEL;
III - interromper, nos termos da clausula 8.3 deste Contrato, ou nao
atender a solicitacao de prestacao de servico para o assinante
inadimplente com as suas obrigacoes contratuais com a
Concessionaria;
IV - solicitar a instauracao do procedimento de arbitragem nas
hipoteses e na forma prescrita no Capitulo XXX deste Contrato;
V - ter preservadas as condicoes economicas de exploracao do servico
contra alteracoes que importem em enriquecimento imotivado da Uniao
ou dos usuarios nos termos do disposto no Capitulo XII;
VI - solicitar a revisao das tarifas aplicadas ao servico concedido,
na forma do disposto neste Contrato;
VII - solicitar da ANATEL a confidencialidade de informacao colhida
no exercicio da atividade fiscalizatoria, nos termos do disposto
neste Contrato;
VIII - empregar na execucao dos servicos equipamentos e
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infra-estrutura que nao lhe pertencam, observado o disposto na
clausula 21.1. deste Contrato; e
IX - contratar com terceiros o desenvolvimento de atividades
inerentes, acessorias ou complementares ao servico, bem como a
implementacao de projetos associados.
CLAUSULA 15.3. - Durante a vigencia do Contrato, a Concessionaria sera
a unica responsavel, perante terceiros, pelos atos praticados pelo seu pessoal,
prepostos e contratados, na prestacao do Servico Telefonico Fixo Comutado, bem
como pelo uso dos equipamentos, instalacoes ou redes, excluidas a Uniao e a
ANATEL de quaisquer reclamacoes e/ou indenizacoes.
CLAUSULA 15.4. - A Concessionaria nao podera opor embaracos a obras de
interesse publico, qualquer que seja a sua natureza, sempre que se tornar
necessaria a remocao de instalacoes ou de redes telefonicas para viabilizacao de
intervencoes promovidas, direta ou indiretamente, por qualquer orgao ou entidade
da Administracao publica.
CLAUSULA 15.5. - A Concessionaria devera pactuar diretamente com cada
Prefeitura Municipal das areas de exploracao do servico bem como com as demais
Concessionarias de servicos publicos as condicoes para colocacao de postes e
cruzetas para suspensao de suas linhas e cabos aereos, bem como dutos e
canalizacoes subterraneos destinados a passagem de cabos sob ruas e logradouros
publicos.
(S) 1 - A Concessionaria diligenciara junto aos titulares de bens
publicos ou privados sobre ou sob os quais tenha que passar dutos ou
canalizacoes ou ainda instalar suportes para colocacao dos mesmos, obtendo o
respectivo consentimento ou servidao para tal fim.
(S) 2 - A Concessionaria devera promover junto as respetivas
autoridades municipais as tratativas necessarias ao estabelecimento das
condicoes para superacao das interferencias na rede necessaria a prestacao do
servico, inclusive quanto ao corte e poda de arvores.
CLAUSULA 15.6. - Nos termos do disposto no art. 73 da Lei n 9.472, de
1997, a Concessionaria podera utilizar postes, dutos, condutos e servidoes
pertencentes ou controlados por outros prestadores de servicos de
telecomunicacoes ou de outros servicos de interesse publico.
(S) 1 - A utilizacao dos meios referidos no caput desta clausula
devera ser realizada de forma nao discriminatoria e a precos justos e razoaveis.
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(S) 2 - A Concessionaria devera tornar disponivel aos demais
prestadores de servicos de telecomunicacoes, classificados pela ANATEL como de
interesse coletivo, os meios de sua propriedade ou por ela controlados,
referidos no caput desta clausula, respeitadas as mesmas condicoes previstas no
paragrafo anterior.
(S) 3 - Sempre que a Concessionaria nao chegar a um acordo com os
demais prestadores de servicos acerca da utilizacao dos meios referidos nesta
clausula, cabera a ANATEL, isoladamente ou em conjunto com os demais orgaos
reguladores envolvidos, definir as condicoes desta utilizacao.
CLAUSULA 15.7. - A Concessionaria mantera durante todo o prazo da
presente concessao, central de informacao e de atendimento do usuario,
funcionando 24 (vinte e quatro) horas por dia, capacitada para receber e
processar solicitacoes, queixas e reclamacoes encaminhadas pelos usuarios
pessoalmente ou por qualquer meio de comunicacao a distancia.
(S) 1 - A Concessionaria devera divulgar a todos os usuarios os
enderecos e codigos de acesso a sua central de informacao e de atendimento do
usuario, os quais deverao constar necessariamente do Contrato - Padrao com eles
firmado para prestacao do servico.
(S) 2 - A Concessionaria devera tornar disponivel e divulgar codigo
de acesso facil e gratuito para o encaminhamento de solicitacoes dos usuarios
por via telefonica.
(S) 3 - Todas as solicitacoes, reclamacoes ou queixas encaminhadas
pelos usuarios, por qualquer meio, deverao receber um numero de ordem, que sera
informado ao interessado para possibilitar seu acompanhamento.
(S) 4 - O usuario sera informado pela Concessionaria nos prazos
definidos no Plano Geral de Metas de Qualidade, quanto as providencias adotadas
em funcao da sua solicitacao, reclamacao ou queixa.
(S) 5 - Caso a ANATEL constate existir dificuldade de acesso pelos
usuarios da central de informacao e de atendimento podera determinar a
Concessionaria a ampliacao dos meios de acesso disponiveis, sob pena de
considerar desatendida a obrigacao prevista nesta clausula.
CLAUSULA 15.8 - Na contratacao de servicos e na aquisicao de
equipamentos e materiais vinculados ao servico objeto deste Contrato, a
Concessionaria se obriga a considerar ofertas de fornecedores independentes,
inclusive os nacionais, e basear suas decisoes, com respeito as diversas ofertas
apresentadas, no cumprimento de criterios
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objetivos de preco, condicoes de entrega e especificacoes tecnicas estabelecidas
na regulamentacao pertinente.
(S) 1 - Nos casos em que haja equivalencia entre ofertas, a empresa
Concessionaria se obriga a utilizar como criterio de desempate, a preferencia a
servicos oferecidos por empresas situadas no Pais, equipamentos e materiais
produzidos no Pais, e, entre eles, aqueles com tecnologia nacional. A
equivalencia referida nesta clausula sera apurada quando, cumulativamente:
I - o preco nacional for menor ou igual ao preco do importado, posto
no territorio nacional, incluidos os tributos incidentes;
II - o prazo de entrega for compativel com as necessidades do
servico; e
III - sejam satisfeitas as especificacoes tecnicas estabelecidas na
regulamentacao pertinente e possuam certificacao expedida ou aceita
pela ANATEL, quando aplicavel.
(S) 2 - Compreende-se como servicos aqueles relacionados com a
pesquisa e desenvolvimento, planejamento, projeto, implantacao e instalacao
fisica, operacao, manutencao, supervisao e testes de avaliacao de sistemas de
telecomunicacoes.
(S) 3 - A operacionalizacao do disposto nesta clausula sera objeto
de regulamentacao por parte da ANATEL, incluindo sancoes aplicaveis.
CAPITULO XVI - DAS OBRIGACOES E PRERROGATIVAS DA ANATEL
CLAUSULA 16.1. - Alem das outras prerrogativas inerentes a sua funcao
de orgao regulador e das demais obrigacoes decorrentes do presente Contrato,
incumbira a ANATEL:
I - acompanhar e fiscalizar a prestacao do servico e a conservacao
dos bens reversiveis, visando ao atendimento das normas,
especificacoes e instrucoes estabelecidas neste Contrato e em seus
anexos;
II - proceder as vistorias para a verificacao da adequacao das
instalacoes e equipamentos, determinando as necessarias correcoes,
reparos, remocoes, reconstrucoes ou substituicoes, as expensas da
Concessionaria;
III - regulamentar permanentemente a prestacao do servico
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concedido;
IV - intervir na execucao do servico quando necessario, a fim de
assegurar sua regularidade e o fiel cumprimento do Contrato e das
normas legais pertinentes;
V - aplicar as penalidades previstas na regulamentacao do servico e,
especificamente, neste Contrato;
VI - deliberar sobre os Planos Alternativos de Servico Local
apresentados pela Concessionaria;
VII - autorizar o reajuste e proceder a revisao das tarifas, nos
termos e conforme o disposto neste Contrato;
VIII - atuar dentro dos limites previstos neste Contrato com vista a
impedir o enriquecimento imotivado das partes, nos termos deste
Contrato;
IX - zelar pela boa qualidade do servico, receber, apurar e
solucionar queixas e reclamacoes dos usuarios, cientificando-os, em
ate noventa dias, das providencias tomadas com vista a repressao de
infracoes a seus direitos;
X - declarar extinta a Concessao nos casos previstos neste Contrato;
XI - zelar pela garantia de interconexao, dirimindo eventuais
pendencias surgidas entre a Concessionaria e demais prestadores;
XII - zelar pelo atendimento das metas de universalizacao previstas
neste Contrato, e as metas que vierem a ser estabelecidas nos Planos
de Metas posteriores;
XIII - acompanhar permanentemente o relacionamento entre a
Concessionaria e demais prestadores de servicos de telecomunicacoes,
dirimindo conflitos surgidos entre eles;
XIV - coibir condutas da Concessionaria contrarias ao regime de
competicao, observadas as competencias legais do CADE;
XV - propor, por solicitacao da Concessionaria, ao Presidente da
Republica, por intermedio do Ministerio das Comunicacoes, a
declaracao de utilidade publica para fins de desapropriacao ou
instituicao de servidao administrativa, dos bens necessarios a
implantacao ou
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manutencao do servico objeto deste Contrato;
XVI - exercer a atividade fiscalizatoria do servico nos termos do
disposto neste Contrato; e
XVII - arrecadar as taxas relativas ao FISTEL, adotando as
providencias previstas na legislacao vigente.
CAPITULO XVII - DA CONCESSIONARIA
CLAUSULA 17.1. - A Concessionaria e empresa constituida segundo as
leis brasileiras, sob natureza de sociedade por acoes, tendo por finalidade
exclusiva a exploracao do servico objeto da presente concessao, ressalvados os
servicos nos termos do disposto no (S) 3 do art. 207 da Lei n 9.472, de 1997.
PARAGRAFO UNICO - Se aprovada alteracao estatutaria da Concessionaria,
os documentos que a formalizarem serao encaminhados a ANATEL para arquivamento,
passando a fazer parte integrante do presente Contrato.
CLAUSULA 17.2. - A Concessionaria e seus controladores se obrigam a
manter, durante todo o prazo da concessao e de sua prorrogacao, no minimo, todas
as condicoes de prestacao do servico e de capacitacao existentes a epoca da
entrada em vigencia do presente Contrato.
CLAUSULA 17.3. A Concessionaria e seus controladores se obrigam a
assegurar, durante o prazo da concessao e sua prorrogacao, a efetiva existencia,
em territorio nacional, dos centros de deliberacao e implementacao das decisoes
estrategicas, gerenciais e tecnicas envolvidas no cumprimento do presente
Contrato, inclusive fazendo refletir tal obrigacao na composicao e nos
procedimentos decisorios de seus orgaos de administracao.
PARAGRAFO UNICO A Concessionaria devera inserir, no seu estatuto, ate
31 de dezembro de 1998, disposicoes que garantam o cumprimento do disposto no
caput desta clausula.
CAPITULO XVIII - DA TRANSFERENCIA DA CONCESSAO E DO CONTROLE DA CONCESSIONARIA
Clausula 18.1. - A transferencia da concessao ou do controle, direto
ou indireto, da Concessionaria so sera autorizada pela ANATEL, observados o
Plano Geral de Outorgas e o art. 202 da Lei n 9.472, de 1997, quando:
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I - o cessionario preencha todos os requisitos estabelecidos nos
termos do art. 200 da Lei n 9.472, de 1997; e
II - a medida nao prejudique a competicao e nao coloque em risco a
execucao do Contrato e as normas gerais de protecao a ordem
economica.
PARAGRAFO UNICO - O descumprimento de qualquer disposicao constante
desta clausula importara na caducidade da presente concessao.
CLAUSULA 18.2. - Poderao ser livremente dadas em caucao as acoes da
Concessionaria cuja transferencia nao altere seu controle.
PARAGRAFO UNICO - No caso de caucao de acoes que importem oneracao do
patrimonio da Concessionaria, deverao ser previstos nos contratos de
financiamento dispositivos que submetam os credores, em caso de execucao, as
regras constantes deste Capitulo.
CAPITULO XIX - DO REGIME DE FISCALIZACAO
CLAUSULA 19.1. - A ANATEL exercera a fiscalizacao do servico ora
concedido a fim de assegurar o cumprimento dos pressupostos de universalizacao e
continuidade inerentes ao regime publico de sua prestacao, bem como para zelar
pelo cumprimento das metas e dos compromissos constantes do presente Contrato.
(S) 1 - A fiscalizacao a ser exercida pela ANATEL compreendera a
inspecao e o acompanhamento das atividades, equipamentos e instalacoes da
Concessionaria, implicando amplo acesso a todos os dados e informacoes da
Concessionaria ou de terceiros.
(S) 2 - As informacoes colhidas no exercicio da atividade
fiscalizatoria serao publicadas na Biblioteca, a excecao daquelas que, por
solicitacao da Concessionaria, sejam consideradas pela ANATEL como de carater
confidencial.
(S) 3 - As informacoes que venham a ser consideradas de carater
confidencial nos termos do paragrafo anterior, somente serao utilizadas nos
procedimentos correlacionados ao presente Contrato, respondendo a ANATEL e
aqueles por ela indicados por qualquer divulgacao, ampla ou restrita, de tais
informacoes fora deste ambito de utilizacao.
CLAUSULA 19.2. - A Concessionaria, por intermedio de representante
indicado, podera acompanhar toda e qualquer atividade da fiscalizacao da ANATEL,
nao podendo obstar ou impedir a atuacao da
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fiscalizacao, sob pena de incorrer nas penalidades previstas neste Contrato.
CAPITULO XX - DA PRESTACAO DE CONTAS PELA CONCESSIONARIA
Clausula 20.1. - Na forma da regulamentacao, a Concessionaria devera
enviar periodicamente a ANATEL relatorios estatisticos e circunstanciados de
todo o servico prestado, contendo, entre outros elementos, os indicadores de
expansao e abrangencia da rede de telefonia, bem como noticiando o estagio
tecnologico dos equipamentos utilizados.
CAPITULO XXI - DOS BENS VINCULADOS A CONCESSAO
Clausula 21.1. - Integram o acervo da presente concessao, sendo a ela
vinculados, todos os bens pertencentes ao patrimonio da Concessionaria e que
sejam indispensaveis a prestacao do servico ora concedido, especialmente aqueles
qualificados como tal no Anexo 01 - Qualificacao dos Bens Reversiveis da
Prestacao do Servico Telefonico Fixo Comutado Local.
(S) 1 - Integram tambem o acervo dos bens vinculados a concessao as
autorizacoes de uso do espectro de radiofrequencias que lhe sejam outorgadas e,
quando couber, o direito de uso de posicoes orbitais, observado o disposto nos
artigos 48 e 161 da Lei n 9.472, de 1997, e ainda o constante da clausula 4.1.
do presente Contrato.
(S) 2 - Em relacao aos bens vinculados a concessao, a Concessionaria
somente podera empregar diretamente na prestacao do servico ora concedido
equipamentos, infra-estrutura, logiciarios ou qualquer outro bem que nao sejam
de sua propriedade mediante previa e expressa anuencia da ANATEL, que podera
dispensar tal exigencia nos casos e hipoteses dispostas na regulamentacao.
(S) 3 - Havendo risco a continuidade dos servicos ou impedimento da
reversao dos bens vinculados a concessao, a ANATEL podera negar autorizacao para
utilizacao de bens de terceiros ou exigir que o respectivo Contrato contenha
clausula pela qual o proprietario se obriga, em caso de extincao da concessao, a
manter os Contratos e em subrogar a ANATEL nos direitos dele decorrentes.
CAPITULO XXII - DO REGIME DE REVERSAO
CLAUSULA 22.1. - Quando da extincao da concessao
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reverterao automaticamente a ANATEL todos os bens vinculados a concessao na
forma do Capitulo XXI supra, resguardado a Concessionaria o direito as
indenizacoes previstas na legislacao e neste Contrato.
PARAGRAFO UNICO - Ate 180 (cento e oitenta) dias apos o advento da
extincao da concessao sera procedida uma vistoria dos bens que a integram e
lavrado um Termo de Devolucao e Reversao dos Bens, com indicacao detalhada do
estado de conservacao dos mesmos, facultado o acompanhamento por
representante(s) da Concessionaria.
CLAUSULA 22.2. - A Concessionaria se obriga a entregar os bens
reversiveis em perfeitas condicoes de operacionalidade, utilizacao e manutencao,
sem prejuizo do desgaste normal resultante do seu uso.
PARAGRAFO UNICO - Os bens reversiveis serao transferidos a ANATEL
livres de quaisquer onus ou encargos, observada a hipotese do paragrafo 2 da
clausula seguinte.
CLAUSULA 22.3. - A reversao dos bens de que trata o Capitulo XXI
supra, ao final do prazo contratual, sera feita sem indenizacao, ressalvado o
disposto nesta clausula.
(S) 1 - Somente cabera indenizacao em favor da Concessionaria caso
existam, ao final da Concessao, bens ainda nao integralmente amortizados, cuja
aquisicao tenha sido previamente autorizada pela ANATEL, ou adquiridos antes da
assinatura deste Contrato, com o objetivo de garantir a continuidade e a
atualidade do servico concedido.
(S) 2 - Alternativa ou supletivamente a indenizacao disposta no
paragrafo anterior, a ANATEL podera admitir a transferencia de bens que tenham
sido dados em garantia do seu proprio financiamento, subrogando-se na parcela
financiada ainda inadimplida.
CLAUSULA 22.4. - Ao final da Concessao a ANATEL procedera a avaliacao
dos bens referidos na clausula 21.1, podendo recusar a reversao de bens que
considere prescindiveis ou inaproveitaveis para aplicacao na exploracao do
servico, garantido o direito da Concessionaria ao contraditorio, inclusive
atraves da elaboracao e apresentacao, as suas expensas, de laudos ou estudos
demonstradores da necessidade de reversao.
PARAGRAFO UNICO - Caso a Concessionaria nao concorde com a decisao da
ANATEL quanto ao disposto nesta clausula admitir-se-a o recurso ao processo de
solucao de divergencias prescrito neste Contrato.
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CAPITULO XXIII - DO PLANO DE SEGUROS
CLAUSULA 23.1. - Durante todo o prazo de vigencia da concessao, a
Concessionaria devera manter com Companhia Seguradora de porte compativel com o
objeto segurado, registrada junto aos orgaos regulatorios do setor, as seguintes
apolices de seguros necessarias para garantir a efetiva e abrangente cobertura
de riscos inerentes ao desenvolvimento de todas as atividades contempladas no
presente Contrato:
I - seguro do tipo "todos os riscos" para danos materiais cobrindo a
perda, destruicao ou dano em todos ou em qualquer bem integrante da
concessao, devendo tal seguro contemplar todas as coberturas
compreendidas de acordo com os padroes internacionais;
II - seguro de preservacao de condicoes economicas para continuidade
da exploracao do servico, cobrindo, no minimo, os custos
operacionais contra variacoes nas receitas da Concessionaria,
decorrentes de sinistros ou modificacoes nas condicoes de exploracao
do Contrato que nao sejam cobertas pelos seguros de danos materiais,
desde que a pactuacao desta modalidade de seguro seja admitida pelas
normas brasileiras e expressamente autorizada pelo Instituto de
Resseguros do Brasil IRB ou orgao equivalente; e
III - seguro garantia do cumprimento das obrigacoes relativas a
qualidade e a universalizacao previstas neste Contrato ("Performance
Bond", carta de credito e valor mantido em caucao) no valor
correspondente a 10% do montante de investimentos estimado a cada
ano para cumprimento das metas previstas no presente Contrato.
(S) 1 - A Concessionaria devera fazer constar das apolices de seguro
a obrigacao de a Seguradora informar, por escrito, com antecedencia minima de 10
(dez) dias, a Concessionaria e a ANATEL, quaisquer fatos que possam implicar o
cancelamento total ou parcial das apolices contratadas, reducao de coberturas,
aumento de franquias ou reducao dos valores segurados.
(S) 2 - As apolices emitidas em atendimento ao disposto nesta
clausula nao poderao conter obrigacoes, restricoes ou disposicoes que colidam
com as disposicoes do presente Contrato ou com a regulamentacao e deverao conter
declaracao expressa da Seguradora que conhece integralmente o presente ajuste,
inclusive no tocante aos limites dos direitos da Concessionaria.
(S) 3 - No caso de descumprimento, pela Concessionaria,
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da obrigacao de manter em plena vigencia as apolices de seguro previstas, a
ANATEL, independentemente da sua faculdade de decretar a intervencao ou a
caducidade da presente concessao, podera proceder a contratacao e ao pagamento
direto dos premios respectivos, correndo os custos por conta da Concessionaria.
(S) 4- Anualmente, ate o final do mes de Janeiro, a Concessionaria
devera apresentar certificado emitido pela(s) seguradora(s) confirmando que
todos os premios vencidos no ano precedente encontram-se quitados e que as
apolices contratadas estao em plena vigencia ou foram renovadas.
(S) 5 - As apolices referidas nesta clausula deverao obedecer aos
seguintes prazos de apresentacao e vigencia:
I a apolice referida no inciso I do caput desta clausula devera ser
apresentada em ate 90 (noventa) dias, contados da assinatura do presente
Contrato e tera vigencia imediata;
II a apolice referida no inciso II do caput desta clausula devera ser
apresentada ate 30 de novembro de 1999, com vigencia a partir de 1 de janeiro
de 2000; e
III a apolice referida no inciso III do caput desta clausula devera
ser apresentada ate 30 de novembro de 2000, com vigencia a partir de 1 de
janeiro de 2001.
(S) 6 - A ANATEL podera alterar as coberturas ou os prazos de
apresentacao das apolices referidas nesta clausula, com vistas a adequar tais
exigencias a regulamentacao editada pela Superintendencia de Seguros Privados
SUSEP ou as condicoes estabelecidas pelo Instituto de Resseguros do Brasil IRB,
bem como quando forem editadas normas que obstem a contratacao dos seguros aqui
referidos ou quando nao existam condicoes de mercado amplo e competitivo que
permitam a sua contratacao a custos razoaveis.
CAPITULO XXIV - DA INTERCONEXAO
Clausula 24.1. - A Concessionaria tem obrigacao de permitir,
facilitar, tornar disponivel e efetivar a interconexao, a rede por ela operada,
de redes de outros prestadores de servicos de telecomunicacoes, em regime
publico ou privado, sempre que estes o solicitem, observando e fazendo observar
as normas e regulamentos editados pela ANATEL a este respeito.
CLAUSULA 24.2. - As tarifas de uso de rede vigentes na assinatura do
presente Contrato sao aquelas constantes da Portaria n.
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2.505, de 20 de dezembro de 1996, do Ministerio das Comunicacoes e poderao ser
atualizadas e revistas consoante o disposto neste Contrato e na regulamentacao.
CLAUSULA 24.3. A Concessionaria tera os mesmos direitos e obedecera as
mesmas condicoes de interconexao a que estejam sujeitos os demais prestadores.
PARAGRAFO UNICO - A Concessionaria devera tornar disponivel para
interconexao os elementos da rede com maior nivel de desagregacao tecnicamente
possivel, observada a regulamentacao da ANATEL.
CAPITULO XXV - DAS SANCOES
CLAUSULA 25.1. - Na execucao do presente Contrato, a Concessionaria se
sujeita as seguintes sancoes, que serao aplicadas mediante decisao fundamentada
da ANATEL, assegurado o seu direito de defesa nos termos do disposto no seu
Regimento Interno e sem prejuizo das demais penalidades previstas na
regulamentacao:
I - por violacao das disposicoes do presente Contrato que importe em
nao atendimento de metas de universalizacao; multa de ate
R$50.000.000,00 (cinquenta milhoes de reais);
II - por ato ou omissao contrario as disposicoes constantes deste
Contrato que acarrete prejuizo a competicao no setor de
telecomunicacoes; multa de ate R$ 50.000.000,00 (cinquenta milhoes
de reais);
III - por violacao as disposicoes contratuais que importe em nao
cumprimento das metas e parametros de qualidade na prestacao do
servico; multa de ate R$40.000.000,00 (quarenta milhoes de reais);
IV - por outro ato ou omissao nao enquadrado nos incisos anteriores
que importe em violacao aos direitos do usuario definidos neste
Contrato ou acarrete-lhe prejuizo; multa de ate R$30.000.000,00
(trinta milhoes de reais);
V por ato ou omissao que viole o disposto na clausula 15.8 deste
Contrato, referente a contratacao de servicos e aquisicao de
equipamentos e materiais produzidos no Pais; multa de R$
30.000.000,00 (trinta milhoes de reais);
VI - por qualquer ato ou omissao que traga obice ou dificuldade ao
exercicio da atividade fiscal da ANATEL
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prevista neste Contrato; multa de ate R$20.000.000 (vinte milhoes de
reais);
VII - por ato, omissao ou negligencia que coloque em risco a
seguranca das instalacoes; multa de ate R$15.000.000,00 (quinze
milhoes de reais);
VIII - por ato ou omissao que acarrete dano ou ponha em risco bens
ou equipamentos vinculados a concessao; multa de ate R$
10.000.000,00 (dez milhoes de reais); e
IX - pelo descumprimento de qualquer obrigacao prevista
expressamente neste Contrato, exceto as indicadas nos incisos
anteriores, cujas sancoes ja estao neles estabelecidas; multa de ate
R$ 10.000.000,00 (dez milhoes de reais).
(S) 1 - A infracao prescrita no inciso I desta clausula estara
caracterizada quando a Concessionaria nao cumprir, nos prazos previstos neste
Contrato, suas obrigacoes quanto a expansao do servico, ampliacao da prestacao
do servico, atraves de telefones de uso publico e atendimento a localidades,
consoante o disposto no Plano Geral de Metas de Universalizacao e no Anexo 02
Metas de Universalizacao, integrante do presente Contrato, e a sancao sera
aplicada levando em consideracao, alem dos principios gerais constantes deste
Capitulo, os seguintes fatores:
a) a diferenca entre o estagio de implementacao verificado e a meta
definida no Contrato;
b) a possibilidade de recuperacao do cronograma de implementacao as
expensas da Concessionaria;
c) o prejuizo para a politica refletida no Plano Geral de Metas para
a Universalizacao;
d) os danos trazidos aos beneficiarios diretos das metas
desatendidas; e
e) eventuais circunstancias de ordem tecnica ou economica que possam
atenuar a responsabilidade da Concessionaria, sem elidi-la.
(S) 2 - A infracao prescrita no inciso II supra tera sua gravidade
definida exclusivamente em funcao dos criterios gerais prescritos na clausula
25.2 e sera caracterizada pela conduta da Concessionaria que, direta ou
indiretamente, possa importar prejuizo a competicao no setor, especialmente:
a) oferecimento de obice ou dificuldade a opcao por outro
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prestador do servico concedido ou do servico de longa distancia
nacional e internacional;
b) recusa em dar interconexao a prestador de servico de
telecomunicacoes;
c) oferecimento de obices ou dificuldades a atividade de prestadores
de servico de valor adicionado;
d) condicionamento da prestacao do servico concedido ou oferecimento
de vantagens em funcao de aquisicao, pelo usuario, de servico
estranho ao presente Contrato;
e) execucao de qualquer servico de telecomunicacoes que nao seja
objeto de concessao ou autorizacao outorgadas pela ANATEL em seu
favor;
f) pela nao preservacao dos niveis de qualidade praticados quanto a
interconexao; e
g) procrastinacao na entrega de informacoes essenciais a atividade
dos demais prestadores, especialmente no que tange as bases
cadastrais.
(S) 3 - A infracao prescrita no inciso III desta clausula sera
caracterizada pela prestacao reiterada do servico concedido aquem dos parametros
de qualidade definidos no Plano Geral de Metas de Qualidade ou pela comprovada
violacao dos indicadores referidos no Capitulo VI, sendo na primeira hipotese
considerada infracao grave, especialmente:
a) a nao alocacao na operacao e manutencao do servico dos recursos
humanos e materiais necessarios a preservacao dos padroes minimos de
qualidade; e
b) negligencia na modernizacao da rede que afete a qualidade do
servico.
(S) 4 - A infracao prescrita no inciso IV supra tera sua escala de
gravidade definida em funcao do numero de usuarios atingidos e dos prejuizos
causados, ficando caracterizada pela violacao, comissiva ou omissiva, direta ou
indireta, de obrigacao prevista neste Contrato, que nao implique afronta aos
deveres quanto a universalizacao e qualidade, mas que acarrete violacao dos
direitos dos usuarios, especialmente:
a) a interrupcao na prestacao dos servicos por prazo superior ao
estabelecido no Plano de Metas de Qualidade, salvo a ocorrencia das
situacoes previstas no paragrafo unico da clausula 6.3;
b) a recusa em prestar o servico concedido a qualquer
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interessado;
c) o nao cumprimento do dever de prestar informacoes ao usuario;
d) a violacao do sigilo de telecomunicacoes, fora das hipoteses
legais, ainda que praticada por terceiros nas instalacoes sob
responsabilidade da Concessionaria;
e) o nao cumprimento do dever de fornecer gratuitamente listas
telefonicas;
f) a nao manutencao de central de informacao e de atendimento ao
usuario na forma prescrita neste Contrato;
g) a cobranca de tarifa ou preco em desacordo com as regras
estipuladas neste Contrato e na regulamentacao; e
h) a restricao ao exercicio do direito a livre escolha entre planos
de servico;
(S) 5 - A sancao prevista no inciso V sera caracterizada pela
verificacao de violacao da obrigacao contida na clausula 15.8 e tera sua
gravidade definida conforme dispuser a regulamentacao.
(S) 6 - A infracao prescrita no inciso VI supra tera sua gravidade
definida em funcao da relevancia da atividade fiscal obstada e sera
caracterizada pela violacao, comissiva ou omissiva, direta ou indireta, da
Concessionaria ou de seus prepostos, que impeca ou dificulte a atividade de
fiscalizacao exercida pela ANATEL, seus prepostos, agentes ou mesmo pelos
usuarios, especialmente:
a) recusa da Concessionaria em atender pedido de informacao
formulado pela ANATEL relacionada ao servico concedido ou aos bens a
ele afetos;
b) oferecimento de entrave a atuacao dos agentes de fiscalizacao da
ANATEL;
c) omissao em cumprir obrigacao de publicidade prevista neste
Contrato, ou na regulamentacao; e
d) nao envio ou envio intempestivo de qualquer informacao, dado,
relatorio ou documento que, por forca da regulamentacao ou deste
Contrato, deveria ser remetida a ANATEL.
(S) 7 - A infracao prescrita no inciso VII desta clausula tera sua
gravidade definida em funcao da proporcao do risco ensejado e sera caracterizada
pela conduta da Concessionaria que afronte as regras
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dispostas no presente Contrato e na regulamentacao, viole as normas e padroes
tecnicos de seguranca ou que coloquem em risco as instalacoes afetas ao servico
concedido, especialmente:
a) o emprego, no servico concedido, de equipamento nao certificado
pela ANATEL, quando exigida a certificacao;
b) a nao alocacao na operacao e manutencao do servico dos recursos
humanos e materiais necessarios a preservacao dos padroes minimos de
seguranca; e
c) nao adocao de precaucoes que sejam recomendadas para o servico
ora concedido.
(S) 8 - A infracao prescrita no inciso VIII desta clausula tera sua
gravidade definida em funcao da relevancia, do vulto economico e da
essencialidade dos bens envolvidos e sera caracterizada pela conduta da
Concessionaria que contraria o disposto neste Contrato ou na regulamentacao e
que possa por em risco bens ou equipamentos vinculados a presente concessao ou
dificultar a reversao dos mesmos, em especial:
a) a nao manutencao de inventario e registro dos bens referidos na
clausula 21.1.;
b) pelo emprego, diretamente na prestacao do servico objeto da
presente concessao, de bens de terceiros sem previa anuencia da
ANATEL ou sem que esta seja dispensada em regulamento; e
c) pela negligencia na conservacao dos bens reversiveis, observada a
regulamentacao.
(S) 9 - A sancao prevista no inciso IX sera caracterizada pela
verificacao de violacao de obrigacao contratual nao compreendida nos incisos
anteriores, em especial aquela prevista no inciso XXXI da clausula 15.1.
(S) 10 - A sancao prevista no inciso II supra tem carater contratual
e sera aplicada pela ANATEL independentemente das providencias que venham a ser
adotadas pelo CADE.
(S) 11 - O nao recolhimento de qualquer multa fixada nos termos do
disposto na presente clausula no prazo fixado pela ANATEL caracterizara falta
grave, ensejando a intervencao na Concessionaria nos termos do disposto no
Capitulo XXVIII, alem de implicar a cobranca de multa moratoria de 0,33% (zero
virgula trinta e tres por cento) ao dia, ate o limite de 10% (dez por cento),
acrescida da taxa referencial SELIC para titulos federais, a ser aplicada sobre
o valor da divida, considerando
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todos os dias de atraso de pagamento.
CLAUSULA 25.2. - Para aplicacao das multas contratuais previstas
neste Capitulo serao observadas as regras contidas no Titulo VI do Livro III da
Lei n 9.472, de 1997, e na regulamentacao.
(S) 1 - Na definicao da gravidade das sancoes e na fixacao das
multas, a ANATEL observara as seguintes circunstancias:
I - a proporcionalidade entre a intensidade do apenamento e a
gravidade da falta, inclusive quanto ao numero dos usuarios
atingidos;
II - os danos resultantes da infracao para o servico e para os
usuarios;
III - a vantagem auferida pela Concessionaria em virtude da
infracao;
IV - a participacao da Concessionaria no mercado dentro de sua area
geografica de prestacao do servico;
V - a situacao economica e financeira da Concessionaria, em especial
a sua capacidade de geracao de receitas e o seu patrimonio;
VI - os antecedentes da Concessionaria;
VII - a reincidencia especifica, assim entendida a repeticao de
falta de igual natureza apos o recebimento de notificacao anterior;
e
VIII - as circunstancias gerais agravantes ou atenuantes da
infracao.
(S) 2 - Independente dos criterios especificos de graduacao
previstos em cada inciso da clausula anterior e de outros previstos na
regulamentacao, a gradacao das penas observara a seguinte escala:
I - a infracao sera considerada leve quando decorrer de condutas
involuntarias ou escusaveis da Concessionaria e da qual ela nao se
beneficie;
II - a infracao sera considerada de gravidade media quando decorrer
de conduta inescusavel, mas que nao traga para a Concessionaria
qualquer beneficio ou proveito, nem afete numero significativo de
usuarios; e
III - a infracao sera considerada grave quando a ANATEL constatar
presente um dos seguintes fatores:
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a) ter a Concessionaria agido com ma-fe;
b) da infracao decorrer beneficio direto ou indireto para a
Concessionaria;
c) a Concessionaria for reincidente na infracao;
d) o numero de usuarios atingido for significativo; e
e) na hipotese prevista no (S) 10 da clausula anterior.
(S) 3 - A criterio da ANATEL, nas infracoes classificadas como leves,
quando da sua primeira ocorrencia, podera ser aplicada a pena de advertencia a
Concessionaria, que sera comunicada formalmente da sancao, sem prejuizo da
publicacao da decisao na Imprensa Oficial.
(S) 4 - Para aplicacao das sancoes previstas neste Capitulo sera
observado o Procedimento Sancionatorio previsto no Regimento Interno da ANATEL.
(S) 5 - Nas infracoes previstas no inciso IV da clausula 25.1. a
ANATEL podera determinar que a Concessionaria abata do valor a ser recolhido, a
titulo de multa, montantes a serem pagos como ressarcimento aos usuarios
atingidos, fixando no ato de aplicacao da pena os criterios para o
ressarcimento, o prazo em que deve ser pago e o valor maximo do abatimento.
(S) 6 - A hipotese prevista no paragrafo anterior so podera ser
adotada quando verificado que o interesse ou a necessidade dos usuarios nao
elidira a responsabilidade da Concessionaria pelas demais indenizacoes civis
devidas.
CLAUSULA 25.3. - As multas previstas nesta clausula serao aplicadas
sem prejuizo da caracterizacao das hipoteses de intervencao ou declaracao de
caducidade previstas no presente Contrato.
PARAGRAFO UNICO - Em caso de inexecucao total ou parcial do ajuste ou
de atrasos injustificados superiores a 120 (cento e vinte) dias no cumprimento
das metas previstas neste Contrato, a Concessionaria estara sujeita a decretacao
de caducidade da Concessao nos termos do disposto na clausula 26.4.
CLAUSULA 25.4. - Os valores das multas previstas neste Capitulo serao
reajustados, anualmente, mediante a aplicacao do IGP-DI, vencendo o primeiro
reajuste apos um ano da assinatura do presente Contrato.
CAPITULO XXVI - DA EXTINCAO DA CONCESSAO
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Clausula 26.1. - Considerar-se-a extinto o Contrato de concessao nas
seguintes hipoteses:
I - termino do prazo de concessao do servico, desde que nao tenha
sido prorrogado nos termos do presente Contrato;
II - encampacao, consoante o Art. 113 da Lei n 9.472, de 1997;
III - caducidade, nos termos do disposto no artigo 114 da Lei n
9.472, de 1997, e no presente Contrato;
IV - rescisao amigavel ou judicial, nos termos do art. 115 da Lei
n 9.472, de 1997; e
V - anulacao.
(S) 1 - Extinta a concessao, retornarao a ANATEL os direitos e
deveres relativos a prestacao do servico concedido, com reversao dos bens
referidos na clausula 22.1, resguardado a Concessionaria o direito as
indenizacoes previstas na legislacao e neste Contrato.
(S) 2 - Apos a extincao da concessao, a ANATEL procedera aos
levantamentos, avaliacoes e liquidacoes necessarios, no prazo de 180 (cento e
oitenta) dias contados da assuncao do servico, salvo na hipotese de termino do
prazo contratual, quando estas providencias deverao ser adotadas pela ANATEL com
antecedencia.
(S) 3 - Extinta a concessao antes do termo contratual, a ANATEL,
sem prejuizo de outras medidas cabiveis, podera:
I - ocupar, temporariamente, bens moveis e imoveis e valer-se de
pessoal empregado na prestacao do servico necessarios a sua
continuidade; e
II - manter os Contratos firmados pela Concessionaria com terceiros
pelo prazo e nas condicoes inicialmente ajustadas.
CLAUSULA 26.2. - A reversao ao termino do prazo contratual sera
feita sem indenizacao, salvo quando ocorrer a hipotese prevista na clausula
22.3.
CLAUSULA 26.3. - Nos termos do art. 113 da Lei n 9.472, de 1997,
considera-se encampacao a retomada do servico pela ANATEL durante o prazo de
concessao, em face de razao extraordinaria de interesse publico, mediante lei
autorizativa especifica e precedida de pagamento de indenizacao.
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CLAUSULA 26.4. - O presente Contrato podera ter sua caducidade
declarada por ato do Conselho Diretor da ANATEL, precedido de processo
administrativo que assegure ampla defesa a Concessionaria, nas hipoteses de :
I - transferencia do controle societario, cisao, fusao,
transformacao da Concessionaria ou ainda incorporacao ou reducao do
seu capital sem a previa aprovacao da ANATEL;
II - transferencia irregular do Contrato;
III - nao cumprimento do compromisso de transferencia referido na
clausula 18.1. e no art. 87 da Lei n 9.472, de 1997;
IV - falencia ou dissolucao da Concessionaria;
V - nao atendimento das exigencias de cobertura por planos de
seguros em afronta as obrigacoes previstas na clausula 23.1. e tal
omissao nao puder, a criterio da ANATEL, ser suprida com a
intervencao; e
VI - quando, nos termos do art. 114, inciso IV, da Lei n 9.472, de
1997, ocorrer qualquer das hipoteses previstas na clausula 28.1. e,
a criterio da ANATEL, a intervencao for considerada inconveniente,
inocua ou ainda injustamente benefica a Concessionaria.
(S) 1 - Sera considerada desnecessaria a intervencao quando a
demanda pelo servico objeto da concessao puder ser atendida, mediante permissao,
por outras prestadoras de modo regular e imediato.
(S) 2 - A declaracao de caducidade nao elidira a aplicacao das
penalidades cabiveis nos termos deste Contrato pelas infracoes praticadas pela
Concessionaria, nem prejudicara o direito a indenizacao definida nos termos do
Capitulo seguinte.
CLAUSULA 26.5. - A Concessionaria tera direito a rescisao
contratual, judicial ou amigavel, quando por acao ou omissao do Poder Publico, a
execucao do Contrato se tornar excessivamente onerosa, nos termos do art. 115 da
Lei n 9.472, de 1997.
PARAGRAFO UNICO - Nao constitui motivo para a rescisao contratual a
introducao ou a ampliacao da competicao entre os diversos prestadores do servico
objeto da concessao, sendo certo que a Concessionaria assume a presente
concessao ciente de que exercera suas atividades sem qualquer reserva ou
exclusividade de mercado.
CLAUSULA 26.6. - A anulacao sera decretada pela ANATEL
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em caso de irregularidade insanavel e grave verificada no presente Contrato.
CAPITULO XXVII- DA INDENIZACAO
CLAUSULA 27.1. - Para fins de calculo de indenizacao, devida pela
ANATEL a Concessionaria nos casos expressamente previstos no presente Contrato,
observar-se-a o seguinte:
I - Termino do prazo contratual - nao cabera indenizacao, exceto se
comprovado que o nao pagamento significa enriquecimento imotivado
por parte da Uniao em funcao da reversao de bens ainda nao
integralmente amortizados, observado o disposto na clausula 22.3.;
II - Encampacao - observado o disposto no art. 113 da Lei n 9.472,
de 1997, a indenizacao, que sera paga previamente ao ato, deve
corresponder ao valor dos bens que reverterem ao poder concedente,
descontada a sua depreciacao.
III - Caducidade - independentemente da aplicacao das penalidades e
da reparacao dos danos decorrentes do inadimplemento, nos termos do
Contrato, a Concessionaria somente podera postular indenizacao se
comprovadamente estiver a ocorrer enriquecimento imotivado por parte
da Uniao pela reversao de bens nao integralmente amortizados ou
depreciados, descontando o valor dos danos causados e das multas
cominadas, bem como, quando o caso, das obrigacoes financeiras nao
satisfeitas;
IV - Rescisao amigavel ou judicial - nao cabera indenizacao, exceto
se contrariamente for fixado em sentenca judicial; e
V - Anulacao - somente quando comprovado que a Concessionaria nao
concorreu para a ilegalidade, cabera indenizacao correspondente
apenas ao valor efetivo dos bens que reverterem para a Uniao,
calculado na data da decretacao da anulacao, desde que estes bens
ainda nao estejam integralmente amortizados pela exploracao dos
servicos.
(S) 1 - O valor provisorio a ser antecipado pela ANATEL para os
casos de encampacao sera calculado na forma prescrita na lei autorizativa
especifica.
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(S) 2 - Quando advier a caducidade por culpa comprovada da
Concessionaria, esta acarretara tambem:
a) retencao dos creditos decorrentes do Contrato, inclusive com
apropriacao de receitas decorrentes de pagamentos feitos pelos
usuarios do servico;
b) responsabilizacao por prejuizos causados a Uniao e aos usuarios;
c) aplicacao de multas nos termos do disposto no presente Contrato e
na legislacao vigente; e
d) perda do seguro garantia previsto na clausula 23.1.
(S) 3 - Excetuada a hipotese de encampacao, a indenizacao cabivel
para os demais casos de extincao do Contrato sera calculada nos termos deste
capitulo e parcelada pelo numero de meses a que ainda seria vigente a concessao,
devendo a primeira parcela vencer apos um ano da extincao do Contrato.
(S) 4 - A ANATEL podera transferir para o prestador que suceder a
Concessionaria na exploracao do servico, o onus de pagamento das respectivas
indenizacoes, assumindo novamente a obrigacao de pagamento, caso o novo
prestador atrase em mais de 90 (noventa) dias os pagamentos.
CAPITULO XXVIII - DA INTERVENCAO
CLAUSULA 28.1. - A intervencao na Concessionaria podera ser
decretada pela ANATEL, a seu criterio e no interesse publico, atraves de ato
especifico e motivado do seu Conselho Diretor, sempre que, por falha da
Concessionaria, houver risco quanto a continuidade e seguranca do servico e em
especial nas seguintes situacoes:
I - paralisacao injustificada do servico, assim entendida a
interrupcao da prestacao fora das hipoteses previstas no presente
Contrato e sem a apresentacao de razoes tidas pela ANATEL como aptas
a justifica-la;
II - inadequacao ou insuficiencias reiteradas no servico prestado,
caracterizadas pelo nao atendimento dos parametros de qualidade
previstos no presente Contrato e na regulamentacao, mesmo apos
notificacao de prazo, pela ANATEL, para regularizacao da situacao;
III - pratica de ma administracao que coloque em risco a
continuidade do servico;
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IV - pratica reincidente de infracoes definidas como graves nos
termos da clausula 25.1 supra;
V - nao atendimento das metas de universalizacao, assim entendido o
descumprimento injustificado do cronograma de implementacao das
obrigacoes de universalizacao presentes neste Contrato;
VI - recusa injustificada de interconexao, assim entendida a
negativa, delonga ou qualquer atitude protelatoria na negociacao ou
efetivacao da ligacao a sua rede solicitada por outro prestador,
observadas as condicoes de interconexao arbitradas pela ANATEL;
VII - infracao da ordem economica, caracterizada pela aplicacao de
sancoes por pratica contraria a concorrencia; e
VIII - omissao em prestar contas a ANATEL ou oferecimento de obice a
atividade fiscalizatoria que pressuponham a pratica de qualquer das
ocorrencias previstas nos incisos anteriores.
CLAUSULA 28.2. - O ato de intervencao devera, necessariamente,
indicar o prazo, os motivos, os objetivos e limites, alem de designar o
interventor.
PARAGRAFO UNICO - O prazo e os limites da intervencao deverao ser
compativeis e proporcionais aos motivos que a ensejaram.
CLAUSULA 28.3. - A intervencao sera precedida de procedimento
administrativo instaurado pela ANATEL, no qual sera assegurado o amplo direito
de defesa da Concessionaria.
PARAGRAFO UNICO - Quando imprescindivel a intervencao imediata,
podera ela ser decretada cautelarmente pela ANATEL, sem previa manifestacao da
Concessionaria, devendo, neste caso, o procedimento ser imediatamente instaurado
na data da decretacao e concluido em ate cento e oitenta dias, prazo em que
podera a Concessionaria exercer seu direito amplo a defesa.
CLAUSULA 28.4. - A decretacao da intervencao nao afetara o curso
regular dos negocios da Concessionaria nem seu normal funcionamento, produzindo,
contudo, o imediato afastamento de seus administradores.
CLAUSULA 28.5. - A funcao de interventor podera recair sobre agente
dos quadros da ANATEL, pessoa especificamente nomeada, colegiado ou empresa,
assumindo a Concessionaria os custos da
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remuneracao.
(S) 1 - Dos atos do interventor cabera recurso a ANATEL.
(S) 2 - O interventor prestara contas e respondera pelos atos que
praticar.
(S) 3 - Para os atos de alienacao e disposicao do patrimonio da
Concessionaria, o interventor necessitara de previa autorizacao da ANATEL.
CLAUSULA 28.6. - Nao sera decretada a intervencao quando, a juizo da
ANATEL, ela for considerada desnecessaria .
PARAGRAFO UNICO - A intervencao sera considerada desnecessaria nas
hipoteses prescritas no (S) 1 da clausula 26.4. supra, bem como naquelas
previstas no art. 114, inciso IV da Lei n 9.472, de 1997.
CAPITULO XXIX - DAS EXPROPRIACOES E IMPOSICOES ADMINISTRATIVAS
Clausula 29.1. - Caso haja a necessidade, para implementacao,
prestacao ou modernizacao do servico, de realizar alguma desapropriacao ou
servidao administrativa, os onus serao suportados integralmente pela
Concessionaria, devendo a ANATEL solicitar do Presidente da Republica a emissao
do ato de decretacao de utilidade publica.
CAPITULO XXX - DA ARBITRAGEM
Clausula 30.1. - Os eventuais conflitos que possam surgir em materia
da aplicacao e interpretacao das normas da concessao serao resolvidos pela
ANATEL no exercicio da sua funcao de orgao regulador conforme prescrito nos
artigos 8 e 19 da Lei n 9.472, de 1997, podendo a Concessionaria recorrer ao
procedimento de arbitragem disposto no presente Capitulo exclusivamente quando
inconformada com a decisao da ANATEL relativa as seguintes materias:
I - violacao do direito da Concessionaria a protecao de sua situacao
economica, conforme prescrito no Capitulo XII;
II - revisao das tarifas, prevista no Capitulo XII; e
III - indenizacoes devidas quando da extincao do presente Contrato,
inclusive quanto aos bens revertidos.
50
<PAGE>
PARAGRAFO UNICO - A submissao de qualquer questao a arbitragem nao
exime a ANATEL e a Concessionaria da obrigacao de dar integral cumprimento a
este Contrato, nem permite a interrupcao das atividades vinculadas a concessao.
CLAUSULA 30.2. - O processo de arbitragem tera inicio mediante
comunicacao remetida por uma parte a outra, requerendo a instalacao do Tribunal
Arbitral de que trata este Capitulo e indicando detalhadamente a materia em
torno da qual gira a controversia.
PARAGRAFO UNICO - A ANATEL podera rejeitar a instalacao do Tribunal
Arbitral se, motivada e justificadamente, demonstrar que a controversia nao se
enquadra no rol de materias prevista na clausula 30.1.
CLAUSULA 30.3. - O Tribunal Arbitral sera composto por 5 (cinco)
membros, assim nomeados:
I - 2 (dois) membros efetivos e respectivos suplentes indicados pelo
Conselho Diretor da ANATEL dentre especialistas nas areas afetas a
materia controvertida, nao pertencentes aos seus quadros, sendo pelo
menos um, que o presidira, detentor de conhecimentos especificos em
regulamentacao juridica de telecomunicacoes;
II - 2 (dois) membros efetivos e respectivos suplentes indicados pela
Concessionaria, dentre especialistas nas areas afetas a materia
controvertida, que nao sejam seus empregados, sendo pelo menos um
detentor de conhecimentos especificos em regulamentacao juridica de
telecomunicacoes; e
III - 1 (um) membro efetivo e respectivo suplente indicado pelos
membros referidos nos incisos anteriores.
(S) 1 - O Tribunal Arbitral podera ser assistido pelos peritos
tecnicos que considere conveniente designar.
(S) 2 - Considera-se constituido o Tribunal na data em que todos os
arbitros aceitarem as suas indicacoes e comunicarem a ambas as partes as suas
aceitacoes.
(S) 3 - O Tribunal julgara segundo o direito constituido e suas
decisoes tem forca cogente, independentemente de homologacao judicial.
CLAUSULA 30.4. - Nao tendo sido rejeitado pela ANATEL ou sendo
superado tal questionamento, sera iniciado o Processo versado no presente
Capitulo, o qual obedecera ao seguinte procedimento:
51
<PAGE>
I - as partes terao 10 (dez) dias contados do recebimento da
comunicacao de que trata o caput da clausula anterior, para indicar
os membros do Tribunal Arbitral, o qual sera instalado imediatamente
apos a aceitacao de todos os seus membros;
II - estando inerte uma das partes ou tendo oferecido resistencia a
instalacao do Tribunal Arbitral, a outra parte podera se utilizar da
faculdade prevista no art. 7 da Lei n 9.307, de 23 de setembro de
1996;
III - instalado o Tribunal Arbitral, sera aberto prazo sucessivo de
25 (vinte e cinco) dias para que as partes apresentem suas razoes
sobre a materia controvertida, podendo nesta oportunidade apresentar
laudos, pericias, pareceres, juntar documentos ou informacoes que
entendam relevantes para sustentar sua posicao;
IV - apresentados os memoriais, o Tribunal analisara as razoes
expostas e podera, por requerimento de um de seus membros,
determinar a elaboracao de laudos, pericias ou pareceres, solicitar
informacoes ou documentos para as partes, bem como realizar
diligencias e tomar as providencias que entenda necessarias para a
perfeita instrucao da materia controvertida;
V - durante a coleta dos elementos a que se refere o inciso
anterior, serao sempre permitidos as partes a manifestacao e o
contraditorio, obedecidos os principios da informalidade, da
consensualidade e da celeridade que pautarao o procedimento;
VI - declarada encerrada a instrucao, sera concedido prazo comum de
15 (quinze) dias para que as partes apresentem suas alegacoes
finais;
VII - transcorrido o prazo prescrito no inciso anterior,
independentemente da apresentacao das alegacoes finais, o Tribunal
proferira sua decisao em prazo nao superior a 30 (trinta) dias;
VIII - da decisao do Tribunal Arbitral nao cabera recurso, exceto
pedido de reconsideracao, cabivel apenas na hipotese da decisao ter
sido adotada por maioria de apenas um voto; e
IX - so cabera invalidacao do processo de arbitragem nas hipoteses
prescritas no art. 32 da Lei n 9.307/96.
52
<PAGE>
PARAGRAFO UNICO - As despesas com o processo de arbitragem,
abrangendo, inclusive, as custas de laudos, pareceres e pericias, bem como os
honorarios dos membros do Tribunal, serao imputadas a Concessionaria ou a
ANATEL, conforme decisao do Tribunal Arbitral.
CAPITULO XXXI - DO REGIME LEGAL APLICAVEL E DOS DOCUMENTOS APLICAVEIS
CLAUSULA 31.1. - Regem a presente concessao, sem prejuizo das demais
normas integrantes do ordenamento juridico brasileiro, a Lei n 9.472 de 16 de
Julho de 1.997 e a regulamentacao dela decorrente, em especial a de competencia
do Poder Executivo, conforme disposto no art. 18 da referida Lei, prevalecendo
sempre estas no que colidir com aquelas.
CLAUSULA 31.2. - Na prestacao do servico ora concedido deverao ser
observadas as politicas nacionais de telecomunicacoes e regulamentacao da
ANATEL, como parte integrante deste Contrato, em especial os documentos
relacionados a seguir:
I - Plano Geral de Outorgas;
II - Plano Geral de Metas de Universalizacao;
III - Plano Geral de Metas de Qualidade;
IV - Regulamento Geral dos Servicos de Telecomunicacoes;
V - Regulamento do Servico Telefonico Fixo Comutado;
VI - Regulamento Geral de Interconexao;
VII- Regulamento de Numeracao para o Servico Telefonico Fixo
Comutado;
VIII Regulamento da Administracao da Numeracao; e
IX - Regulamento sobre Remuneracao pelo Uso das Redes das
Prestadoras do STFC.
CLAUSULA 31.3. Na interpretacao das normas e disposicoes constantes do
presente Contrato deverao ser levadas em conta, alem dos documentos referidos no
item anterior, as regras gerais de hermeneutica e as normas e principios
contidos na Lei n 9.472/97.
53
<PAGE>
CAPITULO XXXII - DO FORO
CLAUSULA 32.1. - Para solucao de questoes decorrentes do presente
Contrato que nao puderem ser resolvidas atraves do procedimento de solucao de
divergencias constante do Capitulo XXX - Da Arbitragem, sera competente o Foro
da Secao Judiciaria da Justica Federal de Brasilia, Distrito Federal.
CAPITULO XXXIII - DAS DISPOSICOES FINAIS E GERAIS
CLAUSULA 33.1. - O Contrato ora assinado entrara em vigencia quando da
publicacao do seu extrato no Diario Oficial da Uniao.
PARAGRAFO UNICO - A Concessionaria tera prazo de 6 (seis) meses
contados da edicao da regulamentacao referida na clausula 31.2, a qual devera
estar totalmente editada ate 31 de dezembro de 1998, quando passara a ser
exigido integralmente o cumprimento das obrigacoes constantes deste Contrato.
E por assim estarem de pleno acordo com as disposicoes e condicoes do presente
Contrato, as partes o assinam em 03 (tres) vias de igual teor e forma, na
presenca das testemunhas, que tambem o assinam, para que se produzam seus legais
e juridicos efeitos.
Brasilia, 26 de maio de 1998.
Pela ANATEL:
__________________________
__________________________
Pela Concessionaria:
__________________________
__________________________
Testemunhas:
__________________________
Nome:
RG:
__________________________
Nome:
RG:
54
<PAGE>
ANEXO N 01
QUALIFICACAO DOS BENS REVERSIVEIS DA PRESTACAO DO
a. SERVICO TELEFONICO FIXO COMUTADO LOCAL
a) Infra-estrutura e equipamentos de comutacao, transmissao incluindo
terminais de uso publico;
b) Infra-estrutura e equipamentos de rede externa;
c) Infra-estrutura de equipamentos de energia e ar condicionado;
d) Infra-estrutura e equipamentos de Centros de Atendimento e de Prestacao de
Servico;
e) Infra-estrutura e equipamentos de sistemas de suporte a operacao;
f) Outros indispensaveis a prestacao do servico.
55
<PAGE>
ANEXO N 02
METAS DE UNIVERSALIZACAO
1. As metas de universalizacao sao aquelas estabelecidas no Plano Geral de Metas
de Universalizacao, mais as seguintes:
1. Acessos plenos individuais instalados no setor citado na clausula 2.1 deste
Contrato :
a) ate 31/12/1999
b) ate 31/12/2000
c) ate 31/12/2001
2. Instalar telefone de uso publico no setor citado na clausula 2.1 deste
Contrato:
a) ate 31/12/1999
b) ate 31/12/2000
c) ate 31/12/2001
56
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ANEXO N 03
PLANO BASICO DO SERVICO LOCAL
1 Generalidades
1.1 O Plano Basico do Servico Local e regido pelas Portarias citadas neste
anexo, demais regulamentacoes vigentes e por outras que venham a sucede-las.
1.2 As tarifas apresentadas sao maximas, liquidas de impostos e contribuicoes
sociais.
2- ACESSO AO SERVICO TELEFONICO FIXO COMUTADO - STFC
2.1 Para o acesso ao Servico Telefonico Fixo Comutado, a Prestadora podera
cobrar Tarifa de Habilitacao, cujo valor e limitado a R$ 80,00 (oitenta reais),
conforme definido na Portaria n 508, de 16/10/97, do Ministro de Estado das
Comunicacoes;
2.2 Para manutencao do direito de uso as Prestadoras estao autorizadas a cobrar
tarifa de assinatura, segundo a tabela abaixo, conforme Portarias ns 217 e 226,
ambas de 03/04/97, do Ministro de Estado das Comunicacoes.
Classe de Assinantes R$
- ------------------------------------------------
Residencial 10,00 (dez reais)
- ------------------------------------------------
Nao Residencial 15,00 (quinze reais)
- ------------------------------------------------
Tronco de CPCT 20,00 (vinte reais)
- ------------------------------------------------
2.2.1 A assinatura do STFC Local inclui uma franquia de 90 pulsos.
2.3 A mudanca de endereco de assinante habilitado podera ser cobrada, sendo o
valor limitado a R$ 62,40 (sessenta e dois reais e quarenta centavos);
3 A UTILIZACAO DO STFC
3.1 STFC Local
3.1.1 O STFC Local e regulamentado pela Portaria n. 216, de 18.09.91, do
Secretario Nacional de Comunicacoes, alterada pela Portaria n 218, de 03 de
abril de 1997, do Ministro de Estado das Comunicacoes, que dispoe sobre os
processos de tarifacao das chamadas locais no Servico Telefonico Publico.
3.1.2 O STFC Local sera tarifado:
57
<PAGE>
a) pelo metodo Karlsson Acrescido - KA - 240 (multimedicao), onde a cobranca e
feita pela aplicacao de uma unidade de tarifacao (pulso) por chamada
estabelecida e de unidades adicionais a cada 240 segundos, sendo a primeira
cobranca efetuada ao acaso em relacao ao inicio da chamada.
b) pelo Metodo de Medicao Simples, onde a cobranca e feita pela aplicacao de uma
unidade de tarifacao (pulso) por chamada atendida, independentemente de sua
duracao.
<TABLE>
<CAPTION>
Dias Sistema de Medicao
- -------------------------------------------------------------------------------------------------------
<S> <C>
De Segunda a Sexta-feira das 06:00h as 24:00 h Multimedicao (KA 240)
- -------------------------------------------------------------------------------------------------------
De Segunda a Sexta-feira das 00:00h as 06:00 h Medicao Simples
- -------------------------------------------------------------------------------------------------------
Sabados das 06:00 h as 14:00 h Multimedicao (KA 240)
- -------------------------------------------------------------------------------------------------------
Sabados das 00:00 h as 06:00 h e das 14:00 h as 24:00 h Medicao Simples
- -------------------------------------------------------------------------------------------------------
Domingos e Feriados das 00:00 as 24:00 horas Medicao Simples
- -------------------------------------------------------------------------------------------------------
</TABLE>
3.1.3 A unidade de tarifacao do STFC Local e o Pulso, cujo valor medio,
estabelecido pela Portaria n. 226, de 03.04.97, do Ministro de Estado das
Comunicacoes, e R$ 0,058.
3.1.4 Nas Chamadas Locais a Cobrar poderao ser aplicados os principios de
tarifacao do STFC Longa Distancia Nacional relativos ao Degrau 1 da Matriz de
Degraus Tarifarios do STFC Longa Distancia Nacional, conforme determina a
Portaria n. 218, de 03.04.97, do Ministro de Estado das Comunicacoes;
3.1.5 Nas chamadas locais originadas em telefones publicos, sera adotado o
metodo de medicao por tempo, em que incide uma unidade de tarifacao,
sincronizadamente, ocorrendo a primeira no completamento da chamada, denominado
metodo Karlsson Puro, conforme determina a Portaria n. 216, de 18.09.91, do
Secretario Nacional de Comunicacoes, com o periodo de tempo para a unidade de
tarifacao de 120 segundos, conforme preve a Portaria n. 218, de 03.04.97, do
Ministro de Estado das Comunicacoes.
3.1.6 O Valor da Ficha Local/Credito do Cartao Telefonico e de R$ 0,043,
conforme fixado pela Portaria n226, de 03.04.97, do Ministro de Estado das
Comunicacoes;
3.2 Servico Movel Celular
3.2.1 Os criterios e procedimentos de tarifacao de chamadas para o Servico Movel
Celular sao os regulamentados pela Norma n 23/96, aprovada pela Portaria n
1536, de 04.11.96, do Ministro de Estado das Comunicacoes.
58
<PAGE>
3.2.2 A unidade de tarifacao e o decimo de minuto (seis segundos).
3.2.3 A tarifacao minima e de 30 (trinta) segundos.
3.2.4 A Portaria n 2503, de 20.12.96, do Ministro de Estado das Comunicacoes,
fixou os valores maximos das tarifas, por minuto, conforme tabela abaixo:
Areas do SMC Tarifa Tarifa
Normal Reduzida
----------------------
VC-1 VC-1
- --------------------------------------------------
1 0,27000 0,18900
- --------------------------------------------------
2 0,27000 0,18900
- --------------------------------------------------
3 0,28000 0,19600
- --------------------------------------------------
4 0,28000 0,19600
- --------------------------------------------------
5 0,27000 0,18900
- --------------------------------------------------
6 0,27000 0,18900
- --------------------------------------------------
7 0,27000 0,18900
- --------------------------------------------------
8 0,27000 0,18900
- --------------------------------------------------
9 0,26000 0,18200
- --------------------------------------------------
10 0,26000 0,18200
- --------------------------------------------------
3.2.5 O horario de tarifa reduzida para as chamadas destinadas ao Servico Movel
Celular sera de segunda a sabado de 0:00h as 7:00h e das 21:00h as 24:00h e aos
domingos e feriados, de 0:00h as 24:00h, conforme o disposto na Norma n 23/96,
aprovada pela Portaria n 1536, de 04/11/96, do Ministro de Estado das
Comunicacoes.
59
<PAGE>
SCHEDULE IDENTIFYING OMITTED CONCESSION AGREEMENTS AND SETTING FORTH THE
MATERIAL DETAILS IN WHICH SUCH AGREEMENTS DIFFER FROM THE STANDARD
CONCESSION AGREEMENT FILED AS
EXHIBIT 10.1
1. Agreement: Concession Agreement between Agencia Nacional de Telecomunicacoes
("ANATEL") and Telecomunicacoes do Acre S.A. - Telacre.
Material Differences:
(a) Name of concessionaire (see pages 1 and 47): Telecomunicacoes do
Acre S.A. Telacre.
(b) Geographical area of service (see page 2): 28
(c) Annex 2 - Universal Service Objectives (see page 49):
1. a) by 12/31/1999 - 66,000
b) by 12/31/2000 - 79,000
c) by 12/31/2001 - 93,000
2. a) by 12/31/1999 - 1,700
b) by 12/31/2000 - 2,100
c) by 12/31/2001 - 2,600
2. Agreement: Concession Agreement between ANATEL and Telecomunicacoes de
Rondonia S.A. -Teleron.
Material Differences:
(a) Name of concessionaire (see pages 1 and 47): Telecomunicacoes
de Rondonia S.A. Teleron.
(b) Geographical area of service (see page 2): 27
(c) Annex 2 -Universal Service Objectives (see page 49):
1. a) by 12/31/1999 - 178,000
b) by 12/31/2000 - 214,000
c) by 12/31/2001 - 253,000
2. a) by 12/31/1999 - 4,000
b) by 12/31/2000 - 5,400
c) by 12/31/2001 - 7,200
3. Agreement: Concession Agreement between ANATEL and Telecomunicacoes de Goias
S.A. -Telegoias.
Material Differences:
(a) Name of concessionaire (see pages 1 and 47): Telecomunicacoes de
Goias S.A. Telegoias.
(b) Geographical area of service (see page 2): 24
(c) Annex 2 - Universal Service Objectives (see page 49):
1. a) by 12/31/1999 - 738,000
<PAGE>
b) by 12/31/2000 - 818,000
c) by 12/31/2001 - 892,000
2. a) by 12/31/1999 - 24,370
b) by 12/31/2000 - 28,170
c) by 12/31/2001 - 32,630
4. Agreement: Concession Agreement between ANATEL and Telecomunicacoes de
Brasilia S.A. -Telebrasilia.
Material Differences:
(a) Name of concessionaire (see pages 1 and 47): Telecomunicacoes de
Brasilia S.A. -. Telebrasilia
(b) Geographical area of service (see page 2):26
(c) Annex 2 - Universal Service Objectives (see page 49):
1. a) by 12/31/1999 - 716,000
b) by 12/31/2000 - 790,000
c) by 12/31/2001 - 858,000
2. a) by 12/31/1999 - 11,900
b) by 12/31/2000 - 14,100
c) by 12/31/2001 - 16,800
5. Agreement: Concession Agreement between ANATEL and Telecomunicacoes do Mato
Grosso S.A. - Telemat.
Material Differences:
(a) Name of concessionaire (see pages 1 and 47): Telecomunicacoes do Mato
Grosso S.A. - Telemat.
(b) Geographical area of service (see page 2): 23
(c) Annex 2 - Universal Service Objectives (see page 49):
1. a) by 12/31/1999 - 301,000
b) by 12/31/2000 - 337,000
c) by 12/31/2001 - 372,000
2. a) by 12/31/1999 - 10,700
b) by 12/31/2000 - 12,700
c) by 12/31/2001 - 15,100
6. Agreement: Concession Agreement between ANATEL and Telecomunicacoes do Mato
Grosso do Sul S.A. - Telems.
Material Differences:
(a) Name of concessionaire (see pages 1 and 47): Telecomunicacoes do Mato
Grosso do Sul S.A. - Telems.
(b) Geographical area of service (see page 2): 21
2
<PAGE>
(c) Annex 2 - Universal Service Objectives (see page 49):
1. a) by 12/31/1999 - 320,000
b) by 12/31/2000 - 363,000
c) by 12/31/2001 - 406,000
2. a) by 12/31/1999 - 7,510
b) by 12/31/2000 - 9,080
c) by 12/31/2001 - 10,930
7. Agreement: Concession Agreement between ANATEL and Telecomunicacoes do
Parana S.A. - Telepar.
Material Differences:
(a) Name of concessionaire (see pages 1 and 47): Telecomunicacoes do
Parana S.A. Telepar.
(b) Geographical area of service (see page 2): 19
(c) Annex 2 - Universal Service Objectives (see page 49):
1. a) by 12/31/1999 - 1,432,000
b) by 12/31/2000 - 1,640,000
c) by 12/31/2001 - 1,846,000
2. a) by 12/31/1999 - 34,150
b) by 12/31/2000 - 40,250
c) by 12/31/2001 - 47,390
8. Agreement: Concession Agreement between ANATEL and Telecomunicacoes de Santa
Catarina S.A. - Telesc.
Material Differences:
(a) Name of concessionaire (see pages 1 and 47): Telecomunicacoes de
Santa Catarina S.A. - Telesc.
(b) Geographical area of service (see page 2):18
(c) Annex 2 - Universal Service Objectives (see page 49):
1. a) by 12/31/1999 - 851,000
b) by 12/31/2000 - 961,000
c) by 12/31/2001 - 1,067,000
2. a) by 12/31/1999 - 20,100
b) by 12/31/2000 - 23,900
c) by 12/31/2001 - 28,400
9. Agreement: Concession Agreement between ANATEL and Companhia Telefonica
Melhoramento e Resistencia- CTMR.
Material Differences:
3
<PAGE>
(a) Name of concessionaire (see pages 1 and 47): Companhia Telefonica
Melhoramento e Resistencia- CTMR.
(b) Geographical area of service (see page 2): 30
(c) Annex 2 - Universal Service Objectives (see page 49):
1. a) by 12/31/1999 - 101,000
b) by 12/31/2000 - 106,000
c) by 12/31/2001 - 111,000
2. a) by 12/31/1999 - 1,540
b) by 12/31/2000 - 1,780
c) by 12/31/2001 - 2,060
4
<PAGE>
Exhibit 10.2
STANDARD CONCESSION AGREEMENT
FOR
LOCAL, SWITCHED, FIXED-LINE TELEPHONE SERVICE
(BRAZILIAN TELECOMMUNICATIONS COMPANIES, WITH THE EXCEPTION OF EMBRATEL)
The National Telecommunications Agency ANATEL (Agencia Nacional de
Telecomunicacoes), hereinafter referred to as ANATEL, a Brazilian federal
agency, responsible for granting concessions as provided in Federal Law No.
9,472 of July 16, 1997, the General Telecommunications Law GTL, represented
herein by its President, Renato Navarro Guerreiro, [identification], and its
Counsellor **** [identification], acting in accordance with Resolution No. ****
of its Board of Directors, on the one hand, and [name and identification of the
concessionaire], represented by its authorized representative, hereinafter
referred to as the Concessionaire, hereby enter into this Concession Agreement
as provided in Art. 207 of the above-mentioned General Telecommunications Law,
which shall be governed by the legal provisions referred to above and the
following provisions:
CHAPTER I PURPOSE
CLAUSE 1.1. The subject matter of this Agreement is the concession of
public local Switched Fixed-line Telephone Service in the geographic area
defined in clause 2.1, as provided in the General Concession Plan.
SOLE PARAGRAPH This concession includes public Switched Fixed-line
Telephone Service in border or frontier areas as provided by regulations issued
by ANATEL as provided in the General Concession Plan.
CLAUSE 1.2. Switched Fixed-line Telephone Service is the
telecommunications service which, through the transmission of voice and other
signals, is used for communications between fixed and determined points, using
processes of telephony.
CLAUSE 1.3. With the prior approval of ANATEL, the Concessionaire may
establish and carry out useful or convenient activities related to providing the
service which is the subject matter of this concession.
SOLE PARAGRAPH Services and useful or convenient activities shall be
considered to be related to the subject matter of this Concession if, in the
view of ANATEL, they may be considered an inherent part of the platform for the
service granted hereby, and not a new type of service, as provided by
regulation.
CLAUSE 1.4. The Concessionaire is entitled to establish, expand and
operate the trunk lines, networks and switching centers required to implement
the Concession and operate it as a business, as provided by regulation.
1
<PAGE>
CLAUSE 1.5. The provision of the service granted hereby may not be
separated from the obligations to fulfill the universal service and quality
objectives provided for in this Agreement.
CLAUSE 1.6. The Concessionaire agrees to provide its subscribers,
either directly or through third parties, with telephone directories, without
charge, listing the subscribers of all the providers of Switched, Fixed-line
Telephone Service in its concession area, in accordance with regulation.
CLAUSE 1.7. The Concessionaire must provide to all applicants and
customers the installations that are necessary for the supply of the service
granted hereby, as provided by regulation.
CLAUSE 1.8. The Concessionaire must provide free access to emergency
services, as provided by regulation.
CHAPTER II SERVICE AREA
CLAUSE 2.1. The geographical area of the service which is the subject
matter of this concession is the territory in Sector number *** set forth in
Annex 2 to the General Concession Plan.
CHAPTER III TERM OF THE AGREEMENT AND CONDITIONS FOR EXTENSIONS
CLAUSE 3.1. This concession, which is granted without charge, shall
expire on December 31, 2005, with a guaranteed one-time extension of twenty
years, as provided in clauses 3.2, 3.3 and 3.4.
CLAUSE 3.2. This concession shall be extended once, at the request of
the Concessionaire, for 20 (twenty) years, in return for consideration, provided
the Concessionaire complies with the terms set forth in this Agreement, and the
new Agreement may include new conditions and establish new universal service and
quality objectives, in light of the conditions prevailing at the time of the
extension, and establish, in the case of universal service objectives,
supplementary resources, as provided in Art. 81 of Law No. 9,472 of 1997.
(S) 1 Thirty six (36) months before the expiration date provided in
clause 3.1, ANATEL shall make available for public comment its proposals for new
conditions and new quality and universal service objectives, which shall be
submitted to the President of the Republic for approval by Decree, as provided
in Art. 18, paragraph III of Law No. 9,472 of 1997.
(S) 2 In order to obtain the extension provided for by this clause,
the Concessionaire must indicate its interest the at least 30 (thirty) months
before the expiration date provided in clause 3.1.
CLAUSE 3.3. In order to extend this concession as provided in the
preceding clause, the Concessionaire shall pay a fee every two years during the
extension period
2
<PAGE>
corresponding to 2% (two percent) of its revenue for the year prior to the
payment, net of income taxes and payroll taxes, derived from Switched Fixed-line
Telephone Service.
(S) 1 The amount referred to in the preceding paragraph shall be
calculated on the basis of the net revenue generated through the execution of
the service plans, both basic and supplemental, which are the subject matter of
this concession.
(S) 2 The percentage referred to in the first paragraph of this
clause shall always be calculated on the basis of revenue, net of income tax and
payroll tax deductions, generated between January and December of the previous
year as shown in the financial statements prepared in accordance with corporate
law and basic accounting principles, approved by the management of the
Concessionaire and audited by independent auditors, and payment shall be due on
April 30 of the year following the year for which the fee was determined.
(S) 3 The first fee payment shall be due on April 30, 2007,
calculated on the basis of net revenue from January 1 and December 31, 2006, and
subsequent payments shall be due every 24 (twenty four) months, calculated on
the basis of revenue from the preceding year.
(S) 4 Late payment of the fee provided for in this clause shall be
subject to a fine of 0.33% (zero point thirty three percent) per day, up to a
maximum of 10% (ten percent), plus the SELIC reference rate for federal
securities, to be levied upon the amount owed based on the number of days it is
past due.
CLAUSE 3.4. The extension of the duration of this Agreement shall
entail the extension of the right to use those radio frequencies referred to in
clause 4.1 which are required to continue providing the service which is the
subject matter of this concession.
SOLE PARAGRAPH The return of radio frequencies to ANATEL that are not
required to continue providing services shall not change the amount of the
extension fee as determined in clause 3.3.
CHAPTER IV MANNER, FORM AND TERMS OF SERVICE
CLAUSE 4.1. The use of radio frequencies to provide the service which
is the subject matter of this concession shall be authorized by ANATEL, in
exchange for payment and without exclusive rights, unless otherwise stated in
the regulations, in accordance with the provisions of Articles 83 and 163 of Law
No. 9,472 of 1997.
(S) 1 The Concessionaire shall have the nonexclusive right to use
the radio frequencies authorized prior to the signing of this Agreement, which
shall not be contingent upon the payment of any fee, with the exception of audit
fees, in accordance with the terms set forth in the respective station operation
licenses.
(S) 2 The right to use the radio frequencies referred to in this
clause does not preclude the prerogative granted to ANATEL by Art. 161 of Law
No. 9,472 of 1997.
3
<PAGE>
(S) 3 The use of new radio frequencies that may be required by the
Concessionaire shall be authorized in exchange for payment, in observance of the
procedures defined by ANATEL for such authorizations.
(S) 4 The use of the radio frequencies required under the terms of
the preceding paragraph shall be authorized for the same amount of time as this
Concession, and any extension of their use must be made in exchange for payment,
independently of the fee payment referred to in clause 3.3 herein.
CLAUSE 4.2. The Concessionaire agrees to provide the service which is
the subject matter of the concession in such a way as to comply fully with the
applicable universal service and continuity requirements inherent to the
provision of a public service, in accordance with the criteria, formulas and
parameters set forth in this Agreement.
SOLE PARAGRAPH Failure to comply with the obligations pertaining to
the universalization and continuity of service shall result in the application
of the penalties provided for in this Agreement, entitle ANATEL to issue an
intervention decree and, depending upon the circumstances and seriousness of the
situation, or in the event that issuing an intervention decree is unsuitable,
ineffective, unfairly benefits the Concessionaire or useless, lead to the
forfeiture of the concession, as set forth in clause 26.4.
CLAUSE 4.3. The Concessionaire shall operate the service which is the
subject matter of the concession on its own behalf and at its own risk, under
the system of full and fair competition established by Law No. 9,472 of 1997,
and by the General Concession Plan, and shall be remunerated by the rates
charged and any additional or incidental revenue it receives under the terms of
this Agreement.
SOLE PARAGRAPH The Concessionaire shall not be entitled to any type
of exclusive right, nor shall it claim any rights as to the admission of new
providers of the same service, whether in the public or private sector.
CLAUSE 4.4. Throughout the duration of the concession, the
Concessionaire agrees to maintain its commitments to quality, availability and
supply of the service granted hereby, as stated in this Agreement, regardless of
the competitive environment in the geographic area where it operates the
service.
CLAUSE 4.5. The Concessionaire agrees to conserve and maintain in
perfect operating condition all of the goods, equipment and facilities used to
provide the service granted hereby; to maintain and repair them; and to promote,
when appropriate, their replacement when required, either due to wear and tear
or to technological obsolescence; and to promote the repairs and modernizations
required to provide and maintain proper service, as set forth in this Agreement.
4
<PAGE>
CHAPTER V RULES FOR THE ESTABLISHMENT, EXPANSION, MODIFICATION AND
MODERNIZATION OF SERVICE
CLAUSE 5.1. The expansion and modernization of the service granted
hereby, while observing the goals and criteria set forth in this Agreement, are
fundamental tenets of this concession.
SOLE PARAGRAPH ANATEL may modify the objectives regarding the
establishment, expansion and modernization of the service granted hereby,
provided it respects the right of the Concessionaire to not be forced to sustain
additional expenses which cannot be recovered through the revenue resulting from
compliance with such objectives and through the efficient operation of the
service.
CLAUSE 5.2. Changes to the terms under which the service granted
hereby is provided may only be decided by ANATEL, or with its prior express
approval.
CLAUSE 5.3. Modernization of the service granted hereby shall be
sought by the continual introduction of equipment, processes and means capable
of providing users with service compatible with the current technologies
available in the market.
CHAPTER VI CRITERIA AND INDICATORS OF QUALITY AND CONTINUOUS SERVICE
CLAUSE 6.1. A fundamental tenet of this Concession is the provision
of adequate quality service by the Concessionaire, meaning service which is
satisfactory in terms of consistency, efficiency, security, contemporaneity,
universal availability, courtesy and reasonable rates.
(S) 1 Consistency is characterized by the continuous provision of
the service granted hereby, in strict observance of the standards laid down by
ANATEL.
(S) 2 Efficiency is characterized by the application and
preservation of the parameters set forth in this Agreement, and by the service
granted hereby provided to users within the timeframes provided for in this
Agreement.
(S) 3 Security is characterized by the confidentiality of data
regarding use of the service granted hereby by users, as well as the complete
safeguarding of all information communicated within the ambit of providing such
service, in accordance with Chapter XIV.
(S) 4 Contemporaneity is characterized by the up-to-date nature of
the equipment, facilities and techniques used to provide the service granted
hereby, achieved by incorporating technological advances, which clearly benefit
users, occurring during the term of the concession, in keeping with the
provisions of this Agreement.
(S) 5 Universal availability is characterized by the provision of
the service granted hereby to each and every user without discrimination,
whereby the Concessionaire
5
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commits itself to provide the service to whomever requests it, at the location
indicated by the latter, under the terms of this Agreement and as provided by
regulation.
(S) 6 Courtesy is characterized by respectful and immediate
assistance given to all users of the service granted hereby, as well as by full
compliance with the obligation to inform and assist promptly and politely all
those who, regardless of whether they are users, request information or
arrangements, or make any other type of request, under the terms set forth in
this Agreement.
(S) 7 The principle of reasonable rates is characterized by the
Concessionaire's efforts to charge rates lower than the maximum rates determined
by ANATEL.
CLAUSE 6.2. The Concessionaire must comply with the parameters and
indicators of the General Plan on Quality.
SOLE PARAGRAPH The Concessionaire must annually release a chart
demonstrating the objectives and parameters, established and realized, of the
General Plan on Quality and the General Plan on Universal Service,
notwithstanding the requirement to supply this data whenever ANATEL so requests.
CLAUSE 6.3. The continuity of the service granted hereby, an
essential element of the system under which it is provided, is characterized by
the provision of service without interruption, while taking into account
suspension of service due to default on the part of the user under the terms set
forth in clause 8.3 of this Agreement and Art. 3, paragraph VII of Law No. 9,472
of 1997.
SOLE PARAGRAPH Consistency shall not be considered to have been
violated in the event the service granted hereby is interrupted because of an
emergency situation, technical problems or circumstances involving the security
of installations. The affected users are to be notified and, when appropriate,
explanatory notification is to be given to ANATEL.
CLAUSE 6.4. The Concessionaire may not, under any circumstances,
interrupt the service granted hereby on the allegation that ANATEL or the
federal government have not complied with any obligation, and the Concessionaire
may not invoke any exception arising from breach of contract.
CLAUSE 6.5. In addition to managing and monitoring quality
indicators, ANATEL shall periodically evaluate the degree of customer
satisfaction with the service granted hereby, and may release the following
results concerning the Concessionaire:
I Customer service, especially with regard to availability,
promptness, politeness, speed and effectiveness in responding to
requests and complaints;
II Rates charged and discounts offered;
III Technical quality of the service provided; and
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<PAGE>
IV Adequacy of the services offered in relation to users' needs.
CHAPTER VII UNIVERSAL SERVICE OBJECTIVES
CLAUSE 7.1. Universal service is an essential aspect of the system
under which the service granted hereby is provided. It is characterized by the
provision of uniform and nondiscriminatory assistance to all users, and by the
Concessionaire's achievement of the objectives set forth in the General Plan on
Universal Service, approved by Executive authority, under the terms of Article
18, paragraph III and Article 80 of Law No. 9,472 of 1997, and those of Annex 2
of this Agreement.
CLAUSE 7.2. With the exception of clause 7.4 of this Agreement and in
keeping with (S) 2, Art. 4, of the General Plan on Universal Service, approved
by Decree No. 2,592 of May 15, 1998, the implementation of the universal service
objectives provided for in this Agreement shall be financed exclusively through
the operation of the service by the Concessionaire, which shall not be entitled
to any compensation or subsidy.
CLAUSE 7.3. The Concessionaire agrees to implement those universal
service objectives which are not provided for in this Agreement, but which may
be required by ANATEL, in compliance with the provisions of (S) 2, Art. 2 of
the General Plan on Universal Service, approved by Decree No. 2,592 of May 15,
1998, and the following procedure shall be observed when defining compensation
amounts and criteria:
I ANATEL shall consult the Concessionaire regarding the total cost of
implementing the planned additional objectives, the extent to which
they cannot be amortized by operating revenue, and by which specific
payments they are covered. The objectives to be achieved, the
technologies selected, and the location and timeframe of
implementation are to be specifically indicated;
II Should the stated timeframe for consultation lapse without a
response by the Concessionaire, ANATEL shall take the necessary steps
in order to determine the charges and expenses involved in
implementing the additional objectives, and estimate the corresponding
revenue generated;
III Should the Concessionaire issue a response following
consultation, ANATEL shall determine whether the expenses and
estimated revenue presented are adequate and reasonable, taking into
account available technologies, the cost of materials and labor, the
geographical, social and economic characteristics of the market demand
to be met, market prices, and other variables it considers relevant;
IV In the event ANATEL does not consider the proposed expenses and/or
estimated revenue to be reasonable, it may, with justification, make
the Concessionaire responsible for implementing the additional
objectives, and determine the amount of compensation, in accordance
with the provisions of Chapter XXX; and
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<PAGE>
V Should ANATEL consider the amount of compensation to be adequate
and reasonable, it shall confirm to the Concessionaire that the latter
is charged with implementing such additional objectives, under the
terms of the compensation proposal issued by the Concessionaire.
(S) 1 Upon following the procedure set forth in this clause, should
ANATEL consider the implementation of the specific universal service objective
by the Concessionaire to be unsuitable or unfeasible, it shall contract such
undertaking out to another party, which it may do by granting specific and
defined parts of the service, in accordance with the economic parameters derived
from the procedures provided for in this clause.
(S) 2 At the discretion of ANATEL, the procedure provided for in
this clause may also be used to determine the amounts to be compensated
utilizing the resources of the Fund for Universal Telecommunications Services,
when it fulfills the objectives set forth in the General Plan on Universal
Service, approved by Executive authority, under the terms of Article 18,
paragraph III and Article 80 of Law No. 9,472 of 1997.
(S) 3 The use of resources of the Fund for Universal
Telecommunications Services, pursuant to the preceding paragraph, excludes the
utilization of the benefits provided for in (S) 2, Article 10 of the General
Concession Plan, except in the case of compensation to ANATEL for amounts it has
used from said Fund, in addition to the compensation owed.
CLAUSE 7.4. The adoption of the procedures provided for in the
preceding clause is the prerogative of ANATEL, which may adopt them at its
discretion and in keeping with the best interests of the public, and the
Concessionaire shall not have the right to choose how it prefers to implement
the aforementioned universal service objectives.
CHAPTER VIII RULES GOVERNING THE SUSPENSION OF SERVICE DUE TO NONCOMPLIANCE, OR
AT THE REQUEST OF THE SUBSCRIBER
CLAUSE 8.1. Subscribers of the service which is the subject matter of
this concession may request, at any time, the disconnection of the line they
make use of, and the Concessionaire must respond to their request within the
timeframe to be established by ANATEL, which shall be no greater than 48 (forty
eight) hours, unless postponed by the subscriber.
SOLE PARAGRAPH The Concessionaire may not demand payment for the
disconnection referred to above.
CLAUSE 8.2. Subscribers in compliance with their contract with the
Concessionaire, and who request the suspension of their service for more than 30
(thirty) and less than 120 (one hundred twenty) days, shall be guaranteed the
reconnection of their lines at the same address, and may keep the same area code
and number at the end of the requested suspension period, as provided by
regulation.
8
<PAGE>
CLAUSE 8.3. The Concessionaire may only proceed to disconnect the
line of a subscriber who is at least 30 (thirty) days in default of payment,
such debt resulting directly from the use of the service granted hereby, and in
compliance with the procedures set forth by regulation published by ANATEL and
with the following criteria:
I Subscribers must be allowed time to challenge the amounts claimed
from them;
II Subscribers in default shall be entitled to keep their access code
for at least 60 (sixty) days following disconnection.
(S) 1 The Concessionaire must give subscribers at least 15 (fifteen)
days' notice prior to disconnection.
(S) 2 Failure to pay amounts outstanding that are not directly
related to the service which is the subject matter of this concession, in
accordance with the sole paragraph of clause 10.6, shall not be cause for the
cancellation of service provided for in this clause.
CLAUSE 8.4 The Concessionaire shall also guarantee subscribers the
right to block access temporarily or permanently to available conveniences or
features, as well as to premium services, provided they so request, as provided
by regulation.
CLAUSE 8.5 In the event the default of the subscriber exclusively
involves the nonpayment of services supplied by a provider of Switched, Fixed-
line Telephone Service other than the service conceded herein, and which is
billed jointly with the Concessionaire's services, the disconnection must follow
the specific procedure laid down in regulation by ANATEL.
CHAPTER IX NUMBERING PLAN
CLAUSE 9.1. As provided by regulation, the Concessionaire agrees to
obey the Numbering Regulations for Switched, Fixed-line Telephone Service
published by ANATEL, and must guarantee subscribers portability of access codes
within the timeframe defined in such Regulations.
(S) 1 The Concessionaire shall assume all expenses required to
conform to the Numbering Regulations referred to above.
(S) 2 The expenses pertaining to the investments required in order to
enable portability of access codes shall be shared by the Concessionaire and the
other providers of telecommunications services, whether in the public or private
sector.
(S) 3 The expenses pertaining to the administration of the process of
assigning and holding access codes pursuant to the Numbering Regulations shall
be borne by the Concessionaire, under the terms of the Numbering Administration
Regulations.
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CHAPTER X RATE AND PAYMENT STRUCTURE
CLAUSE 10.1. The Concessionaire is required to offer all users the
Basic Local Service Plan, as provided in Annex 3, which is an integral part of
this Agreement.
SOLE PARAGRAPH The Basic Local Service Plan shall be the sole plan
for the entire area referred to in clause 2.1 and must state, under the terms
set forth by ANATEL, maximum amounts for each item of the rate structure defined
for the provision of Switched, Fixed-line Telephone Service. Said amounts shall
be revised and adjusted, in accordance with applicable standards.
CLAUSE 10.2. The Concessionaire may offer its subscribers
Supplemental Local Service Plans with rate criteria different from those in the
Basic Local Service Plan.
(S) 1 Subscribers shall be guaranteed the right to switch between the
various Local Service Plans offered by the Concessionaire, as provided by
regulation.
(S) 2 The Concessionaire is free to propose the rate structure for
the Supplemental Local Service Plans, provided it complies with clause 10.1 of
this Agreement.
(S) 3 The Concessionaire is required to offer its Supplemental Local
Service Plans, approved by ANATEL, to subscribers in a nondiscriminatory manner.
(S) 4 Supplemental Local Service Plans must be authorized by ANATEL
before being offered to the general public.
(S) 5 ANATEL must decide whether to approve Supplemental Local
Service Plans within 15 (fifteen) days of their having been submitted, and they
shall be considered to have been approved if ANATEL makes no decision within
this timeframe.
CLAUSE 10.3. The Concessionaire may offer discounts on the rates for
Local Service Plans provided it does so in an egalitarian and nondiscriminatory
manner. The Concessionaire shall not reduce amounts subjectively and must
observe the principles of fair competition.
SOLE PARAGRAPH The Concessionaire agrees to give its users ample and
prior notice of discounted rates for the service, and to communicate its notice
of discounted rates to ANATEL within 7 (seven) days after the rate reduction
takes effect.
CLAUSE 10.4. The Concessionaire agrees to publicize the rates charged
for the service which is the subject matter of the concession, in the manner
required by ANATEL.
CLAUSE 10.5. When new services, conveniences or features are
introduced in relation to the service granted hereby, the Concessionaire shall
submit its proposed rates to ANATEL for approval, without which no rate or price
may be charged.
10
<PAGE>
CLAUSE 10.6. Billing documents issued by the Concessionaire must be
presented in a detailed, clear, explanatory and self-evident manner, and must
distinguish the type and quantity of each service provided to the subscriber, as
provided by regulation.
SOLE PARAGRAPH The Concessionaire may list the amounts owed by the
subscriber within the billing document for premium services, as well as for
other conveniences or features related to the service granted hereby, provided
it does so in a clear and explicit manner.
CLAUSE 10.7. The Concessionaire shall collect network usage fees from
other providers of telecommunications services, in keeping with the standards
published by ANATEL.
CLAUSE 10.8 The Concessionaire shall offer a discount to those
subscribers affected by any discontinuance of the service granted hereby,
provided the subscriber was not the cause of discontinuance, and the discount
shall be prorated for the period during which the interruption occurred, as
provided by regulation.
CHAPTER XI RATE ADJUSTMENTS
CLAUSE 11.1. The rates listed in the Basic Local Service Plan Annex
3, may be adjusted by applying the formula below. This may be done no more than
once every 12 (twelve) months, at the initiative of ANATEL or the
Concessionaire, in keeping with the rules of economic legislation in force.
<TABLE>
<S> <C>
((}HAB/t/ + Sub/t/ + n/to/ x P/t/))} less than or equal to (Pounds)} (1-k) Ft ((}HAB/to/ + Sub/to/ + n/to/ x P/to/))
----- ------
36 36
Let:
HAB/t/=PRes/to/ x HABRes/t/ + PNRes/to/ x HABNRes/t/+ PTrunk/to/ x HABTrunk/t/
HAB/to/= PRes/to/ x HABRes/to/ + PNRes/to/ x HABNRes/to/ + PTrunk/to/ x HABTrunk/to/
Sub/t/ = PRes/to/ x SubRes/t/ + PNRes/to/ x SubNRes/t/ + PTrunk/to/ x SubTrunk/t/
Sub/to/ = PRes/to/ x SubRes/to/ + PNRes/to/ x SubNRes/to/ + PTrunk/to/ x SubTrunk/to/
</TABLE>
HABRes/t/ less than or equal to (Pounds)} HABRes/to/ x 1.09 x GPI-DA /t/
----------
GPI-DA /to/
HABNRes/t/ less than or equal to (Pounds)} HABNRes/to/ x 1.09 x GPI-DA /t/
----------
GPI-DA /to/
HABTrunk/t/ less than or equal to (Pounds)} HABTrunk/to/ x 1.09 x GPI-DA /t/
----------
GPI-DA /to/
11
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P/t/ less than or equal to (Pounds)} P/to/ x 1.09 x GPI-DA /t/
----------
GPI-DA /to/
SubRes /t/ less than or equal to (Pounds)} SubRes /to/ x 1.09 x GPI-DA /t/
----------
GPI-DA /to/
SubNRes /t/ less than or equal to (Pounds)} SubNRes /to/ x 1.09 x GPI-DA /t/
----------
GPI-DA /to/
SubTrunk /t/ less than or equal to (Pounds)} SubTrunk /to/ x 1.09 x GPI-DA /t/
----------
GPI-DA /to/
Where:
/t/ = proposed date of adjustment.
/to/ = date of the last adjustment or, in the case of the first adjustment,
April 1, 1998.
HAB = mean value of the installation fee, net of taxes.
HABRes = value of the installation fee for residential lines, net of taxes.
HABNRes = value of the installation fee for non-residential lines, net of taxes.
HABTrunk = value of the installation fee for trunk lines, net of taxes.
P = value of a pulse.
PRes/to/ = percentage of residential Basic Local Service Plan subscribers of the
total number of the Concessionaire's subscribers, since the last adjustment or,
in the case of the first adjustment, since April 1, 1998.
PNRes/to/ = percentage of non-residential Basic Local Service Plan subscribers
of the total number of the Concessionaire's subscribers since the last
adjustment or, in the case of the first adjustment, since April 1, 1998.
PTrunk/to/ = percentage of trunk line subscribers of the Basic Local Service
Plan of the total number of the Concessionaire's subscribers, since the last
adjustment or, in the case of the first adjustment, since April 1, 1998.
Sub = mean Subscription value
SubRes = value of the Residential Subscription, net of taxes.
SubNRes = value of the Non-Residential Subscription, net of taxes.
SubTrunk/t/ = value of the Trunk Subscription, net of taxes.
n/to/ = mean number of pulses billed per subscription of the Basic Local Service
Plan, considering the length of time since the last adjustment or, in the case
of the first adjustment, between April 1998 and the month prior to the proposed
date of the adjustment;
and
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Ft = GPI-DA/t/
--------
GPI-DA/to/
Where:
GPI-DA = General Price Index, Domestic Availability, issued by the Getulio
Vargas Foundation, or its successor index.
k = transfer factor.
(S) 1 The transfer factor shall be applied during the duration of the
concession in the following manner:
I Until December 31, 2000 it shall be equal to 0 (zero); and
II From January 1, 2001 until December 31, 2005, it shall be equal to
0.01 (zero point zero one).
(S) 2 In the event the adjustment period includes different transfer
factor values, a weighted average must be calculated thereof taking into account
the months during which each transfer factor value occurred.
(S) 3 In the event an adjustment takes place after more than twelve
months have gone by, the formula including the transfer factor must be applied
progressively, taking into account twelve-month periods, and then any remaining
months.
(S) 4 After 2005, new transfer factor values may be determined by
ANATEL in the event this Agreement is extended, depending upon the conditions
which exist at that time.
CLAUSE 11.2. Network usage fees shall be adjusted by applying the
following formulas:
<TABLE>
<S> <C>
24 24
SigmaA} (UF-LNj/t/x Mj/to/) less than or equal to (Pounds)} (1-k) Ft SigmaA}
(UF-LNj/to/ x Mj/to/)
Where:
UF-LNj usage fee for the local network during the "j" period.
Mj/to/ Number of minutes of use of the Concessionaire's local network during the
"j" period by domestic and international long distance carriers, either since
the last rate adjustment or, in the case of the first adjustment, since April 1,
1998.
/t/ = date of the proposed adjustment.
/to/ = date of the last adjustment or, in the case of the first adjustment, April
1, 1998; and
/Ft/ = GPI-DA/t/
--------
GPI-DA/to/
</TABLE>
13
<PAGE>
Where:
GPI-DA = General Price Index, Domestic Availability, issued by the Getulio
Vargas Foundation, or its successor index.
k = transfer factor.
(S) 1 The transfer factor shall be applied during the duration of the
concession in the following manner:
I Until December 31, 2000 it shall be equal to 0 (zero);
II From January 1, 2001 until December 31, 2001, it shall be equal to
0.05 (zero point zero five);
III From January 1, 2002 until December 31, 2002, it shall be equal
to 0.1 (zero point one);
IV From January 1, 2003 until December 31, 2003, it shall be equal to
0.15 (zero point fifteen); and
V From January 1, 2004 until December 31, 2005, it shall be equal to
0.2 (zero point two).
(S) 2 In the event the adjustment period includes different transfer
factor values, a weighted average must be calculated thereof taking into account
the months during which each transfer factor value occurred.
(S) 3 In the event an adjustment takes place after more than twelve
months have gone by, the formula including the transfer factor must be applied
progressively, taking into account twelve-month periods, and then any remaining
months.
(S) 4 After 2005, new transfer factor values may be determined by
ANATEL in the event this Agreement is extended, depending upon the conditions
which exist at that time.
CHAPTER XII SAFEGUARDING THE ECONOMIC WELLBEING OF THE CONCESSIONAIRE AND
REVISION OF RATES
CLAUSE 12.1. - Preserving a fair balance, under a fully competitive
system, between the service provided by the Concessionaire and its remuneration
is a basic tenet of this Agreement. It is forbidden for any party to unjustly
enrich itself at the expense of any other party or the users of the service,
under the terms set forth in this Chapter.
(S) 1 The Concessionaire shall not be required to suffer any damages
resulting from this Agreement, unless they result from any of the following
factors:
I From its negligence, ineptitude or oversight in operating the
service granted hereby;
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<PAGE>
II From the normal risks of business activity;
III From the inefficient management of its business, including the
payment of operating and administrative expenses which are
incompatible with the parameters demonstrated in the market; or
IV From its failure to take advantage of existing opportunities in
the market, including expanding, extending and increasing the service
provided.
(S) 2 The Concessionaire is prohibited from unjustly profiting from
any economic gain not resulting directly from its operational efficiency,
especially that which results from the issuance of new rules governing the
service granted hereby.
(S) 3 The Concessionaire is entitled to restructure its initial
obligations and compensation scheme in the event that a force majeure or other
disaster significantly affects the operation of the service granted hereby.
However, the actions of private-sector service providers in such a situation
shall serve as the standard of reasonable conduct.
(S) 4 When evaluating the appropriateness of the restructuring
addressed in the preceding paragraph, it shall be taken into account whether,
among other factors, the Insurance Plan provided for in clause 23.1 covers the
event which caused the initial economic situation to change.
CLAUSE 12.2. The economic basis of the Agreement shall be re-
established when it can be demonstrated that none of the factors listed in (S) 1
of the previous clause have occurred. This shall preferably be accomplished by
the revision of rates, or through any other mechanism which, in the view of
ANATEL, is capable of correcting the situation.
(S) 1 The revision of rates precludes any other mechanism used to
deter unjust enrichment by any party, which is displaced by the event to which
the rate revision refers.
(S) 2 A single, complete and final measure shall be taken in order to
correct the event that gave rise to the distortion.
CLAUSE 12.3. Independent of clause 12.1, revising the rates listed in
the Basic Local Service Plan in favor of the Concessionaire or the users shall
be called for, under the terms of Art. 108 of Law No. 9,472 of 1997, in the
following specific situations:
I Unilateral modification of this Agreement imposed by ANATEL,
involving significant upward or downward variations in expenses or
income, for instance, when the raising or lowering of rates is
required in order to prevent any of the parties from making
unjustified profits;
II A change in tax law subsequent to the signing of this Agreement
which involves an increase or reduction in the potential profitability
of the Concessionaire;
15
<PAGE>
III Supervening events resulting from acts of governance or the
Administration which demonstrably affect the expenses of the
Concessionaire;
IV Specific changes in legislation which have a direct impact upon
the income of the Concessionaire in such a way as to affect the
continuity or quality of the service provided;
V Legislative changes which benefit the Concessionaire, including
those which grant or cancel exemptions, reductions, discounts or any
other tax or rate-related privileges, in keeping with the provisions
of (S) 3, Art. 108 of Law No. 9,472 of 1997.
(S) 1 When reviewing rates, any damage or profit losses sustained by
the Concessionaire shall not be taken into account if they result from the free
operation of the service granted hereby under competitive conditions, or from
the inefficient management of its business.
(S) 2 The revision scenario anticipated in paragraph II of this
clause shall not be applicable in the event the change in the tax law involves
the creation, elimination, increase or lowering of incidental taxes on the
Concessionaire's income or profits, and not involving and administrative or
operational tax.
(S) 3 The rate revision scenarios anticipated by this clause shall
not apply if the events leading to the revision are already covered by the
Insurance Plan provided for in clause 23.1.
(S) 4 The Concessionaire's contributions to the Fund for Universal
Telecommunications Services and to the Fund for the Development of
Telecommunications Technology shall not occasion the revision of rates.
CLAUSE 12.4. Rate revisions shall not be applicable if the cause
motivating the Concessionaire's request can be neutralized through the efficient
operation of the service granted hereby, market expansion, or the generation of
alternative or supplementary revenue in associated with the subject matter of
this Agreement, in keeping with current competitive conditions.
SOLE PARAGRAPH Reductions in revenue which result from discounts or
rate reductions shall not occasion the revision of rates.
CLAUSE 12.5. The rate revision procedure may be initiated at the
request of the Concessionaire, or by a decision of ANATEL.
(S) 1 In the event the revision procedure is initiated by the
Concessionaire, the following requirements must be observed:
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I The request must be accompanied by a technical or expert report
demonstrating the precise impact of the occurrence upon the
determination of rates or the estimated revenue of the Concessionaire;
II The request must be accompanied by all documents required to
substantiate the claim;
III The Concessionaire must explain its claim for rate revision, and
report on the impact and possible rate-balancing alternatives;
IV The Concessionaire shall bear all expenses for the research and
studies needed to fully back its claim.
(S) 2 Rate-revision procedures initiated by ANATEL must be
communicated to the Concessionaire, allowing it time to respond, and shall be
accompanied by copies of the reports and studies carried out in order define the
circumstances occasioning the revision.
(S) 3 The rate-revision procedure shall be concluded within 120 (one
hundred twenty) days, unless it becomes necessary to extend it in order to
conclude the proceedings.
(S) 4 The request must be approved by ANATEL, and the Concessionaire
must fully divulge the new maximum amounts of the revised rates, under the terms
stated in this Agreement.
CHAPTER XIII ALTERNATIVE, SUPPLEMENTARY AND ANCILLARY REVENUE
CLAUSE 13.1. The Concessionaire may obtain other, alternative sources
of revenue, provided this does not involve noncompliance with the standards set
forth in the General Services Regulations and other standards published by
ANATEL.
(S) 1 With the exception of circumstances provided for in specific
legislation, the concession or authorization of cable television service in the
same area referred to in clause 2.1 shall not be granted by nor transferred from
ANATEL to the Concessionaire, or its affiliates (an entity that the
Concessionaire controls, or by which it is controlled) until such time as said
prohibition is expressly revoked.
(S) 2 The Concessionaire and its affiliates may not make the
provision of the service granted herein contingent upon the consumption of any
other service, nor may they offer advantages to users who benefit from services
in addition to the service that is the subject matter of this Agreement,
including those provided by third parties.
CLAUSE 13.2. ANATEL may order the Concessionaire to offer users
conveniences or features related to the subject matter of the concession, in
which case the parties must adjust the unit prices of said services, taking into
account market parameters and the right to fair compensation.
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CHAPTER XIV RIGHTS AND PRIVILEGES OF USERS AND OTHER SERVICE PROVIDERS
CLAUSE 14.1. In accordance with the rules and guidelines set forth in
this Agreement, users of the service granted by this concession are entitled to
the following rights:
I To access and use the service in accordance with the standards of
quality, regularity and efficiency provided for by this Agreement, in
its annexes and according to current standards;
II The possibility of requesting the suspension or cancellation of
the service provided by the Concessionaire;
III To receive nondiscriminatory treatment with regard to the terms
of access and use of the service;
IV To obtain adequate information regarding the terms under which the
service is provided and the rates charged;
V The inviolability and secrecy of communications, respecting
constitutional and legal provisions regarding the privacy of
telecommunication;
VI To arrange, without charge, for their access code not to be
disclosed, by placing a request with the Concessionaire's customer
service department;
VII The non-suspension of service unless requested, except in the
case of nonpayment of the debt resulting directly from its use, or
noncompliance with the duties set forth in Art. 4 of Law No. 9,472 of
1997;
VIII Prior notification of any and all changes to the terms of
service that affect them directly or indirectly;
IX Confidentiality of billing documents and the use of their personal
information by the Concessionaire;
X To receive an efficient and prompt response from the Concessionaire
to their complaints, under the terms provided for in clause 15.7;
XI To lodge claims or petitions against the Concessionaire with
ANATEL and consumer rights organizations;
XII To receive compensation for harm sustained due to the violation
of their rights;
XIII Compliance with the terms of the Subscription Agreement which
they entered into for the service;
XIV Freedom to choose their domestic and international long distance
carrier;
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XV Respect for their right to portable access codes, in accordance
with the provisions of the Numbering Regulations published by ANATEL;
XVI Not to be required to consume services or acquire goods or
equipment in which they have no interest, as well as not to be
compelled to satisfy certain conditions in order to receive the
service which is the subject matter of this concession, as provided by
regulation; and
XVII Replacement of their access code as provided by regulation.
(S) 1 The Concessionaire shall comply with the duty to safeguard the
privacy inherent to telephone service and the confidentiality of data and
information. Moreover, it shall employ the means and technology to guarantee
users this right.
(S) 2 Upon the order of judicial authorities, the Concessionaire
shall make available the technological resources required to access private
telecommunications, as provided by regulation.
CLAUSE 14.2. In addition to the rights referred to in the preceding
clause, other providers of telecommunications services shall be guaranteed the
following rights:
I To interconnect with the Concessionaire's network under
nondiscriminatory business and operating conditions, under technically
suitable conditions, and at equally-applied and fair prices which
strictly consider the necessity of offering the service, in accordance
with the regulations published by ANATEL;
II To receive the service requested from the Concessionaire without
any kind of discrimination, at market prices or prices negotiated
between the parties, and at any discount which may apply owing to
savings from bulk consumption, in accordance with regulation;
III To obtain all information required to provide the service they
themselves operate, including billing information, except as regards
the Concessionaire's right to protect its trade secrets, as well as
the rights of third parties.
(S) 1 Conflicts between the Concessionaire and other service
providers shall be resolved administratively by ANATEL, under the terms of
regulations to be published by ANATEL.
(S) 2 ANATEL shall always oversee the relations between the
Concessionaire and the carriers using the service granted herein, in such a way
as to discourage conduct that may involve unfair harm to any of the parties, or
that undermines economic order and free competition. In these instances, once it
has exercised its authority, it shall notify the Administrative Council of
Economic Defense CADE of such conduct, in the manner provided for in Art. 19,
paragraph XIX of Law No. 9,472 of 1997.
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CLAUSE 14.3. In accordance with regulation, all users shall be
guaranteed the right to receive and use premium services, which must be provided
in adequate technical condition, and at equally-applied and fair prices. The
Concessionaire is prohibited from blocking or restricting the use of the service
granted herein in any way.
SOLE PARAGRAPH A premium service is understood to be any activity
that enhances the service which is the subject matter of this concession, but
should not be confused with new features related to access, storage,
presentation, transfer or recovery of information.
CHAPTER XV RIGHTS, PRIVILEGES AND OBLIGATIONS OF THE CONCESSIONAIRE
CLAUSE 15.1. In addition to the other obligations arising from this
Agreement and inherent to the provision of the service granted hereby, it is the
duty of the Concessionaire:
I To provide the service granted hereby in strict compliance with the
provisions of this Agreement, and to comply fully with the regulations
published by ANATEL;
II To install all equipment and facilities needed to provide the
service which is the subject matter of the concession and ensure its
continuity, contemporaneity, expansion and universality, following the
specifications set forth in this Agreement;
III To keep the telecommunications network in optimum operating
condition, with quantities, configurations and locations which are
proper and sufficient to provide suitable service;
IV To provide the financial resources required to comply with the
standards for universal service and continuity set forth in this
Agreement, and to provide adequate service;
V To provide ANATEL, in the manner and as often as provided by
regulation, with reports and information of a technical, operational,
business, accounting and financial nature, as well as to provide it
with all requested data and elements regarding the service granted
hereby;
VI To maintain all public-use lines, whether permanent or temporary,
in the manner prescribed in this Agreement;
VII To submit to audits by ANATEL and allow its agents access to its
company facilities as well as to its accounting records;
VIII To keep separate accounting records for each department, as well
as to keep an up-to-date inventory of the goods and components that
make up the fixed assets of the company;
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IX To maintain a system for providing service and information to
users, under the terms of clause 15.7;
X To safeguard the assets involved in providing the service granted
hereby;
XI To submit to ANATEL for prior approval the draft as well as all
changes, amendments or variations applicable to the Standard Agreement
entered into with subscribers;
XII To submit for prior approval from ANATEL the operating agreements
or service, partnership or joint-venture agreements it wishes to sign
with foreign entities;
XIII To send for publication in the ANATEL library copies of the
agreements and contracts pertaining to the provision of service to
Brazilian and non-Brazilian providers of telecommunications services;
XIV To divulge, directly or through third parties, the access numbers
of its own subscribers and other subscribers to Switched, Fixed-line
Telephone Service providers, whether in the public or private sector,
in the concession area with the exception of those subscribers who
specifically request that their personal information not be given out;
XV To provide a list of its subscribers to whomever it wishes, at
prices and within timeframes which are reasonable, and in a
nondiscriminatory manner;
XVI To rigorously respect the secrecy and confidentiality of
telecommunications, in accordance with legal and contractual
obligations;
XVII To respect the privacy of subscribers as regards billing
documents and all personal information pertaining to them;
XVIII To comply, at its own expense and in accordance with the
provisions of clause 7.2 of this Agreement, with all universal service
objectives which are expressly stated herein;
XIX To implement any projects for the expansion and universalization
of service which may be ordered by ANATEL, in conformity with the
established level of compensation, timeframe and terms of
implementation, in accordance with the provisions of clause 7.3;
XX To submit to ANATEL for prior approval any and all changes it
wishes to make to its bylaws regarding company spin-offs, mergers,
transformations and incorporations, as well as any transfer of
control, or change in its capital stock;
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XXI To guarantee interconnection with its network to any other
telecommunications service provider, in keeping with specific
regulation and the standards of this Agreement;
XXII To make its billing and collection services available to other
providers of Switched, Fixed-line Telephone Services, and charge them
fair and compatible prices under the terms of this Agreement and the
regulations;
XXIII To respect all the rights of other telecommunications service
providers and refrain from any discriminatory conduct towards them or
attempt to obstruct their activity;
XXIV To use equipment with certification either issued or accepted by
ANATEL, whenever required to do so by regulation;
XXV To comply with the norms and technical standards in force in
Brazil, refraining from any discriminatory practice with regard to
goods and equipment manufactured therein;
XXVI In the case of disasters, to make available to civil defense
authorities and agents all requested facilities, systems and access
thereto, with a view to providing them with support or protecting
affected populations;
XXVII To give priority to assisting the President of the Republic,
his official representatives, his support team and staff, as well as
to foreign heads of state making official visits or trips through
Brazilian territory, for whom it shall make available the means
required to communicate adequately, in keeping with the regulations
published by ANATEL;
XXVIII To pay the fee set by ANATEL in the event the duration of the
concession is extended, under the terms of (S) 1, Art. 207 of Law No.
9,472 of 1997, and clause 3.3 of this Agreement;
XXIX To pay all inspection and operating costs for its installations,
as provided by regulation;
XXX To publish annually, regardless of the legal system to which it
is subject, the balance sheet and year-end financial statements, as
set forth in the legislation in force and the regulations published by
ANATEL;
XXXI To comply with current Brazilian standards as regards the use of
non-Brazilian labor, including in positions requiring advanced
qualifications;
XXXII To compensate users for damages which have in fact resulted
from the failure to provide service which would have been expected in
view of the
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continuity guidelines and universal service objectives provided for in
this Agreement;
XXXIII When entering into contracts for management services,
including technical assistance, with non-Brazilian entities not to
spend more than the following amounts, as a percentage of the annual
revenue from Switched, Fixed-line Telephone Service:
a) 1% (one percent) per year, until 12/31/2000;
b) 0.5% (zero point five percent) per year, from 01/01/2001 until
12/31/2002; and
c) 0.2% (zero point two percent) per year, as of 01/01/2003;
XXXIV To comply with agreements between Brazil and other countries
and international organizations, in the manner laid down by ANATEL;
and
XXXV To comply with the contracts entered into with TELEBRAS, the
subject matter of which is the provision of services by the Research
and Development Center CPqD or its successor.
SOLE PARAGRAPH Decisions concerning paragraph XXXIII of this clause
and involving service and technical assistance contracts between the
Concessionaire and third parties with ties to the majority shareholders, must be
made at extraordinary shareholder meetings, and the Concessionaire must state in
its corporate bylaws, until 12/31/98, that preferred stock shall have voting
rights in such decisions, without detriment to the provisions of (S) 1, Article
115 of Law No. 6,404, of December 15, 1976.
CLAUSE 15.2. Without detriment to the other provisions set forth in
this Agreement, and those privileges guaranteed by law, the Concessionaire has
the following rights:
I To operate the conceded service within the framework of its
corporate strategy, and to define freely its investments, in
accordance with the regulations published by ANATEL and the provisions
of this Agreement
II To appoint a representative to monitor the inspection activities
of ANATEL;
III To interrupt, according to the terms of Clause 8.3 of this
Agreement, the service granted hereby, or not fulfill the service
requests, of subscribers who fail to fulfill their contractual
obligations towards the Concessionaire;
IV- To request arbitration proceedings under the circumstances and in
the manner prescribed by Chapter XXX of this Agreement;
V To operate the service granted hereby under business conditions
without being subject to changes involving unjustified enrichment of
the government or users, under the terms provided for in Chapter XII;
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VI To request the revision of the rates applied to the conceded
service, in the manner provided for in this Agreement;
VII To request that ANATEL keep confidential the information it
gathers during its inspection/audit activities, under the terms
provided for in this Agreement;
VIII To use equipment and infrastructure which do not belong to it
when carrying out services, in accordance with clause 21.1 of this
Agreement; and
IX To contract with third parties to develop activities that are an
inherent part of, incidental to or which supplement the service
granted hereby, as well as to implement associated projects.
CLAUSE 15.3. For as long as this Agreement is in force, the
Concessionaire shall be solely liable, with regard to third parties, for the
actions of its personnel, employees and contractors involved in the provision of
Switched, Fixed-line Telephone Service, as well as for the use of equipment,
installations and networks, and the government and ANATEL are held exempt from
all claims and/or indemnities.
CLAUSE 15.4. The Concessionaire may not obstruct works in the public
interest, regardless of their nature, in the event it becomes necessary to
remove installations or telephone networks in order to render feasible
interventions promoted, either directly or indirectly, by any body or
organization of the public Administration.
CLAUSE 15.5. The Concessionaire must execute agreements directly with
each Municipal government in the areas it operates the service granted hereby,
as well as with other public service utilities, as regards the location of the
poles and cross bars used to hang aerial lines and cables, and the underground
conduits and pipes used to run cables under streets and public parks.
(S) 1 The Concessionaire shall make arrangements with the holders of
public or private property over or under which it has to run conduits or pipes,
or install supports to hold said conduits and pipes, and shall obtain the
corresponding consent or easements for such purposes.
(S) 2 The Concessionaire must seek arrangements with the respective
municipal authorities in order to maintain conditions required to overcome
interference in the network required to provide the service granted hereby,
including the felling and pruning of trees.
CLAUSE 15.6. Under the terms of the provisions of Art. 73 of Law No.
9,472 of 1997, the Concessionaire may use poles, pipes, conduits and easements
belonging to or controlled by other providers of telecommunications services or
other public utilities.
(S) 1 The use of the facilities referred to in the preceding
paragraph must be carried out in a nondiscriminatory way, and at fair and
reasonable prices.
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(S) 2 The Concessionaire must make the facilities it owns or
controls, referred to in the first paragraph of this clause, available to the
other providers of telecommunications services, classified by ANATEL as public
utilities, and do so in accordance with the same conditions provided for in the
preceding paragraph.
(S) 3 In the event the Concessionaire does not reach an agreement
with other service providers regarding the use of the facilities referred to in
this clause, it shall be ANATEL's duty, either alone or together with other
involved regulatory bodies, to define the conditions of said use.
CLAUSE 15.7. During the entire duration of this concession, the
Concessionaire shall maintain a user information and service center operating 24
(twenty-four) hours a day, capable of receiving and processing requests,
complaints and claims from users, either in person or via any form of long
distance communication.
(S) 1 The Concessionaire must make available to all users the
addresses and access codes of its information and service center, which are
required to be listed in the Standard Contract entered into with service
subscribers.
(S) 2 The Concessionaire must make available and announce an easy-to-
dial, toll-free number for users to make requests via telephone.
(S) 3 All requests, claims or complaints made by users, by whatever
means, must be assigned an order number, which shall be given to the concerned
party so that he or she can be assisted.
(S) 4 The user shall be informed, within the timeframe defined in the
General Plan on Quality, of the measures taken in response to his or her
request, claim or complaint.
(S) 5 In the event that ANATEL notes that users are having difficulty
obtaining access to the information and service center, it may order the
Concessionaire to increase the availability of access, or risk being found
guilty of not complying with the obligation provided for in this clause.
CLAUSE 15.8 When hiring services and acquiring equipment and
materials associated with the provision of the service which is the subject
matter of this Agreement, the Concessionaire commits itself to field offers from
independent suppliers, including those which are state-run, and to base its
decisions, with regard to the various offers submitted, on the objective
criteria of price, conditions of delivery and technical specifications set forth
in the relevant regulations.
(S) 1 In the event of equivalent offers, the Concessionaire agrees to
use as the deciding criteria, the preference of services offered by companies
located in Brazil, and equipment and materials produced in Brazil, particularly
those produced using Brazilian technology. The issue of equivalent offers shall
be automatically decided if, cumulatively:
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I The price in Brazil of the domestic product is lower than or equal
to that of the imported product, tax included;
II The delivery schedule meets the Concessionaire's needs; and
III The technical specifications established by relevant regulation
are met and the product has certification that has either been issued
or accepted by ANATEL, when applicable.
(S) 2 Services are understood to mean those relating to research and
development, planning, setting up and physically installing, operating,
maintaining, supervising and performing evaluation tests of telecommunication
systems.
(S) 3 ANATEL shall formulate regulations governing the execution of
the provisions in this clause, including applicable penalties.
CHAPTER XVI OBLIGATIONS AND PREROGATIVES OF ANATEL
CLAUSE 16.1. In addition to the prerogatives that are an inherent
part of its function as a regulatory body, and other obligations under this
Agreement, ANATEL shall be responsible for:
I Overseeing and monitoring the provision of the service granted
hereby and the safeguarding of revertible assets, ensuring compliance
with the standards, specifications and instructions set forth in this
Agreement and its annexes;
II Carrying out site visits to inspect the adequacy of installations
and equipment, and ordering any necessary rectifications, repairs,
removals, reconstruction or replacements, at the expense of the
Concessionaire;
III Continually regulating the execution of the conceded service;
IV Intervening when necessary in the execution of the service granted
hereby in order to ensure its regularity and faithful compliance with
the Agreement and relevant legal standards;
V Applying the penalties provided for by regulation of the service
and specifically, by this Agreement;
VI Reviewing the Supplemental Local Service Plans submitted by the
Concessionaire;
VII Authorizing the adjustment of rates and revising them, under the
terms of, and in accordance with, the provisions of this Agreement;
VIII Acting within the limits set forth in this Agreement to prevent
the parties from unjustified enrichment, under the terms of this
Agreement;
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IX Ensuring the high quality of the service granted hereby,
accepting, processing and resolving complaints and claims from users,
and informing them, within ninety days, of the measures taken to curb
infringements upon their rights;
X Declaring the termination of the Concession in the cases provided
for in this Agreement;
XI Guaranteeing interconnectivity, and settling any disputes which
arise between the Concessionaire and other service providers;
XII Ensuring compliance with the universal service objectives
provided for in this Agreement, and with any objectives set forth in
future Objectives Plans;
XIII Continually overseeing the relations between the Concessionaire
and other providers of telecommunications services, and settling any
disputes arising among them;
XIV Discouraging conduct by the Concessionaire that runs contrary to
the system of free competition, in keeping with the legal authority of
the Administrative Council of Economic Defense CADE;
XV Submitting to the President of the Republic, at the request of the
Concessionaire and through the intermediary of the Ministry of
Communications, proposals for declarations of public interest, with a
view to exercising eminent domain or implementing public easements
over the property needed to establish or maintain the service which is
the subject matter of this Agreement;
XVI Auditing the service granted hereby under the terms set forth in
this Agreement; and
XVII Collecting fees for FISTEL and adopting the measures provided
for in current legislation.
CHAPTER XVII THE CONCESSIONAIRE
CLAUSE 17.1. The Concessionaire is a company incorporated under
Brazilian law, as a corporation (sociedade anonima), with the sole purpose of
operating the service that is the subject matter of this concession, with the
exception of those services provided for under the terms of (S) 3, Art. 207 of
Law No. 9,472 of 1997.
SOLE PARAGRAPH In the event that changes to the Concessionaire's
bylaws are approved, the documents formalizing such changes shall be sent to
ANATEL for filing, and shall be fully incorporated into this Agreement.
CLAUSE 17.2. The Concessionaire and those entities which control it
agree to maintain, for the entire duration of the concession and its extension,
all of the service conditions and capabilities which existed at the time this
Agreement entered into force.
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CLAUSE 17.3. The Concessionaire and those entities which control it
agree to ensure the actual existence on Brazilian territory, during the
concession period and the extension thereof, of centers for decision-making and
the implementation of strategic, managerial and technical decisions involved in
carrying out this Agreement, as well as to ensure this obligation is reflected
in the make-up and decision-making processes of its governing bodies.
SOLE PARAGRAPH The Concessionaire must include provisions in its
bylaws, until December 31, 1998, which guarantee compliance with the provisions
of the preceding paragraph.
CHAPTER XVIII ASSIGNMENT OF THE CONCESSION AND CHANGE OF CONTROL OF THE
CONCESSIONAIRE
CLAUSE 18.1. Assignment of the concession, or the change of direct or
indirect control over the Concessionaire, may only be authorized by ANATEL, in
keeping with the General Concession Plan and Art. 202 of Law No. 9,472 of 1997,
provided that:
I The assignee fulfills all of the requirements established under the
terms of Art. 200 of Law No. 9,472 of 1997; and
II The assignment or change does not undermine competition, or
threaten the execution of this Agreement or the general standards for
the protection of economic order.
SOLE PARAGRAPH Failure to comply with any provision of this clause
shall result in the forfeiture of this concession.
CLAUSE 18.2. The capital stock of the Concessionaire may be pledged
freely, and such an assignment does not affect its control.
SOLE PARAGRAPH If the pledging of stock results in the taxation of
the assets of the Concessionaire, provisions must be made in the financing
agreements in order to submit the creditors, in the event of foreclosure, to the
rules set forth in this Chapter.
CHAPTER XIX INSPECTION SYSTEM
CLAUSE 19.1. - ANATEL shall carry out inspections of the service
granted herein in order to ensure compliance with the prerequisites of universal
service and continuity, which are an inherent part of the public service being
provided. It shall also ensure fulfillment of the objectives and commitments set
forth in this Agreement.
(S) 1 The inspections to be performed by ANATEL shall involve
inspecting and monitoring the Concessionaire's activities, equipment and
facilities, which in turn requires complete access to all of the
Concessionaire's or third parties' data and information.
(S) 2 The information gathered during its inspection activities shall
be published by its library, with the exception of information which, at the
Concessionaire's request, is considered by ANATEL to be confidential in nature.
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(S) 3 Any information judged confidential in nature under the terms
of the preceding paragraph shall only be used in proceedings related to this
Agreement, and any requests for further dissemination of such information,
whether broad or restricted, must be made to ANATEL, or whomever it has
indicated.
CLAUSE 19.2. The Concessionaire, through the intermediary of a named
representative, may monitor any and all of ANATEL's inspection activities. It
may not obstruct or prevent said inspection activities, at the risk of being
subject to the penalties provided for in this Agreement.
CHAPTER XX REPORTING OBLIGATIONS OF THE CONCESSIONAIRE
CLAUSE 20.1. As provided by regulation, the Concessionaire must
periodically send ANATEL statistical and status reports on all services
provided, including, among other elements, figures on the expansion and scope of
the telephone network. The Concessionaire must also report on the technological
status of the equipment used.
CHAPTER XXI CONCESSION-RELATED ASSETS
CLAUSE 21.1. The assets related to this concession consist of all
assets owned by the Concessionaire and required to provide the service conceded
herein, especially those classified as such in Annex 1 Classification of
Revertible Assets Used to Provide Local, Switched, Fixed-Point Telephone
Service.
(S) 1 Concession-related assets also include permits that have been
granted for the use of the radio frequency spectrum and, where applicable, usage
rights for orbital positions, in accordance with Articles 48 and 161 of Law No.
9,472 of 1997 and the provisions of clause 4.1 of this Agreement.
(S) 2 With regard to concession-related assets, the Concessionaire
must receive the prior and express consent of ANATEL for the direct use of
equipment, infrastructure, software systems, or any other type of asset that is
not its property, in order to provide the service conceded herein. ANATEL may
exempt it from this requirement in the cases and circumstances provided for by
regulation.
(S) 3 If the continuity of service is at risk, or there is an
impediment to the reversion of a concession-related asset, ANATEL may withhold
authorization to use third-party assets, or require that the corresponding
Agreement contain a clause stipulating that the owner agrees, in the event of
termination of the concession, to uphold the Agreement and transfer to ANATEL
the rights pertaining thereto.
CHAPTER XXII THE SYSTEM OF REVERSION
CLAUSE 22.1. In the event of the termination of the concession, all
concession-related assets shall revert automatically to ANATEL, as indicated in
Chapter XXI above, and the Concessionaire shall retain its right to the
compensation provided for by law and this Agreement.
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SOLE PARAGRAPH Within 180 (one hundred eighty) days following the
termination of the concession, an inventory shall be taken of the assets
pertaining thereto, and an Asset Restitution and Reversion Statement shall be
drawn up, with a detailed account of the condition of said assets. One or more
representatives of the Concessionaire shall be authorized to monitor the
foregoing.
CLAUSE 22.2. The Concessionaire commits itself to remit revertible
assets in a perfect state of operation, utilization and maintenance, except as
regards normal wear and tear through usage.
SOLE PARAGRAPH Revertible assets shall be transferred to ANATEL free
of any charge or encumbrance, while taking into account the scenario stated in
paragraph 2 of the following clause.
CLAUSE 22.3. The reversion of assets, as addressed in Chapter XXI
above, which occurs at the end of the contractual term, shall be carried out
without compensation, except as provided for in this clause.
(S) 1 The Concessionaire shall only be compensated if, upon the
termination of the Concession, there exist partially-amortized assets, the
acquisition of which had been previously authorized by ANATEL, or which were
acquired prior to the signing of this Agreement, for the purpose of guaranteeing
reliable, up-to-date service.
(S) 2 In place of or in addition to the compensation provided for in
the preceding paragraph, ANATEL may allow the assignment of assets that have
been pledged as security for its own financing needs, and assume any financed
portion which is still outstanding.
CLAUSE 22.4. Upon termination of the Concession, ANATEL shall assess
the assets referred to in clause 21.1, and may refuse the reversion of assets it
considers dispensable to, or useless in the operation of the service granted
hereby. The Concessionaire is guaranteed the right to contest the foregoing,
including by way of reports or studies prepared and presented at its expense,
demonstrating the need for reversion.
SOLE PARAGRAPH In the event the Concessionaire disagrees with
ANATEL's decision regarding the provisions of this clause, recourse to the
dispute-resolution process provided for in this Agreement shall be allowed.
CHAPTER XXIII INSURANCE PLAN
CLAUSE 23.1. During the entire time the concession is in force, the
Concessionaire must subscribe to the insurance policies listed below in order to
ensure effective and comprehensive coverage of the inherent risks involved in
carrying out all of the activities contemplated within this Agreement. The
selected Insurance Company must be registered with insurance industry regulatory
agencies, and its coverage capacity must be in keeping with the corporate
purpose being insured:
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I Comprehensive insurance against material damage, covering the loss,
destruction or damage of any and all assets associated with the
concession. Said insurance must provide blanket coverage, in
accordance with international standards;
II Business interruption insurance which covers, at a minimum,
variations in the Concessionaire's income resulting from accidents, or
changes in the operating terms of the Agreement, which affect
operating costs and which are not covered by insurance against
material damage, provided that taking out this type of insurance is
allowed by Brazilian standards and expressly authorized by the
Brazilian Reinsurance Institute - IRB or an equivalent organization;
and
III Insurance covering the achievement of the quality and universal
service requirements provided for in this Agreement (i.e., a
performance bond, a letter of credit and the amount kept as a deposit)
with a value corresponding to 10% of the estimated annual amount
invested in order to achieve the objectives provided for in this
Agreement.
(S) 1 The Concessionaire must arrange to have its insurance policies
include the requirement that the Insurer inform the Concessionaire and ANATEL,
in writing and with at least 10 (ten) days' notice, of any information which may
entail the complete or partial cancellation of the policies taken out, a
reduction in coverage, an increase in deductibles, or a lowering of the values
covered.
(S) 2 Policies taken out in order to comply with the provisions of
this clause may not contain obligations, restrictions or provisions which
contradict the provisions of this Agreement or regulations, and must contain an
express statement by the Insurer that it is completely familiar with this
Agreement, specifically as regards the limits of the Concessionaire's rights.
(S) 3 In the event the Concessionaire fails to comply with the
requirement to keep the required insurance policies in effect, then ANATEL,
notwithstanding its ability to order intervention in or the termination of this
concession, may then take out said insurance and directly pay for the
corresponding premiums, at the expense of the Concessionaire.
(S) 4 Every year, by the end of the month of January, the
Concessionaire must submit a certificate issued by the insurers, confirming that
all the premiums due for the preceding year have been paid, and that the
policies have taken full effect or been renewed.
(S) 5 The policies referred to in this clause must comply with the
following deadlines for presentation and activation:
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I The policy referred to in item I of the first paragraph of this
clause must be presented within 90 (ninety) days as of the signing of
this Agreement, and must take immediate effect;
II The policy referred to in item II of the first paragraph of this
clause must be presented by November 30, 1999, and take effect as of
January 1, 2000; and
III The policy referred to in item III of the first paragraph of this
clause must be presented by November 30, 2000, and take effect as of
January 1, 2001.
(S) 6 ANATEL may change the coverage or the presentation deadlines
for the policies referred to in this clause so as to adapt said requirements to
the regulations published by the Private Insurance Commission - SUSEP, or to the
terms established by the Brazilian Reinsurance Institute - IRB. It may also do
so if standards are published which interfere with the contracting of the
insurance referred to herein, or if the market is not ample or competitive
enough to allow the insurance to be taken out at a reasonable cost.
CHAPTER XXIV - INTERCONNECTION
CLAUSE 24.1. The Concessionaire is required to allow, facilitate,
provide and implement the interconnection of other telecommunications service
providers' networks with the network it operates, whether they are in the public
or private sector, and whenever they so request. In so doing, it shall enforce
and observe the regulations published by ANATEL pertaining thereto.
CLAUSE 24.2. The network usage fees required as of the signing of
this Agreement are those listed in Administrative Ruling No. 2,505 of December
20, 1996, issued by the Ministry of Communications, and may be updated and
reviewed in keeping with the provisions of this Agreement as provided by
regulation.
CLAUSE 24.3. The Concessionaire shall enjoy the same rights, and
observe the same terms of interconnection, as the ones applying to other service
providers.
SOLE PARAGRAPH The Concessionaire must maintain the elements of its
network for interconnection at the most technically advanced level possible, in
accordance with ANATEL regulations.
CHAPTER XXV - PENALTIES
CLAUSE 25.1. In the execution of this Agreement, the Concessionaire
shall be subject to the following penalties, notwithstanding other penalties
provided for by regulation, which shall be applied by way of justified decisions
by ANATEL, and the former shall be guaranteed the right to defend itself under
the terms of the Internal Regulations.
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I For violations of the provisions of this Agreement resulting in
non-fulfillment of universal service objectives, there shall be a fine
of up to R$50,000,000.00 (fifty million Brazilian reais);
II For acts or omissions contrary to the provisions set forth in this
Agreement, and which cause harm to competitors in the
telecommunications industry, there shall be a fine of up to
R$50,000,000.00 (fifty million Brazilian reais);
III For any violation of contractual provisions which results in the
non-fulfillment of quality of service objectives or guidelines, there
shall be a fine of up to R$40,000,000.00 (forty million Brazilian
reais);
IV For any other act or omission not covered by the preceding
paragraphs, and which involves the violation of users' rights as set
forth in this Agreement, or which causes them harm, there shall be a
fine of up to R$30,000,000.00 (thirty million Brazilian reais);
V For any act or omission which violates the provisions of clause
15.8 of this Agreement, involving the hiring of services and the
acquisition of equipment and materials manufactured in Brazil, there
shall be a fine of up to R$30,000,000.00 (thirty million Brazilian
reais);
VI For any act or omission which obstructs or hinders the inspection
activities of ANATEL as provided for in this Agreement, there shall be
a fine of up to R$20,000,000.00 (twenty million Brazilian reais);
VII For any act, omission or negligence which threatens the security
of the facilities, there shall be a fine of up to R$15,000,000.00
(fifteen million Brazilian reais);
VIII For any act or omission which brings harm or poses a risk to
concession-related assets or equipment, there shall be a fine of up to
R$10,000,000.00 (ten million Brazilian reais); and
IX For failure to comply with any express requirement in this
Agreement, with the exception of the requirements stated in the
preceding paragraphs, for which penalties have already been
determined, there shall be a fine of up to R$10,000,000.00 (ten
million Brazilian reais).
(S) 1 The infraction specified in paragraph I of this clause shall be
characterized by the failure of the Concessionaire to fulfill its obligations,
within the timeframes set forth in this Agreement, with regard to the expansion
and increased availability of the service granted hereby by supplying public
telephones and assistance to localities, in keeping with the provisions of the
General Plan on Universal Service and of Annex 2 Universal Service Objectives,
included in this Agreement. When applying the penalty, the following factors
shall be taken into consideration, in addition to the general principles laid
forth in this Chapter:
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a) The difference between the objective defined in the Agreement and
its degree of implementation;
b) The possibility for the Concessionaire catch up on the
implementation schedule, at its own expense;
c) The harm done to the policy reflected in the General Plan on
Universal Service;
d) The harm done to the intended direct beneficiaries of the
unfulfilled objectives; and
e) Any attenuating circumstances of a technical or economic nature
which may lessen the responsibility of the Concessionaire,
although not exonerate it.
(S) 2 The seriousness of the infraction indicated in paragraph II of
this clause shall be defined solely on the basis of the general criteria
indicated in clause 25.2, and shall be characterized by conduct of the
Concessionaire which, directly or indirectly, could inflict harm upon its
competitors in the industry, particularly:
a) Obstructing or hindering the option to use another provider of the
service or domestic and international long distance service.
b) Refusing to provide interconnection to a provider of
telecommunications services;
c) Obstructing or hindering the activity of providers of premium
services;
d) Placing conditions upon the availability of the conceded service,
or offering advantages to users in exchange for their acquiring
services other than the service which is the subject matter of
this Agreement;
e) Supplying any telecommunications service that is not a purpose of
the concession or authorized by ANATEL;
f) Failing to uphold quality standards regarding interconnection; and
g) Delaying the supply of information vital to the activities of
other service providers, especially involving user-related
information.
(S) 3 - The infraction specified in paragraph III of this clause shall
either be characterized by repeatedly providing service which is below the
quality parameters defined in the General Plan on Quality, or by demonstrably
contravening the quality indicators listed in Chapter VI. In the first case,
the following are considered particularly serious infractions:
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a) Failure to allocate the human and material resources required to
maintain minimum quality standards in the operation and
maintenance of the service granted hereby; and
b) Negligence in modernizing the network which impacts the quality of
service.
(S) 4 The seriousness of the infraction indicated in paragraph IV of
this clause shall be defined on the basis of the number of users affected and on
the damage caused. It shall be characterized by the violation, whether directly
or indirectly, through commission or omission, of an obligation stipulated in
this Agreement, and which does not involve a violation of duties pertaining to
universal service and quality, but rather a violation of the rights of users,
particularly:
a) Interruption of service for periods longer than allowed by the
General Plan on Quality, except under the circumstances indicated
in the sole paragraph of clause 6.3;
b) Refusal to provide the conceded service to any interested party;
c) Failure to fulfill the duty of providing information to users;
d) Breach of the secrecy of telecommunications, outside of legally-
mandated circumstances, even in the case of breaches committed by
third parties using facilities over which the Concessionaire has
responsibility;
e) Failure to fulfill the duty of supplying telephone directories
without charge;
f) Failure to maintain a user information and service center as
stipulated in this Agreement;
g) Charging rates or prices which are against the rules stipulated in
this Agreement and as provided by regulation; and
h) Restricting the right to freely choose among service plans.
(S) 5 The penalty provided for by paragraph V of this clause shall be
characterized by a verifiable violation of the obligation indicated in clause
15.8, and its seriousness shall be determined in accordance with regulatory
provisions.
(S) 6 The seriousness of the infraction indicated in paragraph VI of
this clause shall be defined on the basis of the significance of the inspection
activity obstructed, and shall be characterized by a violation committed by the
Concessionaire or its employees, whether directly or indirectly, through
commission or omission, which impedes or hinders the inspection activities
carried out by ANATEL, by its employees, or even by users, particularly:
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a) The refusal of the Concessionaire to comply with requests for
information made by ANATEL regarding the conceded service or the
assets allocated to it;
b) Hindering the actions of ANATEL's inspectors;
c) Failure to fulfill the publicity obligations provided for in this
Agreement, or as provided by the regulation; and
d) Failure to send, or to send in a timely manner, information, data,
reports or documents which, as determined by regulation or this
Agreement, should have been conveyed to ANATEL.
(S) 7 The seriousness of the infraction indicated in paragraph VII
of this clause shall be defined on the basis of the degree of risk posed, and
shall be characterized by conduct of the Concessionaire which runs counter to
the rules set forth in this Agreement and as provided by regulation, violates
norms and standards of technical safety, or which poses a risk to the facilities
allocated to the conceded service, particularly:
a) The use of equipment not certified by ANATEL to provide the
service, when such certification is required;
b) Failure to allocate the human and material resources required to
maintain minimum safety standards in the operation and maintenance
of the service; and
c) Failure to take the precautions recommended for the service
conceded herein.
(S) 8 The seriousness of the infraction indicated in paragraph VIII
of this clause shall be defined on the basis of the significance, the economic
importance and the indispensability of the assets involved, and shall be
characterized by conduct of the Concessionaire which runs counter to the
provisions of this Agreement or the regulations, and which could pose a risk to
assets or equipment associated with this concession, or make their reversion
difficult, particularly:
a) Failure to keep inventory and records of the assets referred to in
clause 21.1;
b) The direct use of the assets of third parties in providing the
service, without prior authorization from ANATEL, or without a
regulatory dispensation; and
c) Negligence in maintaining revertible assets, as provided by
regulation.
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(S) 9 The penalty provided for in paragraph IX of this clause shall
be called for in the case of a demonstrable violation of a contractual
obligation which is not included among the preceding paragraphs, particularly
the violation indicated in paragraph XXXI of clause 15.1.
(S) 10 The penalty provided for in paragraph II above is of a
contractual nature and shall be applied by ANATEL regardless of any measures
taken by the Administrative Council of Economic Defense - CADE.
(S) 11 Failure to pay any fine which has been determined under the
provisions in this clause, and within the timeframe determined by ANATEL, shall
constitute a serious violation, and shall occasion intervention in the affairs
of the Concessionaire, under the terms set forth in Chapter XXVIII. It shall
also entail payment of a late fee of 0.33% (zero point thirty-three percent) per
day, up to a maximum of 10% (ten percent), plus the SELIC reference rate for
federal securities, to be levied upon the amount owed on the basis of the number
of days it is past due.
CLAUSE 25.2. When applying the contractual fines provided for in this
Chapter, the rules stated in Title VI, Book III of Law No. 9,472 of 1997, and
those provided by regulation, shall be observed.
(S) 1 When defining the seriousness of penalties and determining
fines, ANATEL shall take the following factors into account:
I Whether the severity of the punishment is in proportion to the
seriousness of the violation, while also taking into account the
number of users affected;
II The damage inflicted upon the service and users as a result of the
infraction;
III Any advantage which the Concessionaire has reaped as a result of
the infraction;
IV The market share of the Concessionaire in its geographical service
area;
V The economic and financial situation of the Concessionaire,
especially its potential to generate revenue, and its assets;
VI The Concessionaire's past record;
VII Whether the violation is a repeat offense, that being a repeat of
a violation of the same nature after having received notification
previously; and
VIII Whether the infraction involved aggravating or attenuating
circumstances.
(S) 2 Regardless of the specific ranking criteria provided for in
each paragraph of the preceding clause, and others provided for by regulation,
penalties shall be ranked using the following scale:
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I The infraction shall be considered minor if it results from
unintentional or excusable conduct of the Concessionaire, and from
which it does not benefit;
II The infraction shall be considered moderately serious if it
results from inexcusable conduct, but which does not provide the
Concessionaire with any benefit or gain, or affect a significant
number of users; and
III The infractions shall be considered serious if ANATEL finds
evidence that:
a) The Concessionaire has acted in bad faith;
b) The infraction has resulted in a direct or indirect benefit for
the Concessionaire;
c) The Concessionaire's infraction is a repeat offense;
d) A significant number of users were affected; and
e) There were circumstances of the kind anticipated in (S) 10 of the
preceding clause.
(S) 3 At ANATEL's discretion, in the case of first-time occurrences
of infractions classified as minor, it may apply the disciplinary measure of
issuing a warning to the Concessionaire, which shall be formally notified of the
sanction, regardless of the publication of the ruling in the Official Journal.
(S) 4 When applying the disciplinary measures provided for in this
Chapter, the Disciplinary Proceedings provided for in the Internal Regulations
of ANATEL shall be observed.
(S) 5 In the case of the infractions provided for in paragraph IV of
clause 25.1, ANATEL may reduce the amount the Concessionaire would pay in fines
from the amount to be paid as compensation to the affected users, and the
compensation criteria, the payment schedule and the maximum amount of the
abatement shall be stated within the sentencing document.
(S) 6 The measure provided for in the preceding paragraph may only be
adopted if it can be proved that respecting the rights or demands of users shall
not exonerate the Concessionaire from its liability for other civil damages
owed.
CLAUSE 25.3. The fines provided for in this clause shall be applied
notwithstanding scenarios involving intervention or declaration of forfeiture,
as provided for in this Agreement.
SOLE PARAGRAPH In the event of complete or partial failure to carry
out an adjustment, or unjustified delays of over 120 (one hundred twenty) days
in complying with the objectives set forth in this Agreement, the Concessionaire
shall be subject to a declaration of forfeiture of the Concession, under the
terms set forth in clause 26.4.
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CLAUSE 25.4. The amounts of the fines provided for in this Chapter
shall be adjusted annually by applying the GPI-DA, and the first adjustment
shall take place one year after the signing of this Agreement.
CHAPTER XXVI TERMINATION OF THE CONCESSION
CLAUSE 26.1. The Concession Agreement shall be considered terminated
in the event of the following:
I Expiration of the concession period for the service granted hereby,
in the event it has not been extended under the terms of this
Agreement;
II Expropriation, in accordance with Art. 113 of Law No. 9,472 of
1997;
III Forfeiture, under the terms set forth in Article 114 of Law No.
9,472 of 1997 and in this Agreement;
IV Amicable or judicial rescission, under the terms of Art. 115 of
Law No. 9,472 of 1997; and
V Annulment.
(S) 1 Upon termination of the concession, the rights and duties
pertaining to the provision of the conceded service shall revert to ANATEL,
along with the assets referred to in clause 22.1, and the Concessionaire shall
retain the right to the compensation provided for by law and within this
Agreement.
(S) 2 Following the termination of the concession, ANATEL shall
undertake all necessary inventories, assessments and settlements within 180 (one
hundred eighty) days of taking over the service granted hereby, except in the
case of expiration of the agreement, in which case these steps are to be taken
in advance by ANATEL.
(S) 3 If the concession is terminated prior to its contractual
expiration date, ANATEL may do the following, notwithstanding other suitable
measures:
I Make temporary use of fixed and intangible assets, and avail itself
of the personnel required to continue providing the service granted
hereby; and
II Maintain the Contracts signed between the Concessionaire and third
parties for the duration and under the terms initially agreed upon.
CLAUSE 26.2. Reversion upon the expiration of the Agreement shall be
carried out without compensation, except under the circumstances provided for in
clause 22.3.
CLAUSE 26.3. Under the terms of Art. 113 of Law No. 9,472 of 1997,
expropriation is understood to be the repossession of the service by ANATEL
during the
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concession period, due to extraordinary motives of public interest, by way of a
specific authorizing law and subsequent to the payment of compensation.
CLAUSE 26.4. In the circumstances listed below, the forfeiture of
this Agreement may be declared by an act of the Board of Directors of ANATEL,
preceded by administrative proceedings which guarantee the Concessionaire an
ample defense:
I Transfer of corporate control, spin-offs, mergers or transformation
of the Concessionaire, as well as raising or lowering its capital
stock without the prior approval of ANATEL;
II Improper assignment of the Agreement;
III Failure to fulfill a commitment to an assignment, as referred to
in clause 18.1 of this Agreement and Art. 87 of Law No. 9,472 of 1997;
IV Bankruptcy or dissolution of the Concessionaire;
V Noncompliance with insurance coverage requirements, in violation of
the obligations provided for in clause 23.1, which, in the judgment of
ANATEL, cannot be dealt with through intervention; and
VI The occurrence, under the terms of Art. 114, paragraph IV of Law
No. 9,472 of 1997, of any of the situations stipulated by clause 28.1,
and in which intervention, in the judgment of ANATEL would be
inappropriate, ineffective or even unjustly favorable to the
Concessionaire.
(S) 1 Intervention shall be judged unnecessary in the event the
demand for the service which is the subject matter of the concession may be met,
through authorization, by other providers in a regular and immediate fashion.
(S) 2 Declaring forfeiture shall not preclude the application of
appropriate penalties, under the terms of this Agreement, for infractions
committed by the Concessionaire, nor shall it prejudice the right to
compensation defined under the terms of the following Chapter.
CLAUSE 26.5. The Concessionaire shall be entitled to contractual,
judicial or amicable rescission in the event that, due to acts or omissions of
government authorities, the execution of the Agreement becomes excessively
onerous, under the terms of Art. 115 of Law No. 9,472 of 1997.
SOLE PARAGRAPH The introduction or increase of competition among the
various providers of the service which is the subject matter of the concession
does not constitute a motive for the rescission of the Agreement, since the
Concessionaire clearly takes this concession with the knowledge that it will be
carrying out its activities without any kind of reserved or exclusive market.
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CLAUSE 26.6. Annulment shall be decreed by ANATEL in the event that
irremediable and serious irregularities are discovered in this Agreement.
CHAPTER XXVII - COMPENSATION
CLAUSE 27.1. For the purposes of calculating compensation owed by
ANATEL to the Concessionaire, in the cases expressly provided for in this
Agreement, the following shall be observed:
I Expiration of the contract term: No compensation shall be due,
unless it is proved that the absence of payment results in the
unjustified enrichment of the government through the reversion of
assets which have not been completely amortized, in accordance with
the provisions of clause 22.3;
II Expropriation: In keeping with the provisions of Art. 113 of Law
No. 9,472 of 1997, compensation, which shall be paid prior to
expropriation, must correspond to the value of the assets which are
reverting to the granting authority, minus depreciation;
III Forfeiture: Independently of the application of penalties and the
indemnification of damage resulting from breach of contract, under the
terms of the Agreement, the Concessionaire may only claim compensation
if it is proved that the government will be unjustly enriched through
the reversion of assets that have not been completely amortized or
depreciated, after deducting the value of the damage incurred and of
imposed fines, in addition to any unmet financial obligations;
IV Amicable or judicial rescission: No compensation shall be due,
unless otherwise determined by a court ruling; and
V Annulment: Compensation shall only be due if it is proved that the
Concessionaire did not act illegally, and such compensation shall
correspond solely to the actual value of the assets which revert to
the government, calculated on the date the annulment is decreed, on
the condition that said assets have not yet been fully amortized.
(S) 1 The temporary amount to be advanced by ANATEL in cases of
expropriation shall be calculated in the manner prescribed by the specific
authorizing legislation.
(S) 2 In the event that forfeiture is brought about through the
demonstrated fault of the Concessionaire, it shall also occasion:
a) retention of the credits stemming from the Agreement, including
the appropriation of revenue from the payments made by users of
the service;
b) liability for prejudice caused to the government and to the users;
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c) the levying of fines under the terms provided for in this
Agreement and current legislation; and
d) loss of the insurance guarantee provided for in clause 23.1.
(S) 3 Except in cases of expropriation, the appropriate compensation
for other instances of termination of the Agreement shall be calculated under
the terms of this chapter and divided into installments equal to the number of
months the concession would have been in effect. The first installment shall be
paid one year after the termination of the Agreement.
(S) 4 The responsibility for paying the various types of compensation
may be transferred by ANATEL to the provider that takes over the operation of
the service granted hereby from the Concessionaire. However, ANATEL shall
reassume the payment obligation in the event the new provider is more than 90
(ninety) days behind in its payments.
CHAPTER XXVIII INTERVENTION
CLAUSE 28.1. In the event the continuity and security of the service
granted hereby is jeopardized through the fault of the Concessionaire,
especially in the situations indicated below, then ANATEL, at its discretion and
in the public interest, may decree its intervention in the affairs of the
Concessionaire by way of a specific and justified act of its Board of Directors.
I Unjustified paralysis of the service granted hereby, that being the
interruption of service under circumstances not anticipated by this
Agreement, and which are not attributed to causes which ANATEL
considers justifiable;
II Inadequacy or repeated insufficiencies of the service provided,
characterized by noncompliance with the quality parameters provided
for in this Agreement and by regulation, even after warnings issued by
ANATEL to rectify the situation by a certain deadline;
III Poor administrative practices that jeopardize the continuity of
the service granted hereby;
IV Recurrence of violations defined as serious under the terms of
clause 25.1 above;
V Non-fulfillment of universal service objectives, that being the
unjustified failure to comply with the timetable for implementing the
universal service requirements of this Agreement;
VI Unjustified withholding of interconnection, understood as
refusing, delaying or postponing the negotiation or implementation of
a connection to its network, at the request of another service
provider, and in compliance with the terms of interconnection
determined by ANATEL;
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VII Violation of economic order, characterized by unfair trade
practices; and
VIII Failure to provide reports to ANATEL, or obstruction of
inspection activities, which may presuppose the occurrence of any of
the events anticipated in the previous paragraphs.
CLAUSE 28.2. The intervention decree must state the timeframe,
motives, goals and scope, in addition to designating the intervening party.
SOLE PARAGRAPH The duration and scope of the intervention must be
compatible with and in proportion to the cause for the intervention.
CLAUSE 28.3. The intervention shall be preceded by administrative
proceedings initiated by ANATEL, during which the full rights of defense of the
Concessionaire shall be guaranteed.
SOLE PARAGRAPH If immediate intervention is indispensable, it may be
decreed as a precaution by ANATEL, without a prior declaration by the
Concessionaire, in which case the proceedings must be initiated immediately as
of the date of the decree, and concluded within one hundred eighty days, during
which time the Concessionaire may exercise its full rights of defense.
CLAUSE 28.4. The intervention decree shall neither affect the regular
course of business of the Concessionaire, nor its normal functioning. It shall,
however, occasion the immediate dismissal of its management.
CLAUSE 28.5. The function of temporary administrator may fall to an
executive of ANATEL, a specifically appointed person, collegial body or a
company, and the Concessionaire shall assume the cost of remuneration.
(S) 1 ANATEL may have recourse the intervening party to act on its
behalf.
(S) 2 The temporary administrator shall issue reports and be
responsible for its acts.
(S) 3 For acts of alienation and disposal of the assets of the
Concessionaire, the temporary administrator requires the prior authorization of
ANATEL.
CLAUSE 28.6. Intervention shall not be decreed if ANATEL deems it
unnecessary.
SOLE PARAGRAPH Intervention shall be deemed unnecessary under the
circumstances set forth in (S) 1 of clause 26.4 above, as well as under those
provided for in Art. 114, paragraph IV of Law No. 9,472 of 1997.
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CHAPTER XXIX ADMINISTRATIVE EXPROPRIATIONS AND IMPOSITIONS
CLAUSE 29.1. In the event public easements or expropriations need to
be carried out in order to implement, provide or update the service granted
hereby, such tasks shall be handled entirely by the Concessionaire, and ANATEL
must submit proposals to the President of the Republic requesting the issuance
of declarations of public interest.
CHAPTER XXX ARBITRATION
CLAUSE 30.1. Any disputes that may arise over the application and
interpretation of the terms of the concession shall be resolved by ANATEL
through the exercise of its function as a regulatory body, in accordance with
the provisions of Articles 8 and 19 of Law No. 9,472 of 1997. The Concessionaire
may only evoke the arbitration proceeding provided for in this Chapter if it
disagrees with a ruling by ANATEL on the following topics:
I Infringement of the right of the Concessionaire to protect its
economic situation, as set forth in Chapter XII;
II Rate revision, as provided for in Chapter XII; and
III Compensation owed upon the termination of this Agreement,
including reverted assets.
SOLE PARAGRAPH The submission of any issue to arbitration does not
exempt ANATEL and the Concessionaire from the obligation to comply fully with
this Agreement, nor does it permit the interruption of the activities associated
with the concession.
CLAUSE 30.2. Arbitration proceedings shall be initiated when one
party sends notice to the other, requesting the establishment of the Arbitration
Tribunal provided for in this Chapter, and detailing the issue which is the
topic of controversy.
SOLE PARAGRAPH ANATEL may reject the establishment of the Arbitration
Tribunal if it can justifiably demonstrate that the dispute is not included in
the list of topics provided for in clause 30.1.
CLAUSE 30.3 The Arbitration Tribunal shall be composed of 5 (five)
members, appointed as follows:
I 2 (two) members, and their respective alternates, chosen by the
Board of Directors of ANATEL from among specialists in the areas
pertaining to the disputed matter, and who are not ANATEL employees.
At least one of them, who shall preside over the proceedings, shall
have specific knowledge of the legal regulation of telecommunications;
II 2 (two) members, and their respective alternates, chosen by the
Concessionaire, from among specialists in the areas pertaining to the
disputed
44
<PAGE>
matter, and who are not ANATEL employees. At least one of them shall
have specific knowledge of the legal regulation of telecommunications;
and
III 1 (one) member, and his or her respective alternate, chosen by
the members referred to in the preceding paragraphs.
(S) 1 The Arbitration Tribunal may be assisted by whatever technical
experts it finds suitable to appoint.
(S) 2 The Tribunal shall be considered constituted on the date when
all arbitrators accept their appointments and notify both parties of their
acceptance.
(S) 3 The Tribunal shall adjudicate on the basis of established law,
and its rulings shall have cogent force, independent of judicial homologation.
CLAUSE 30.4 If it has not been rejected by ANATEL, or if such
arguments have been overcome, the Proceedings dealt with in this Chapter shall
be initiated, and the following procedures shall be observed:
I The parties shall have 10 (ten) days as of receiving the notice
discussed at the beginning of the preceding clause in which to choose
the members of the Arbitration Tribunal, which shall be established as
soon as all of its members demonstrated their accepted;
II In the event one of the parties fails to act, or offers resistance
to the establishment of the Arbitration Tribunal, the other party may
avail itself of the right provided for in Art. 7 of Law No. 9,307 of
September 23, 1996;
III Once the Arbitration Tribunal has been established, the parties
shall each have 25 (twenty-five) days to present their arguments
concerning the disputed matter and may use this opportunity to present
reports, surveys, and opinions, as well as any other documents or
information which they feel are relevant in supporting their position;
IV Once the briefs have been presented, the Tribunal shall analyze
the arguments and may, at the request of one of its members, order the
elaboration of reports, surveys or opinions, and request information
or documents from the parties. In addition, the Tribunal may make any
other investigation or take any other measures it deems necessary to
obtain optimal information about the disputed matter;
V During the gathering of the items referred to in the preceding
paragraph, the parties shall always be permitted to make and refute
arguments in keeping with the principles of informality, consensus and
celerity which shall govern the proceeding;
45
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VI Once the preliminary fact-finding period has been declared closed,
the parties shall be granted a common 15 (fifteen) day period in which
to present their closing arguments;
VII Once the period mentioned above has elapsed, regardless of the
presentation of the final arguments, the Tribunal shall issue its
ruling within 30 (thirty) days;
VIII The ruling of the Arbitration Tribunal may not be appealed,
except for petitions for reconsideration, which are only suitable in
cases when a ruling is approved with a mere one-vote majority; and
IX Invalidation of arbitration proceedings shall only be allowed
under the circumstances provided for in Art. 32 of Law No. 9,307/96.
SOLE PARAGRAPH The expense of the arbitration process, including the
cost of reports, opinions and surveys, as well as the fees of the Tribunal
members, shall either be charged to the Concessionaire or to ANATEL, depending
upon the ruling of the Arbitration Tribunal.
CHAPTER XXXI APPLICABLE LEGAL SYSTEM
CLAUSE 31.1. Without prejudice to the norms inherent in the Brazilian
legal system, this concession is governed by Law No. 9,472 of July 16, 1997 and
by the regulations resulting therefrom, particularly those issued by Executive
Authority in accordance with the provisions of Art. 18 of the above-mentioned
Law, and they always take precedence over conflicting standards.
CLAUSE 31.2. When providing the service conceded herein, national
telecommunications policy and the regulations of ANATEL must be observed and
considered an integral part of this Agreement, particularly the following
related documents:
I General Concession Plan;
II General Plan on Universal Service;
III General Plan on Quality;
IV General Regulations for Telecommunications Services;
V Regulations for Switched, Fixed-line Telephone Service;
VI General Regulations for Interconnection;
VII Numbering Regulations for Switched, Fixed-line Telephone Service;
VIII Numbering Administration Regulations; and
46
<PAGE>
IX Regulations for Compensation for Network Usage of Providers of
Switched, Fixed-line Telephone Service.
CLAUSE 31.3. When interpreting the standards and provisions contained
within this Agreement, general rules of interpretation and the standards and
principles of Law No. 9, 472 of 1997 must be taken into account, in addition to
the documents referred to in the preceding item.
CHAPTER XXXII - VENUE
CLAUSE 32.1. In order to resolve disputes stemming from this
Agreement which cannot be resolved through the dispute-resolution process in
Chapter XXX Arbitration, the Federal District Court of Brasilia (Foro da Secao
Judiciaria da Justica Federal de Brasilia, Distrito Federal) shall have
competent jurisdiction.
CHAPTER XXXIII FINAL AND GENERAL PROVISIONS
CLAUSE 33.1. The Agreement signed herewith shall enter into force as
soon as its abstract is published in the official government daily journal
(Diario Oficial da Uniao).
SOLE PARAGRAPH The Concessionaire shall have 6 (six) months as of the
publication of the regulations referred to in clause 31.2, which are expected to
have been completely published by December 31, 1998, before being required to
comply fully with the obligations set forth in this Agreement.
In order to signify their full acceptance of the provisions and terms
of this Agreement, the parties hereby execute it in triplicate, before witnesses
who also execute it, in order that this Agreement take legal and judicial
effect.
Brasilia, May 26, 1998.
ANATEL:
__________________________
__________________________
Concessionaire:
__________________________
__________________________
Witnesses:
__________________________
Name:
ID:
__________________________
47
<PAGE>
Name:
ID:
48
<PAGE>
ANNEX 1
CLASSIFICATION OF REVERTIBLE ASSETS USED TO PROVIDE
LOCAL, SWITCHED, FIXED-LINE TELEPHONE SERVICE
a) Infrastructure and equipment used for switching and transmission, including
public terminals;
b) Infrastructure and equipment used in the external network;
c) Infrastructure and equipment used for energy and air conditioning;
d) Infrastructure and equipment used by the Assistance and Service Centers;
e) Infrastructure and equipment used in operations support systems;
f) Other items required to provide the service.
49
<PAGE>
ANNEX 2
UNIVERSAL SERVICE OBJECTIVES
Universal service objectives are established by the General Plan on Universal
Service, and also include the following:
1. Full individual access lines installed in the sector provided for in clause
2.1 of this Agreement:
a) by 12/31/1999
b) by 12/31/2000
c) by 12/31/2001
2. Installing public telephones in the sector provided for in clause 2.1 of
this Agreement:
d) by 12/31/1999
e) by 12/31/2000
f) by 12/31/2001
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<PAGE>
ANNEX 3
BASIC LOCAL SERVICE PLAN
1 GENERAL
1.1 - The Basic Local Service Plan is governed by the administrative rulings
cited in this annex, by other regulations in effect and any succeeding
regulations.
1.2 - The rates presented are maximums, net of payroll and income taxes.
2 ACCESS TO SWITCHED, FIXED-LINE TELEPHONE SERVICE ("SFTS")
2.1 - For access to Switched, Fixed-line Telephone Service (SFTS), the service
provider may charge an Installation Fee of no more than R$80.00 (eighty
Brazilian reais), as established by Administrative Decree No. 508 of 10/16/97,
issued by the Ministry of Communications.
2.2 - In order to maintain access rights, service providers are authorized to
collect subscription fees, using the table below, in accordance with
Administrative Decrees Nos. 217 and 226, both dated April 3, 1997 and issued by
the Ministry of Communications.
<TABLE>
<CAPTION>
<S> <C>
CLASS OF SUBSCRIBER PRICE (IN R$)
- ----------------------------------------------------------------
Residential 10.00 (ten reais)
- ----------------------------------------------------------------
Nonresidential 15.00 (fifteen reais)
- ----------------------------------------------------------------
CPCT Trunk 20.00 (twenty reais)
- ----------------------------------------------------------------
</TABLE>
2.2.1 - A Local SFTS subscription includes a 90-pulse base rate.
2.3 - Subscribers may be charged for changes of address, with a maximum charge
of R$62.40 (sixty-two reais and forty centavos).
3 - USE OF SFTS
3.1 - LOCAL SFTS
3.1.1 - Local SFTS is regulated by Administrative Decree No. 216 of 9/18/91,
issued by the National Secretary of Communications, subsequently updated by
Administrative Decree No. 218 of April 3, 1997, issued by the Ministry of
Communications, which stipulates the rate-setting procedures for local calls
using the Public Telephone Service.
3.1.2 - Rates for Local SFTS shall be calculated using:
a) The Karlsson Increment method or KA-240 (multiple measurement), whereby
billed amounts are calculated by applying a billing unit (a pulse) for each
successfully connected call, as well as
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<PAGE>
additional units every 240 seconds. The first billing charge occurs a random
amount of time after the initiation of the call.
b) The Simple Measurement Method, whereby billed amounts are calculated by
applying a billing unit (a pulse) for each successfully completed call,
regardless of call length.
<TABLE>
<CAPTION>
DAY MEASUREMENT SYSTEM
- -------------------------------------------------------------------------------------------------------
<S> <C>
Monday Friday, 6:00 a.m.-Midnight Multiple Measurement (KA 240)
- -------------------------------------------------------------------------------------------------------
Monday Friday, Midnight-6 a.m. Simple Measurement
- -------------------------------------------------------------------------------------------------------
Saturday, 6 a.m.-2 p.m. Multiple Measurement (KA 240)
- -------------------------------------------------------------------------------------------------------
Saturday, Midnight-6 a.m. and 2 p.m.-Midnight Simple Measurement
- -------------------------------------------------------------------------------------------------------
Sundays and Holidays: 24 hours Simple Measurement
- -------------------------------------------------------------------------------------------------------
</TABLE>
3.1.3 - The billing unit of Local SFTS is the Pulse, the mean value of which, as
determined by Administrative Decree No. 226 of April 3, 1997, issued by the
Ministry of Communications, is R$0.058.
3.1.4 - In the case of Local Collect Calls, the billing principles of Domestic
Long-Distance SFTS may be applied with regard to Degree 1 of the Billing Degree
Table used for Domestic Long-Distance SFTS, as stipulated by Administrative
Decree No. 218 of April 3, 1997, issued by the Ministry of Communications.
3.1.5 - In the case of local calls originating from public telephones, the time-
based measurement shall be adopted, in which case a synchronized billing unit is
involved. The first unit is counted upon completion of the call, in what is
called the Pure Karlsson method, as set forth in Administrative Decree No. 216
of 9/18/91, issued by the National Secretary of Communications, with an interval
of 120 seconds between each billing unit, as provided for by Administrative
Decree No. 218 of April 3, 1997, issued by the Ministry of Communications.
3.1.6 - The unitary value of the local phone token/phone card is R$0.043, as
determined by Administrative Decree No. 226, of April 3, 1997, issued by the
Ministry of Communications.
3.2 MOBILE CELLULAR SERVICE
3.2.1 - The billing criteria and procedures for calls using Mobile Cellular
Service are regulated by Standard No. 23/96, approved by Administrative Decree
No. 1536, of November 4, 1996, issued by the Ministry of Communications.
3.2.2 - The billing unit is one tenth of a minute (i.e., six seconds).
3.2.3 - The minimum billed increment is 30 (thirty) seconds.
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<PAGE>
3.2.4 - Administrative Decree No. 2503 of 12/20/96, issued by the Ministry of
Communications, established the maximum amounts of per-minute rates, as shown in
the table below:
<TABLE>
<CAPTION>
Mobile Cellular Service Areas Normal Rate Reduced Rate
- ---------------------------------------------------------------------------------
VC-1 VC-1
(R$) (R$)
- ---------------------------------------------------------------------------------
<S> <C> <C>
1 0.27000 0.18900
- ---------------------------------------------------------------------------------
2 0.27000 0.18900
- ---------------------------------------------------------------------------------
3 0.28000 0.19600
- ---------------------------------------------------------------------------------
4 0.28000 0.19600
- ---------------------------------------------------------------------------------
5 0.27000 0.18900
- ---------------------------------------------------------------------------------
6 0.27000 0.18900
- ---------------------------------------------------------------------------------
7 0.27000 0.18900
- ---------------------------------------------------------------------------------
8 0.27000 0.18900
- ---------------------------------------------------------------------------------
9 0.26000 0.18200
- ---------------------------------------------------------------------------------
10 0.26000 0.18200
- ---------------------------------------------------------------------------------
</TABLE>
3.2.5 - The reduced rate for Mobile Cellular Service-bound calls shall apply
Monday to Saturday from midnight to 7 a.m. and from 9 p.m. to midnight, and all
day long on Sundays and holidays, as provided for in Standard No. 23/96,
approved by Administrative Decree No. 1536 of November 4, 1996, issued by the
Ministry of Communications.
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<PAGE>
EXHIBIT 10.3
MODELO DE
CONTRATO DE CONCESSAO DO SERVICO TELEFONICO FIXO COMUTADO LONGA DISTANCIA
NACIONAL
(EMPRESAS DO STB, EXCETO EMBRATEL)
Pelo presente instrumento, de um lado a Agencia Nacional de
Telecomunicacoes, doravante denominada ANATEL, entidade integrante da UNIAO e
nos termos da Lei Federal n 9.472 de 16 de Julho de 1997, Lei Geral de
Telecomunicacoes - LGT, incumbida do exercicio do Poder Concedente, ora
representada pelo seu Presidente Renato Navarro Guerreiro, [qualificar]
conjuntamente com o Conselheiro **** [qualificar], conforme aprovacao do seu
Conselho Diretor constante da Resolucao n ****, e, de outro a [nome e
qualificacao da concessionaria], por seu representante legal, doravante
denominada CONCESSIONARIA, consoante o disposto no art. 207 da referida Lei
Geral de Telecomunicacoes, por este instrumento e na melhor forma de direito,
celebram o presente CONTRATO DE CONCESSAO, que sera regido pelas normas adiante
referidas e pelas seguintes clausulas:
CAPITULO I - DO OBJETO
CLAUSULA 1.1. - O objeto do presente Contrato e a concessao do Servico
Telefonico Fixo Comutado, destinado ao uso do publico em geral, prestado em
regime publico, na modalidade de servico de longa distancia nacional, para
chamadas originadas na area geografica definida na clausula 2.1, nos termos do
Plano Geral de Outorgas.
PARAGRAFO UNICO - Compreende-se no objeto da presente concessao o
Servico Telefonico Fixo Comutado, prestado em regime publico, em areas
limitrofes e fronteiricas, em conformidade com a regulamentacao editada pela
ANATEL, consoante disposicao contida no Plano Geral de Outorgas.
CLAUSULA 1.2. - Servico Telefonico Fixo Comutado e o servico de
telecomunicacoes que, por meio da transmissao de voz e de outros sinais,
destina-se a comunicacao entre pontos fixos determinados, utilizando processos
de telefonia.
CLAUSULA 1.3. - Mediante previa aprovacao por parte da ANATEL, a
Concessionaria podera implantar e explorar utilidades ou comodidades
relacionadas com a prestacao do servico objeto da presente concessao.
PARAGRAFO UNICO - Serao consideradas relacionadas com o objeto da
presente Concessao aquelas prestacoes, utilidades ou comodidades que, a juizo da
ANATEL, sejam consideradas inerentes a plataforma do servico ora concedido, sem
caracterizar nova modalidade de servico, observadas as disposicoes da
regulamentacao.
CLAUSULA 1.4. - A Concessionaria tem direito a implantacao,
<PAGE>
2
expansao e operacao dos troncos, redes e centrais de comutacao necessarios a sua
execucao, bem assim sua exploracao industrial, nos termos da regulamentacao.
CLAUSULA 1.5. - E indissociavel da prestacao do servico concedido, a
obrigacao de atendimento as metas de universalizacao e qualidade previstas neste
Contrato.
CLAUSULA 1.6. - A Concessionaria devera assegurar a todos os
solicitantes e usuarios do servico concedido a realizacao das instalacoes
necessarias a prestacao do servico, nos termos da regulamentacao.
CLAUSULA 1.7. - A Concessionaria devera manter acesso gratuito para
servicos de emergencia estabelecidos na regulamentacao.
CAPITULO II - DA AREA DE PRESTACAO DO SERVICO
CLAUSULA 2.1. - A area geografica de prestacao do servico objeto da
presente concessao e aquela abrangida pelo(s) territorio(s) contido(s) no(s)
Setor(es) de numero *** constante(s) do Anexo 3 do Plano Geral de Outorgas.
CAPITULO - III - DO PRAZO E DAS CONDICOES DE PRORROGACAO DO CONTRATO
Clausula 3.1. - O prazo da presente concessao, outorgada a titulo
gratuito, tera seu termo final em 31 de dezembro de 2005, assegurado o direito a
prorrogacao unica por vinte anos, de acordo com as clausulas 3.2, 3.3 e 3.4.
CLAUSULA 3.2. - A presente concessao sera prorrogada, a pedido da
Concessionaria, a titulo oneroso, uma unica vez por 20 (vinte) anos, desde que a
Concessionaria atenda as condicoes constantes deste Contrato, podendo o novo
Contrato incluir novos condicionamentos, estabelecer novas metas para
universalizacao e de qualidade, tendo em vista as condicoes vigentes a epoca da
prorrogacao, definindo, no caso de metas de universalizacao, recursos
complementares, nos termos do art. 81 da Lei n 9.472, de 1997.
(S) 1 - A ANATEL, 36 (trinta e seis) meses antes do termo final
previsto na clausula 3.1, fara publicar consulta publica com sua proposta de
novos condicionamentos e de novas metas para qualidade e universalizacao do
servico, submetidas estas ultimas a aprovacao, por meio de Decreto, do
Presidente da Republica, nos termos do art. 18, inciso III, da Lei n 9.472, de
1997.
(S) 2 - Para a prorrogacao prevista nesta clausula, a Concessionaria
devera manifestar seu expresso interesse com antecedencia
<PAGE>
3
minima de 30 (trinta) meses antes do termo final previsto na clausula 3.1.
CLAUSULA 3.3. - Para prorrogacao do prazo da presente concessao, nos
termos do previsto na clausula anterior, a Concessionaria devera pagar, a cada
bienio, durante o periodo de prorrogacao, onus correspondente a 2% (dois por
cento) da sua receita, do ano anterior ao do pagamento, do Servico Telefonico
Fixo Comutado, liquida de impostos e contribuicoes sociais incidentes.
(S) 1 - No calculo do valor referido no caput desta clausula sera
considerada a receita liquida decorrente da aplicacao dos planos de servico,
basico e alternativos, objeto da presente concessao.
(S) 2 - O calculo do percentual referido no caput desta clausula sera
feito sempre relativamente a receita liquida das deducoes de impostos e
contribuicoes incidentes, apurada entre janeiro e dezembro do ano anterior e
obtida das demonstracoes financeiras elaboradas conforme legislacao societaria e
principios fundamentais de contabilidade, aprovadas pela administracao da
Concessionaria e auditadas por auditores independentes, e o pagamento tera
vencimento em 30 de abril do ano subsequente ao da apuracao do onus.
(S) 3 - A primeira parcela do onus tera vencimento em 30 de abril de
2007, calculada considerando a receita liquida apurada de 1 de janeiro a 31 de
dezembro de 2006, e as parcelas subsequentes terao vencimento a cada 24 (vinte e
quatro) meses, tendo como base de calculo a receita do ano anterior.
(S) 4 - O atraso no pagamento do onus previsto nesta clausula
implicara a cobranca de multa moratoria de 0,33% (zero virgula trinta e tres por
cento) ao dia, ate o limite de 10% (dez por cento), acrescida da taxa
referencial SELIC para titulos federais, a ser aplicada sobre o valor da divida
considerando todos os dias de atraso de pagamento.
CLAUSULA 3.4. A prorrogacao do prazo do presente Contrato ensejara a
prorrogacao no direito de uso das radiofrequencias referidas na clausula 4.1 que
sejam necessarias a continuidade da prestacao do servico.
Paragrafo unico - O retorno a ANATEL de radiofrequencias que nao sejam
necessarias a continuidade da prestacao dos servicos nao implicara modificacao
do valor do onus da prorrogacao fixado na clausula 3.3.
CAPITULO IV - DO MODO, FORMA E CONDICOES DE PRESTACAO
Clausula 4.1. A utilizacao de radiofrequencias na prestacao do
servico objeto desta concessao sera autorizada pela ANATEL, a titulo oneroso e
sem exclusividade, salvo se existir disposicao em contrario na regulamentacao,
consoante o disposto nos artigos 83 e 163 da Lei n 9.472, de 1997.
<PAGE>
4
(S) 1 - A Concessionaria tera direito de utilizacao, sem
exclusividade, das radiofrequencias autorizadas anteriormente a data da
assinatura deste Contrato, independente do pagamento de qualquer onus, exceto as
taxas de fiscalizacao, observadas as condicoes estabelecidas nas respectivas
licencas de funcionamento das estacoes.
(S) 2 - O direito de utilizacao de radiofrequencias referido nesta
clausula nao elide a prerrogativa conferida a ANATEL pelo art.161 da Lei n
9.472, de 1997.
(S) 3 - As novas radiofrequencias que venham a ser requeridas pela
Concessionaria terao seu uso autorizado, a titulo oneroso, com observancia dos
procedimentos definidos pela ANATEL para autorizacoes similares.
(S) 4 - O prazo das autorizacoes de uso de radiofrequencias
requeridas nos termos do paragrafo anterior sera igual ao prazo da presente
Concessao, devendo sua prorrogacao ser feita a titulo oneroso, independente do
pagamento do onus referido na clausula 3.3. do presente.
CLAUSULA 4.2. - A Concessionaria se obriga a prestar o servico objeto
da concessao de forma a cumprir plenamente as obrigacoes de universalizacao e
continuidade inerentes ao regime publico, que lhe e inteiramente aplicavel,
observados os criterios, formulas e parametros definidos no presente Contrato.
PARAGRAFO UNICO - O descumprimento das obrigacoes relacionadas a
universalizacao e a continuidade ensejara a aplicacao das sancoes previstas no
presente Contrato, permitira a decretacao de intervencao pela ANATEL e, conforme
o caso e a gravidade ou quando a decretacao de intervencao for inconveniente,
inocua, injustamente benefica a Concessionaria ou desnecessaria, implicara a
caducidade da concessao, nos termos do disposto na clausula 26.4.
CLAUSULA 4.3. - A Concessionaria explorara o servico objeto da
concessao por sua conta e risco, dentro do regime de ampla e justa competicao
estabelecido na Lei n 9.472, de 1997, e no Plano Geral de Outorgas, sendo
remunerada pelas tarifas cobradas e por eventuais receitas complementares ou
acessorias que perceba nos termos do presente Contrato.
PARAGRAFO UNICO - A Concessionaria nao tera direito a qualquer especie
de exclusividade, nem podera reclamar direito quanto a admissao de novos
prestadores do mesmo servico, no regime publico ou privado.
CLAUSULA 4.4. - Ao longo de todo o prazo de vigencia da concessao, a
Concessionaria se obriga a manter os compromissos de qualidade, abrangencia e
oferta do servico constantes do presente Contrato,
<PAGE>
5
independentemente do ambiente de competicao existente na area geografica de
exploracao do servico.
CLAUSULA 4.5. - A Concessionaria se compromete a manter e conservar
todos os bens, equipamentos e instalacoes empregados no servico em perfeitas
condicoes de funcionamento, conservando e reparando suas unidades e promovendo,
nos momentos oportunos, as substituicoes demandadas em funcao do desgaste ou
superacao tecnologica, ou ainda promovendo os reparos ou modernizacoes
necessarias a boa execucao do servico e a preservacao do servico adequado,
conforme determinado no presente Contrato.
CAPITULO V - DAS REGRAS PARA IMPLANTACAO, EXPANSAO, ALTERACAO E MODERNIZACAO DO
SERVICO
CLAUSULA 5.1. - Constituem pressupostos basicos da presente concessao
a expansao e a modernizacao do servico concedido, observadas as metas e os
criterios constantes do presente Contrato.
PARAGRAFO UNICO - A ANATEL podera determinar a alteracao de metas de
implantacao, expansao e modernizacao do servico, respeitado o direito da
Concessionaria de nao ser obrigada a suportar custos adicionais nao recuperaveis
com a receita decorrente do atendimento dessas metas por meio da exploracao
eficiente do servico.
CLAUSULA 5.2. - A alteracao nas condicoes de prestacao do servico
somente podera ocorrer por determinacao da ANATEL ou mediante sua previa e
expressa aprovacao.
CLAUSULA 5.3. - A modernizacao do servico sera buscada atraves da
constante introducao de equipamentos, processos e meios aptos a prestar ao
usuario um servico compativel com a atualidade em face das tecnologias
disponiveis no mercado.
CAPITULO VI - DOS CRITERIOS E INDICADORES DE QUALIDADE E CONTINUIDADE DO
SERVICO.
CLAUSULA 6.1. - Constitui pressuposto da presente Concessao a adequada
qualidade do servico prestado pela Concessionaria, considerando-se como tal o
servico que satisfizer as condicoes de regularidade, eficiencia, seguranca,
atualidade, generalidade, cortesia e modicidade das tarifas.
(S) 1 - A regularidade sera caracterizada pela prestacao continuada
do servico com estrita observancia do disposto nas normas baixadas pela ANATEL.
<PAGE>
6
(S) 2 - A eficiencia sera caracterizada pela consecucao e preservacao
dos parametros constantes do presente Contrato e pelo atendimento do usuario do
servico nos prazos previstos neste Contrato.
(S) 3 - A seguranca na prestacao do servico sera caracterizada pela
confidencialidade dos dados referentes a utilizacao do servico pelos usuarios,
bem como pela plena preservacao do sigilo das informacoes transmitidas no ambito
de sua prestacao, observado o disposto no Capitulo XIV.
(S) 4 - A atualidade sera caracterizada pela modernidade dos
equipamentos, das instalacoes e das tecnicas de prestacao do servico, com a
absorcao dos avancos tecnologicos advindos ao longo do prazo da concessao que,
definitivamente, tragam beneficios para os usuarios, respeitadas as disposicoes
do presente Contrato.
(S) 5 - A generalidade sera caracterizada com a prestacao nao
discriminatoria do servico a todo e qualquer usuario, obrigando-se a
Concessionaria a prestar o servico a quem o solicite, no local indicado pelo
solicitante, nos termos do presente Contrato e de acordo com a regulamentacao.
(S) 6 - A cortesia sera caracterizada pelo atendimento respeitoso e
imediato de todos os usuarios do servico concedido, bem como pela observancia
das obrigacoes de informar e atender pronta e polidamente todos que, usuarios ou
nao, solicitem da Concessionaria informacoes, providencias ou qualquer tipo de
postulacao nos termos do disposto no presente Contrato.
(S) 7 - O principio da modicidade das tarifas sera caracterizado pelo
esforco da Concessionaria em praticar tarifas inferiores as fixadas pela ANATEL
CLAUSULA 6.2. A Concessionaria devera observar os parametros e
indicadores do Plano Geral de Metas de Qualidade.
PARAGRAFO UNICO - A Concessionaria devera divulgar, anualmente, quadro
demonstrativo das metas e parametros estabelecidos e realizados do Plano Geral
de Metas de Qualidade e do Plano Geral de Metas de Universalizacao, sem prejuizo
do fornecimento destes dados, sempre que solicitados pela ANATEL.
CLAUSULA 6.3. - A continuidade do servico ora concedido, elemento
essencial ao regime de sua prestacao, sera caracterizada pela nao interrupcao do
servico, observada a suspensao por inadimplencia do usuario nos termos do
disposto na clausula 8.3. e no art. 3, inciso VII da Lei n 9.472, de 1997.
PARAGRAFO UNICO - Nao sera considerada violacao da continuidade a
interrupcao circunstancial do servico decorrente de situacao de
<PAGE>
7
emergencia, motivada por razoes de ordem tecnica ou de seguranca das
instalacoes, mediante comunicacao aos usuarios afetados e, nos casos relevantes,
tambem mediante aviso circunstanciado a ANATEL.
CLAUSULA 6.4. - A Concessionaria nao podera, em hipotese alguma,
interromper a prestacao do servico alegando o nao adimplemento de qualquer
obrigacao por parte da ANATEL ou da Uniao, nao sendo invocavel, pela
Concessionaria, a excecao por inadimplemento contratual.
CLAUSULA 6.5. - Alem da gerencia e auditoria dos indicadores de
qualidade, a ANATEL avaliara, periodicamente, o grau de satisfacao dos usuarios
com o servico ora concedido, podendo divulgar os resultados da Concessionaria,
abrangendo, pelo menos, os seguintes aspectos:
I - atendimento ao usuario, especialmente no que tange a facilidade
de acesso, presteza, cordialidade, rapidez e eficacia na resposta a
solicitacoes e reclamacoes;
II - tarifas cobradas e descontos oferecidos;
III - qualidade tecnica do servico prestado; e
IV - adequacao dos servicos oferecidos as necessidades dos usuarios.
CAPITULO VII - DAS METAS DE UNIVERSALIZACAO
CLAUSULA 7.1. - A universalizacao constitui traco essencial do regime
de prestacao do servico ora concedido e sera caracterizada pelo atendimento
uniforme e nao discriminatorio de todos os usuarios e pelo cumprimento das metas
constantes do Plano Geral de Metas de Universalizacao, aprovado pelo Poder
Executivo, nos termos dos artigos 18, inciso III, e 80 da Lei n 9.472, de 1997.
CLAUSULA 7.2. - A excecao do disposto na clausula 7.4. deste Contrato
e observado o Plano Geral de Metas de Universalizacao, aprovado pelo Poder
Executivo nos termos dos artigos 18, inciso III, e 80 da Lei n 9.472, de 1997,
a implementacao das metas de universalizacao previstas neste Contrato sera
financiada exclusivamente pela Concessionaria, atraves da exploracao do servico,
nao lhe assistindo direito a ressarcimento ou subsidio.
CLAUSULA 7.3. - A Concessionaria assume a obrigacao de implementar
metas de universalizacao nao previstas no presente Contrato e que venham a ser
requeridas pela ANATEL, em observancia ao disposto no (S) 2 do art. 2 do Plano
Geral de Metas de Universalizacao, aprovado pelo Decreto n 2.592, de 1998,
respeitado o seguinte procedimento para definicao do montante e criterio de
ressarcimento:
<PAGE>
8
I - a ANATEL consultara a Concessionaria sobre os custos totais da
implantacao das metas adicionais pretendidas e sobre a parcela
destes que nao podera ser amortizada pela receita de exploracao,
sendo coberta por pagamento especifico, indicando especificamente os
objetivos a serem atingidos, as tecnologias selecionadas, bem como o
local e prazo de implementacao;
II - se decorrido o prazo fixado na consulta, inexistir manifestacao
da Concessionaria, a ANATEL tomara as providencias necessarias para
determinar os onus e custos da implementacao destas metas bem como
para estimar a correspondente geracao de receita;
III - se respondida a Consulta pela Concessionaria, a ANATEL
avaliara se os custos e as estimativas de receitas apresentados sao
adequados e compativeis, levando em conta as tecnologias
disponiveis, o preco dos insumos e mao-de-obra, as caracteristicas
geograficas e socio-economicas da demanda a ser atendida, os precos
praticados no mercado alem de outras variaveis que considere
relevantes;
IV - nao considerando razoaveis os custos e/ou a estimativa de
receita propostos, a ANATEL podera, motivadamente, imputar a
implementacao das metas a Concessionaria, estabelecendo o valor do
ressarcimento, observado o disposto no Capitulo XXX; e
V - estando os valores de ressarcimento adequados e compativeis no
entendimento da ANATEL, esta confirmara a Concessionaria a imputacao
da implementacao destas metas especificas, nos termos da proposta de
ressarcimento encaminhada pela Concessionaria.
(S) 1 - Se, apos o procedimento previsto nesta clausula, a ANATEL
considerar inconveniente ou inviavel a implementacao da meta especifica de
universalizacao atraves da Concessionaria, contratara junto a outrem a
incumbencia, podendo faze-lo por meio de outorgas especificas e delimitadas do
servico, observados os parametros economicos obtidos no procedimento previsto
nesta clausula.
(S) 2 - A criterio da ANATEL, o procedimento previsto nesta clausula
tambem podera ser utilizado para fins de fixacao dos valores a serem ressarcidos
com a utilizacao dos recursos do Fundo de Universalizacao dos Servicos de
Telecomunicacoes, quando da antecipacao das metas previstas no Plano Geral de
Metas de Universalizacao, aprovado pelo Poder Executivo, nos termos dos artigos
18, inciso III, e 80 da Lei n 9.472, de 1997.
(S) 3 - A utilizacao de recursos do Fundo de Universalizacao dos
Servicos de Telecomunicacoes, conforme paragrafo anterior, implica a
<PAGE>
9
exclusao do aproveitamento dos beneficios da antecipacao de metas previstos no
(S) 2 do artigo 10, do Plano Geral de Outorgas, exceto no caso de ressarcimento
a ANATEL pelos valores que tenha utilizado desse Fundo, acrescidos da
remuneracao devida.
CLAUSULA 7.4. - A adocao dos procedimentos previstos na clausula
anterior constitui faculdade da ANATEL, que podera adota-la a seu criterio e
consoante o melhor atendimento do interesse publico, nao assistindo a
Concessionaria direito de preferencia na implementacao destas metas.
CAPITULO VIII - DAS REGRAS SOBRE SUSPENSAO DO SERVICO POR INADIMPLENCIA E A
PEDIDO DO USUARIO
CLAUSULA 8.1. - O assinante do servico objeto da presente concessao
podera solicitar, a qualquer tempo, a suspensao do servico, devendo a
Concessionaria atender a solicitacao em prazo a ser estabelecido pela ANATEL, o
qual nao sera superior a 48 (quarenta e oito) horas, ressalvados os casos de
aprazamento por parte do assinante.
PARAGRAFO UNICO - A Concessionaria nao podera exigir pagamento pela
suspensao do servico a que se refere o caput desta clausula.
CLAUSULA 8.2. - O assinante que estiver adimplente com a
Concessionaria podera requerer a suspensao do servico, na forma da
regulamentacao.
CLAUSULA 8.3. - A Concessionaria somente podera proceder a suspensao
do servico cujo assinante nao honrar o pagamento de debito diretamente
decorrente da utilizacao do servico concedido, apos transcorridos 30 (trinta)
dias de inadimplencia, observando o procedimento estabelecido em regulamentacao
propria editada pela ANATEL, e devera ser assegurado prazo para o assinante
questionar os debitos contra ele lancados.
(S) 1. A Concessionaria devera informar o bloqueio de acesso ao
assinante com antecedencia minima de 15 (quinze) dias.
(S) 2. O inadimplemento de debitos nao relacionados diretamente com o
servico objeto desta concessao, conforme paragrafo unico da clausula 10.6, nao
ensejara a interrupcao de que trata a presente clausula.
CLAUSULA 8.4. A Concessionaria assegurara ainda ao assinante o direito
a ter bloqueado temporaria ou permanentemente o acesso a comodidades ou
utilidades oferecidas, bem como a servicos de valor adicionado, sempre que por
ele solicitado, nos termos da regulamentacao.
CLAUSULA 8.5. Caso a inadimplencia do assinante se referir
exclusivamente ao pagamento dos servicos prestados por prestador de Servico
Telefonico Fixo Comutado diverso do ora concedido que seja objeto de
<PAGE>
10
faturamento conjunto pela Concessionaria, o bloqueio devera obedecer ao
procedimento especifico objeto de regulamentacao pela ANATEL.
CAPITULO IX - DO PLANO DE NUMERACAO
CLAUSULA 9.1. - Observada a regulamentacao, a Concessionaria se obriga
a obedecer ao Regulamento de Numeracao para o Servico Telefonico Fixo Comutado
editado pela ANATEL, devendo assegurar ao assinante do servico a portabilidade
de codigos de acesso no prazo definido nesse Regulamento.
(S) 1 - A Concessionaria arcara com os custos necessarios a adaptar-
se ao Regulamento de Numeracao referido no caput desta Clausula.
(S) 2 - Os custos referentes aos investimentos necessarios para
permitir a portabilidade de codigos de acesso serao divididos entre a
Concessionaria e os demais prestadores de servico de telecomunicacao, em regime
publico ou privado.
(S) 3 - Os custos referentes a administracao do processo de
consignacao e ocupacao de codigos de acesso do Regulamento de Numeracao serao
imputados a Concessionaria, nos termos do Regulamento da Administracao da
Numeracao.
CAPITULO X - DO REGIME TARIFARIO E DA COBRANCA DOS USUARIOS
CLAUSULA 10.1. - A Concessionaria devera ofertar a todos os usuarios,
obrigatoriamente, o Plano Basico do Servico de Longa Distancia Nacional, Anexo
02, parte integrante deste Contrato.
PARAGRAFO UNICO - O Plano Basico do Servico de Longa Distancia
Nacional sera unico para toda a area referida na clausula 2.1. e devera conter,
nos termos do estabelecido pela ANATEL, valores maximos para cada item da
estrutura tarifaria definida para a prestacao do Servico Telefonico Fixo
Comutado, valores estes que serao revistos e reajustados, observadas as normas
aplicaveis.
CLAUSULA 10.2. - A Concessionaria podera ofertar aos seus assinantes
Planos Alternativos de Servico de Longa Distancia Nacional com criterios de
tarifacao diferentes daqueles constantes do Plano Basico do Servico de Longa
Distancia Nacional.
(S) 1 - Sera garantida ao assinante a transferencia entre os diversos
Planos de Servico de Longa Distancia Nacional ofertados pela Concessionaria, nos
termos da regulamentacao.
<PAGE>
11
(S) 2 - A estrutura de tarifas e valores dos Planos Alternativos de
Servico de Longa Distancia Nacional sao de livre proposicao da Concessionaria,
observado o disposto na clausula 10.1.
(S) 3 - A Concessionaria e obrigada a ofertar, de forma nao
discriminatoria, ao usuario seus Planos Alternativos de Servico de Longa
Distancia Nacional homologados pela ANATEL.
(S) 4 - Os Planos Alternativos de Servico de Longa Distancia Nacional
deverao ser homologados pela ANATEL antes de sua oferta ao publico em geral.
(S) 5 - A ANATEL devera se pronunciar sobre os Planos Alternativos de
Servico de Longa Distancia Nacional em ate 15 (quinze) dias apos seu
recebimento, considerando-se os mesmos homologados caso, ate este prazo, nao
haja pronunciamento da ANATEL.
CLAUSULA 10.3. - A Concessionaria podera praticar descontos nas
tarifas dos Planos de Servico de Longa Distancia Nacional desde que de forma
equanime e nao discriminatoria, vedada a reducao subjetiva de valores, e
observado o principio da justa competicao.
PARAGRAFO UNICO A Concessionaria se obriga a divulgar, com
antecedencia, aos seus usuarios os descontos tarifarios, dando-lhes ampla e
previa divulgacao, comunicando sua decisao a ANATEL, ate 7 (sete) dias apos o
inicio da vigencia da reducao das tarifas.
CLAUSULA 10.4. - A Concessionaria se obriga a dar ampla publicidade as
tarifas praticadas pelo servico objeto da presente concessao, na forma
regulamentada pela ANATEL.
CLAUSULA 10.5. - Quando da implantacao de novas prestacoes, utilidades
ou comodidades relacionadas ao servico objeto da concessao, a Concessionaria
submetera previamente a pretensao de cobranca para aprovacao da ANATEL, sem a
qual nao podera ser cobrada qualquer tarifa ou preco.
CLAUSULA 10.6. - Os documentos de cobranca emitidos pela
Concessionaria deverao ser apresentados de maneira detalhada, clara,
explicativa, indevassavel e deverao discriminar o tipo e a quantidade de cada
servico prestado ao usuario, na forma da regulamentacao.
PARAGRAFO UNICO - A Concessionaria podera lancar no documento de
cobranca, desde que de forma clara e explicita, os valores devidos pelo
assinante em funcao da prestacao de servicos de valor adicionado, bem como de
outras comodidades ou utilidades relacionadas com o servico concedido.
CLAUSULA 10.7. - A Concessionaria cobrara dos demais prestadores de
servicos de telecomunicacoes tarifas de uso de redes,
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12
observadas as normas editadas pela ANATEL.
CLAUSULA 10.8 A Concessionaria oferecera desconto ao assinante
afetado por eventuais descontinuidades na prestacao do servico concedido, desde
que nao sejam por ele motivadas, o qual sera proporcional ao periodo em que se
verificar a interrupcao, na forma da regulamentacao.
CAPITULO XI - DO REAJUSTAMENTO DAS TARIFAS
CLAUSULA 11.1. - A cada intervalo nao inferior a 12 (doze) meses, por
iniciativa da ANATEL ou da Concessionaria, observadas as regras da legislacao
economica vigente, as tarifas constantes do Plano Basico do Servico de Longa
Distancia Nacional Anexo 02, poderao ser reajustadas mediante a aplicacao da
seguinte formula:
5 24 5 24
(SIGMA SIGMA Tijt x Mij/to/ ) (1-k) Ft SIGMA SIGMATij/to/ x Mij/to/
i=1 j=1 MT i=1 j=1 MT
Sendo:
Tijt Tij/to/ x 1,05 x IGP-DIt
-------
IGP-DI/to/
Onde:
Tijt = tarifa proposta no Plano Basico do Servico de Longa Distancia Nacional
para o horario j no degrau tarifario de distancia i, liquida dos tributos
incidentes.
Tij/to/ = tarifa vigente no Plano Basico do Servico de Longa Distancia Nacional
para o horario j no degrau tarifario de distancia i, liquida dos tributos
incidentes.
Mij/to/ = minutos do servico de longa distancia nacional observados no Plano
Basico do Servico de Longa Distancia Nacional no horario j e no degrau da
distancia i desde o ultimo reajuste tarifario ou, no caso do primeiro reajuste,
desde 1 de abril de 1998.
MT = minutos totais do servico de longa distancia nacional, observados no Plano
Basico do Servico de Longa Distancia Nacional desde o ultimo reajuste tarifario
ou, no caso do primeiro reajuste, desde 1 de abril de 1998.
i = degrau tarifario de distancia do servico de longa distancia nacional
constante da Estrutura Tarifaria do Servico.
j = horario de tarifacao do servico de longa distancia nacional constante da
Estrutura Tarifaria do Servico.
<PAGE>
13
t = data do reajuste proposto.
to = data do ultimo reajuste ou, no caso do primeiro reajuste, 1 de abril de
1998; e
Ft = IGP-DIt
-------
IGP-DI /to/
Onde:
IGP-DI = Indice Geral de Precos, Disponibilidade Interna, divulgado pela
Fundacao Getulio Vargas, ou outro indice que venha a substitui-lo
k = fator de transferencia.
(S) 1. - O fator de transferencia sera aplicado ao longo da
concessao da seguinte forma:
I ate 31 de dezembro de 2000 sera igual a 0,02 (zero virgula zero
dois);
II de 1 de janeiro de 2001 a 31 de dezembro de 2003 sera igual a
0,04 (zero virgula zero quatro).
III de 1 de janeiro de 2004 a 31 de dezembro de 2005 sera igual a
0,05 (zero virgula zero cinco).
(S) 2 - Caso o periodo de reajuste envolva valores diferentes de
fator de transferencia, devera ser efetuada, para sua aplicacao, uma media
ponderada considerando os meses de incidencia de cada valor de fator de
transferencia.
(S) 3 - Caso o reajuste seja efetuado em periodos superiores a doze
meses, a formula em que consta o fator de transferencia devera ser aplicada de
forma progressiva, considerando periodos de doze meses e, finalmente, o residuo
de meses, se houver.
(S) 4- Apos 2005 novos valores dos fatores de transferencia poderao
ser estabelecidos pela ANATEL quando da prorrogacao do prazo deste Contrato,
considerando as condicoes vigentes na epoca.
CLAUSULA 11.2. As tarifas de uso de redes serao reajustadas mediante
a aplicacao das seguintes formulas:
5 24 5 24
( SIGMA SIGMA TU-RIUijt x Mij/to/) (1-k) Ft SIGMA SIGMA TU-RIUijto x Mij/to/
i=1 j=1 MT i=1 j=1 MT
Sendo:
TU-RIUijt TU-RIUijto x 1,05 x IGP-DIt
-------
<PAGE>
14
IGP-DI/to/
Onde:
TU-RIUij/t/ - tarifa de uso de rede interurbana proposta para o horario j no
degrau da distancia i, liquida dos tributos incidentes.
TU-RIUij/to/ tarifa de uso de rede interurbana vigente para o horario j no
degrau da distancia i, liquida dos tributos incidentes.
Mij/to/ minutos que usam a rede interurbana da Concessionaria no horario j e no
degrau de distancia i, observados desde o ultimo reajuste tarifario ou, no caso
do primeiro reajuste, desde 1 de abril de 1998.
MT minutos totais que usam a rede interurbana da Concessionaria observados
desde o ultimo reajuste tarifario ou, no caso do primeiro reajuste, desde 1 de
abril de 1998.
/t/ = data do reajuste proposto.
/to/ = data do ultimo reajuste ou, no caso do primeiro reajuste, 1 de abril de
1998, e
F/t/ = IGP-DI/t/
-------
. IGP-DI /to/
Onde:
IGP-DI = Indice Geral de Precos, Disponibilidade Interna, divulgado pela
Fundacao Getulio Vargas, ou outro indice que venha a substitui-lo
k = fator de transferencia.
(S) 1 - O fator de transferencia sera aplicado ao longo da
concessao da seguinte forma:
I ate 31 de dezembro de 2000 sera igual a 0,02 (zero virgula zero
dois);
II de 1 de janeiro de 2001 a 31 de dezembro de 2003 sera igual a
0,04 (zero virgula zero quatro);
III de 1 de janeiro de 2004 a 31 de dezembro de 2005 sera igual a
0,05 (zero virgula zero cinco).
(S) 2 - Caso o periodo de reajuste envolva valores diferentes de
fator de transferencia, devera ser efetuada, para sua aplicacao, uma media
ponderada considerando os meses de incidencia de cada valor de fator de
transferencia.
(S) 3 - Caso o reajuste seja efetuado em periodos superiores a doze
meses, a formula em que consta o fator de transferencia devera ser
<PAGE>
15
aplicada de forma progressiva, considerando periodos de doze meses e,
finalmente, o residuo de meses, se houver.
(S) 4- Apos 2005 novos valores dos fatores de transferencia poderao
ser estabelecidos pela ANATEL quando da prorrogacao do prazo deste Contrato,
considerando as condicoes vigentes na epoca.
CAPITULO XII - DA PROTECAO DA SITUACAO ECONOMICA DA CONCESSIONARIA E DA REVISAO
DAS TARIFAS
CLAUSULA 12.1. - Constitui pressuposto basico do presente Contrato a
preservacao, em regime de ampla competicao, da justa equivalencia entre a
prestacao e a remuneracao, vedado as partes o enriquecimento imotivado as custas
de outra parte ou dos usuarios do servico, nos termos do disposto neste
Capitulo.
(S) 1 - A Concessionaria nao sera obrigada a suportar prejuizos em
decorrencia do presente Contrato, salvo se estes decorrerem de algum dos
seguintes fatores:
I - da sua negligencia, inepcia ou omissao na exploracao do servico;
II - dos riscos normais a atividade empresarial;
III - da gestao ineficiente dos seus negocios, inclusive aquela
caracterizada pelo pagamento de custos operacionais e
administrativos incompativeis com os parametros verificados no
mercado; ou
IV - da sua incapacidade de aproveitar as oportunidades existentes
no mercado, inclusive no atinente a expansao, ampliacao e incremento
da prestacao do servico objeto da concessao.
(S) 2 - E tambem vedado o enriquecimento imotivado da Concessionaria
decorrente da apropriacao de ganhos economicos nao advindos diretamente da sua
eficiencia empresarial, em especial quando decorrentes da edicao de novas regras
sobre o servico.
(S) 3 - Fara jus a Concessionaria a recomposicao da sua situacao
inicial de encargos e retribuicoes quando circunstancias de forca maior ou
calamidades afetarem de forma significativa a exploracao do servico, observado
sempre, como parametro, o reflexo destas situacoes nos prestadores de servicos
no regime privado.
(S) 4 - Na avaliacao do cabimento da recomposicao de que trata o
paragrafo anterior sera considerada, entre outros fatores, a existencia de
<PAGE>
16
cobertura do evento motivador da alteracao da situacao economica inicial pelo
Plano de Seguros previsto na clausula 23.1.
CLAUSULA 12.2. - Cabera o restabelecimento da situacao economica do
Contrato quando ficar demonstrada a inocorrencia dos fatores indicados no (S) 1
da clausula anterior, o qual dar-se-a preferencialmente pela revisao de tarifas
ou por qualquer outro mecanismo que, a criterio da ANATEL, seja considerado apto
a neutralizar a situacao verificada.
(S) 1 - A revisao das tarifas afastara qualquer outro mecanismo de
neutralizacao do enriquecimento imotivado das partes, tornando superado o evento
ao qual ela se referia.
(S) 2 - A providencia adotada para neutralizar uma distorcao sera
unica, completa e final relativamente ao evento que lhe deu origem.
CLAUSULA 12.3.- Independentemente do disposto na clausula 12.1.,
cabera revisao das tarifas integrantes do Plano Basico do Servico de Longa
Distancia Nacional em favor da Concessionaria ou dos usuarios, nos termos do
art. 108 da Lei n 9.472, de 1997, quando verificada uma das seguintes situacoes
especificas:
I - modificacao unilateral deste Contrato imposta pela ANATEL, que
importe variacao expressiva de custos ou de receitas, para mais ou
para menos, de modo que a elevacao ou reducao de tarifas seja
imposta pela necessidade de evitar o enriquecimento imotivado de
qualquer das partes;
II - alteracao na ordem tributaria posterior a assinatura deste
Contrato que implique aumento ou reducao da lucratividade potencial
da concessionaria;
III - ocorrencias supervenientes, decorrentes de fato do principe ou
fato da Administracao que resultem, comprovadamente, em alteracao
dos custos da Concessionaria;
IV - alteracao legislativa de carater especifico, que tenha impacto
direto sobre as receitas da Concessionaria de modo a afetar a
continuidade ou a qualidade do servico prestado; ou
V - alteracao legislativa que acarrete beneficio a Concessionaria,
inclusive a que concede ou suprime isencao, reducao, desconto ou
qualquer outro privilegio tributario ou tarifario, consoante do
previsto no (S) 3 do art. 108 da Lei n 9.472, de 1997.
(S) 1 - Nao importara na revisao de tarifas o prejuizo ou a reducao
de ganhos da Concessionaria decorrente da livre exploracao do servico em
condicoes de competicao ou da gestao ineficiente dos seus negocios.
<PAGE>
17
(S) 2 - Nao sera aplicavel a hipotese de revisao prevista no inciso
II do caput desta clausula quando a alteracao na ordem tributaria implicar
criacao, supressao, elevacao ou reducao em impostos incidentes sobre a renda ou
o lucro da Concessionaria, como o Imposto sobre a Renda, que nao impliquem
oneracao administrativa ou operacional.
(S) 3 - Nao cabera revisao de tarifas nas hipoteses previstas nesta
clausula quando os eventos ensejadores da revisao ja estiverem cobertos pelo
plano de seguros previsto na clausula 23.1.
(S) 4 - As contribuicoes da Concessionaria ao Fundo de
Universalizacao dos Servicos de Telecomunicacoes e ao Fundo para o
Desenvolvimento Tecnologico das Telecomunicacoes nao ensejarao revisao das
tarifas.
CLAUSULA 12.4. - Nao sera aplicavel a revisao de tarifas quando ficar
caracterizado que os impactos motivadores do pedido por parte da Concessionaria
puderem ser neutralizados com a eficiente exploracao do servico, pela expansao
do mercado ou pela geracao de receitas alternativas ou complementares associadas
ao objeto do presente Contrato, observadas as condicoes competitivas verificadas
no momento.
PARAGRAFO UNICO - A diminuicao da receita decorrente de descontos ou
reducao de tarifas nao dara ensejo a revisao das mesmas.
CLAUSULA 12.5. - O procedimento de revisao de tarifas podera ser
iniciado por requerimento da Concessionaria ou por determinacao da ANATEL.
(S) 1 - Quando o procedimento de revisao das tarifas for iniciado
pela Concessionaria deverao ser obedecidos os seguintes requisitos:
I - ser acompanhado de relatorio tecnico ou laudo pericial que
demonstre cabalmente o impacto da ocorrencia na formacao das tarifas
ou na estimativa de receitas da Concessionaria;
II - ser acompanhada de todos os documentos necessarios a
demonstracao do cabimento do pleito;
III - a Concessionaria devera indicar a sua pretensao de revisao
tarifaria, informando os impactos e as eventuais alternativas de
balanceamento das tarifas; e
IV - todos os custos com diligencias e estudos necessarios a plena
instrucao do pedido correrao por conta da Concessionaria.
(S) 2 - O procedimento de revisao das tarifas iniciado pela ANATEL
devera ser objeto de comunicacao a Concessionaria consignando prazo para sua
manifestacao, acompanhada de copia dos laudos e estudos
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18
realizados para caracterizar a situacao ensejadora da revisao.
(S) 3 - O procedimento de revisao das tarifas sera concluido em prazo
nao superior a 120 (cento e vinte) dias, ressalvada a hipotese em que seja
necessaria a prorrogacao deste para complementacao da instrucao.
(S) 4 - O requerimento devera ser aprovado pela ANATEL, devendo a
Concessionaria providenciar a ampla divulgacao dos novos valores maximos das
tarifas revistas, nos termos do que reza o presente Contrato.
CAPITULO XIII - DAS RECEITAS ALTERNATIVAS, COMPLEMENTARES E ACESSORIAS
Clausula 13.1. - A Concessionaria podera obter outras fontes
alternativas de receitas, desde que isso nao implique o descumprimento das
normas constantes do Regulamento Geral dos Servicos de Telecomunicacoes e das
demais normas editadas pela ANATEL.
PARAGRAFO UNICO - A Concessionaria, suas coligadas, controladas ou
controladoras nao poderao condicionar a oferta do servico ora concedido ao
consumo casado de qualquer outro servico, nem oferecer vantagens ao usuario em
virtude da fruicao de servicos adicionais aquele objeto do presente Contrato,
ainda que prestados por terceiros.
CLAUSULA 13.2. - A ANATEL podera determinar que a Concessionaria
ofereca aos usuarios comodidades ou utilidades correlacionadas ao objeto da
concessao, devendo neste caso as partes ajustarem os precos unitarios destes
servicos, observados os parametros de mercado e o direito a justa remuneracao.
CAPITULO XIV - DOS DIREITOS E GARANTIAS DOS USUARIOS E DEMAIS PRESTADORES
Clausula 14.1. - Respeitadas as regras e parametros constantes deste
Contrato, constituem direitos dos usuarios do servico objeto da presente
concessao:
I - o acesso ao servico e a sua fruicao dentro dos padroes de
qualidade, regularidade e eficiencia previstos no presente Contrato,
em seus anexos e nas normas vigentes;
II - a possibilidade de solicitar a suspensao ou a interrupcao do
servico prestado pela Concessionaria;
III - o tratamento nao discriminatorio quanto as condicoes de acesso
e fruicao do servico;
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19
IV - a obtencao de informacoes adequadas quanto as condicoes de
prestacao do servico e as tarifas e aos precos praticados;
V - a inviolabilidade e o segredo de sua comunicacao, respeitadas as
hipoteses e condicoes constitucionais e legais de quebra de sigilo
de telecomunicacoes;
VI - obter, gratuitamente, mediante solicitacao encaminhada ao
servico de atendimento dos usuarios mantido pela Concessionaria, a
nao divulgacao do seu codigo de acesso;
VII - a nao suspensao do servico sem sua solicitacao, ressalvada a
hipotese de debito diretamente decorrente de sua utilizacao ou por
descumprimento dos deveres constantes do art. 4 da Lei n 9.472, de
1997;
VIII - o conhecimento previo de toda e qualquer alteracao nas
condicoes de prestacao do servico que lhe atinjam direta ou
indiretamente;
IX - a privacidade nos documentos de cobranca e na utilizacao de
seus dados pessoais pela Concessionaria;
X - a resposta eficiente e pronta as suas reclamacoes pela
Concessionaria, nos termos do previsto na clausula 15.7.;
XI - o encaminhamento de reclamacoes ou representacoes contra a
Concessionaria junto a ANATEL e aos organismos de defesa do
consumidor;
XII - a reparacao pelos danos causados pela violacao dos seus
direitos;
XIII - ver observados os termos do Contrato de Assinatura pelo qual
tiver sido contratado o servico;
XIV - escolher livremente o prestador dos servicos telefonicos de
longa distancia nacional e internacional;
XV - ter respeitado o seu direito de portabilidade de codigos de
acesso, observadas as disposicoes do Regulamento de Numeracao
editado pela ANATEL; e
XVI - nao ser obrigado a consumir servicos ou a adquirir bens ou
equipamentos que nao sejam de seu interesse, bem como a nao ser
compelido a se submeter a condicao para recebimento do servico
objeto da presente concessao, nos termos da regulamentacao.
(S) 1 - A Concessionaria observara o dever de zelar estritamente
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20
pelo sigilo inerente ao servico telefonico e pela confidencialidade quanto aos
dados e informacoes, empregando meios e tecnologias que assegurem este direito
dos usuarios.
(S) 2 - A Concessionaria tornara disponiveis os recursos tecnologicos
necessarios a suspensao de sigilo de telecomunicacoes determinada por autoridade
judiciaria, na forma da regulamentacao.
CLAUSULA 14.2. - Aos demais prestadores de servicos de
telecomunicacoes serao assegurados, alem dos direitos referidos na clausula
anterior, os seguintes direitos:
I - a interconexao a rede da Concessionaria em condicoes economicas
e operacionais nao discriminatorias, sob condicoes tecnicamente
adequadas e a precos isonomicos e justos que atendam estritamente ao
necessario a prestacao do servico, observada a regulamentacao
editada pela ANATEL;
II - a receber o servico solicitado junto a Concessionaria sem
qualquer tipo de discriminacao, pelos precos de mercado ou por
precos negociados pelas partes e com as reducoes que forem
aplicaveis em funcao dos custos evitados em virtude do consumo em
larga escala, respeitada a regulamentacao; e
III - a obter todas as informacoes que sejam necessarias para a
prestacao do servico por eles operados, inclusive aquelas relativas
ao faturamento, ressalvado o direito da Concessionaria a preservacao
dos seus dados recobertos pelo sigilo empresarial, bem como os
direitos de terceiros.
(S) 1 - Os conflitos entre Concessionaria e demais prestadores serao
resolvidos administrativamente pela ANATEL, nos termos da regulamentacao a ser
por ela editada.
(S) 2 - A ANATEL acompanhara permanentemente o relacionamento entre
os prestadores que se utilizem do servico ora concedido e a Concessionaria, de
modo a coibir condutas que possam implicar prejuizo injusto para qualquer das
partes ou que importem em violacao a ordem economica e a livre concorrencia,
comunicando, nestas hipoteses, tais condutas ao Conselho Administrativo de
Defesa Economica - CADE, apos o exercicio de sua competencia, na forma do
disposto no art. 19, inciso XIX, da Lei n 9.472, de 1997.
CLAUSULA 14.3. Observada a regulamentacao, sera assegurado o direito
de qualquer usuario a prestacao e fruicao de servicos de valor adicionado, que
devera se dar em condicoes tecnicamente adequadas e a precos isonomicos e
justos, sendo defeso a Concessionaria o estabelecimento de qualquer entrave ou
restricao a fruicao do servico ora concedido.
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21
PARAGRAFO UNICO - Entende-se por servico de valor adicionado toda a
atividade que acrescentar ao servico objeto desta concessao, sem com ele se
confundir, novas utilidades relacionadas ao acesso, armazenamento, apresentacao,
movimentacao ou recuperacao de informacoes.
CAPITULO XV - DOS DIREITOS, GARANTIAS E OBRIGACOES DA CONCESSIONARIA
CLAUSULA 15.1. - Alem das outras obrigacoes decorrentes deste Contrato
e inerentes a prestacao do servico, incumbira a Concessionaria:
I - prestar o servico com absoluta observancia do disposto no
presente Contrato, submetendo-se plenamente a regulamentacao editada
pela ANATEL;
II - implantar todos os equipamentos e instalacoes necessarios a
prestacao, continuidade, modernizacao, ampliacao e universalizacao
do servico objeto da concessao, dentro das especificacoes constantes
do presente Contrato;
III - manter em perfeitas condicoes de operacao e funcionamento a
rede de telecomunicacoes, em quantidade, extensao e localizacoes
pertinentes e suficientes a adequada prestacao do servico;
IV - prover recursos financeiros necessarios ao atendimento dos
parametros de universalizacao e continuidade constantes do presente
Contrato e a prestacao adequada do servico;
V - prestar a ANATEL, na forma e periodicidade previstas na
regulamentacao, contas e informacoes de natureza tecnica,
operacional, economica, financeira e contabil, bem como fornecer-lhe
todos os dados e elementos referentes ao servico que sejam
solicitados;
VI - manter os terminais de uso publico, permanentes ou temporarios,
na forma prevista neste Contrato;
VII - submeter-se a fiscalizacao da ANATEL, permitindo o acesso de
seus agentes as instalacoes integrantes do servico bem como a seus
registros contabeis;
VIII - manter registros contabeis separados por servico, bem como
ter em dia o inventario dos bens e dos componentes do ativo
imobilizado da empresa;
IX - manter sistema de informacao e atendimento do usuario, nos
termos da clausula 15.7.;
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22
X - zelar pela integridade dos bens vinculados a prestacao do
servico;
XI - submeter a aprovacao da ANATEL, previamente a sua utilizacao, a
minuta de Contrato-Padrao a ser celebrado com os assinantes, bem
como todas as alteracoes, aditamentos ou variantes a ele aplicaveis;
XII - submeter a aprovacao previa da ANATEL os acordos operacionais
ou contratos de prestacao de servicos, de associacao ou parceria,
que pretenda firmar com entidades estrangeiras;
XIII - encaminhar para publicacao na Biblioteca da ANATEL copia de
acordos e contratos relativos a prestacao do servico ora concedido
com prestadores nacionais e estrangeiros de servicos de
telecomunicacoes;
XIV - divulgar, diretamente ou atraves de terceiros, o codigo de
acesso dos seus assinantes e dos demais assinantes de prestadores de
Servico Telefonico Fixo Comutado, em regime publico e privado, na
area de concessao, com exclusao daqueles que requererem
expressamente a omissao dos seus dados pessoais;
XV - fornecer, em prazos e a precos razoaveis e de forma nao
discriminatoria, a relacao de seus assinantes a quem queira divulga-
la;
XVI - respeitar rigorosamente o dever de sigilo e confidencialidade
das telecomunicacoes, observadas as prescricoes legais e
contratuais;
XVII - respeitar a privacidade dos usuarios com relacao aos
documentos de cobranca e a todas as informacoes pessoais a eles
referentes;
XVIII - cumprir, as suas proprias expensas, observado o disposto na
clausula 7.2 deste Contrato, todas as metas de universalizacao
expressamente constantes deste Contrato;
XIX - implementar projetos de expansao e universalizacao do servico
que venham a ser determinados pela ANATEL, segundo patamares de
ressarcimento, prazos e condicoes de implementacao estabelecidos,
observado o disposto na clausula 7.3.;
XX - submeter previamente a ANATEL toda e qualquer alteracao que
pretenda fazer nos seus estatutos quanto a cisao, fusao,
transformacao, incorporacao, bem como a transferencia
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23
de controle ou alteracao no capital social;
XXI - assegurar a qualquer outro prestador de servico de
telecomunicacoes a interconexao com sua rede, observadas a
regulamentacao especifica e as normas do presente Contrato;
XXII - tornar disponivel aos demais prestadores do Servico
Telefonico Fixo Comutado os servicos de faturamento e arrecadacao,
cobrando por estes precos justos e compativeis nos termos do
presente Contrato e da regulamentacao;
XXIII - observar todos os direitos dos demais prestadores de
servicos de telecomunicacoes, omitindo-se de praticar qualquer
conduta discriminatoria ou voltada a obstar a atividade destes;
XXIV - utilizar, sempre que exigido pela regulamentacao,
equipamentos com certificacao expedida ou aceita pela ANATEL;
XXV - observar as normas e os padroes tecnicos vigentes no Brasil,
omitindo-se de qualquer pratica discriminatoria em relacao a bens e
equipamentos produzidos no pais;
XXVI - colocar a disposicao das autoridades e dos agentes da defesa
civil, nos casos de calamidade publica, todos os meios, sistemas e
disponibilidades que lhe forem solicitados com vistas a dar-lhes
suporte ou a amparar as populacoes atingidas;
XXVII - atender com prioridade o Presidente da Republica, seus
representantes protocolares, sua comitiva e pessoal de apoio, bem
como os Chefes de Estado estrangeiros, quando em visitas ou
deslocamentos oficiais pelo territorio brasileiro, tornando
disponiveis os meios necessarios para adequada comunicacao destas
autoridades, observada a regulamentacao editada pela ANATEL;
XXVIII - arcar com o onus fixado pela ANATEL no caso de prorrogacao
do prazo da concessao, nos termos do art. 207, (S) 1, da Lei n
9.472, de 1997, e da clausula 3.3.;
XXIX - pagar todas as taxas de fiscalizacao e funcionamento das suas
instalacoes, na forma da regulamentacao;
XXX - publicar anualmente, independente do regime juridico a que
esteja sujeita, balanco e demonstracoes financeiras levantadas ao
final de cada exercicio social, observadas as disposicoes da
legislacao vigente e da regulamentacao editada pela ANATEL;
XXXI - observar as normas vigentes no pais quanto a utilizacao
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24
de mao-de-obra estrangeira, inclusive nos cargos de maior
qualificacao;
XXXII - indenizar os usuarios pelos danos efetivamente decorrentes
da nao prestacao do servico que seria exigivel frente aos parametros
de continuidade e as metas de universalizacao previstas no presente
Contrato;
XXXIII - nao despender com contratos de prestacao de servicos de
gerencia, inclusive assistencia tecnica, com entidades estrangeiras,
em relacao a receita anual do Servico Telefonico Fixo Comutado,
liquida de impostos e contribuicoes, valores superiores a:
a) 1% (um por cento) ao ano, ate 31/12/2000;
b) 0,5% (zero virgula cinco por cento) ao ano, de 01/01/2001 a
31/12/2002; e
c) 0,2% (zero virgula dois por cento) ao ano, a partir de
01/01/2003;
XXXIV - dar cumprimento a acordos firmados entre o Brasil e outros
paises e organismos internacionais, na forma regulamentada pela
ANATEL; e
XXXV - dar cumprimento aos contratos celebrados com a TELEBRAS,
cujos objetos sejam a prestacao de servicos pelo Centro de Pesquisa
e Desenvolvimento CPqD ou seu sucessor.
PARAGRAFO UNICO As decisoes relativas ao inciso XXXIII desta clausula
em contratos de prestacao de servicos e assistencia tecnica, entre a
Concessionaria e terceiros vinculados aos acionistas controladores, deverao ser
tomadas em assembleia geral extraordinaria, devendo a Concessionaria fazer
constar no seu estatuto social, ate 31.12.98, que as acoes preferenciais terao
direito a voto nessas decisoes, sem prejuizo do disposto no (S) 1 do artigo 115
da Lei n 6.404, de 15 de dezembro de 1976.
CLAUSULA 15.2. - Sem prejuizo das demais disposicoes constantes deste
Contrato e das garantias asseguradas em lei constituem direitos da
Concessionaria:
I - explorar o servico concedido dentro de sua estrategia
empresarial, definindo livremente seus investimentos, respeitadas a
regulamentacao editada pela ANATEL e as disposicoes deste Contrato;
II - indicar representante para acompanhar a atividade
fiscalizatoria da ANATEL;
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25
III - interromper, nos termos da clausula 8.3 deste Contrato, ou nao
atender a solicitacao de prestacao de servico para o assinante
inadimplente com as suas obrigacoes contratuais com a
Concessionaria;
IV- solicitar a instauracao do procedimento de arbitragem nas
hipoteses e na forma prescrita no Capitulo XXX deste Contrato;
V - ter preservadas as condicoes economicas de exploracao do servico
contra alteracoes que importem em enriquecimento imotivado da Uniao
ou dos usuarios nos termos do disposto no Capitulo XII;
VI - solicitar a revisao das tarifas aplicadas ao servico concedido,
na forma do disposto neste Contrato;
VII - solicitar da ANATEL a confidencialidade de informacao colhida
no exercicio da atividade fiscalizatoria, nos termos do disposto
neste Contrato:
VIII - empregar na execucao dos servicos equipamentos e infra-
estrutura que nao lhe pertencam, observado o disposto na clausula
21.1. deste Contrato; e
IX - contratar com terceiros o desenvolvimento de atividades
inerentes, acessorias ou complementares ao servico, bem como a
implementacao de projetos associados.
CLAUSULA 15.3. - Durante a vigencia do Contrato, a Concessionaria sera
a unica responsavel, perante terceiros, pelos atos praticados pelo seu pessoal,
prepostos e contratados, na prestacao do Servico Telefonico Fixo Comutado, bem
como pelo uso dos equipamentos, instalacoes ou redes, excluidas a Uniao e a
ANATEL de quaisquer reclamacoes e/ou indenizacoes.
CLAUSULA 15.4. - A Concessionaria nao podera opor embaracos a obras de
interesse publico, qualquer que seja a sua natureza, sempre que se tornar
necessaria a remocao de instalacoes ou de redes telefonicas para viabilizacao de
intervencoes promovidas, direta ou indiretamente, por qualquer orgao ou entidade
da Administracao publica.
CLAUSULA 15.5. - A Concessionaria devera pactuar diretamente com cada
Prefeitura Municipal das areas de exploracao do servico bem como com as demais
Concessionarias de servicos publicos as condicoes para colocacao de postes e
cruzetas para suspensao de suas linhas e cabos aereos, bem como dutos e
canalizacoes subterraneos destinados a passagem de cabos sob ruas e logradouros
publicos.
(S) 1 - A Concessionaria diligenciara junto aos titulares de bens
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26
publicos ou privados sobre ou sob os quais tenha que passar dutos ou
canalizacoes ou ainda instalar suportes para colocacao dos mesmos, obtendo o
respectivo consentimento ou servidao para tal fim.
(S) 2 - A Concessionaria devera promover junto as respetivas
autoridades municipais as tratativas necessarias ao estabelecimento das
condicoes para superacao das interferencias na rede necessaria a prestacao do
servico, inclusive quanto ao corte e poda de arvores.
CLAUSULA 15.6. - Nos termos do disposto no art. 73 da Lei n 9.472, de
1997, a Concessionaria podera utilizar postes, dutos, condutos e servidoes
pertencentes ou controlados por outros prestadores de servicos de
telecomunicacoes ou de outros servicos de interesse publico.
(S) 1 - A utilizacao dos meios referidos no caput desta clausula
devera ser realizada de forma nao discriminatoria e a precos justos e razoaveis.
(S) 2 - A Concessionaria devera tornar disponivel aos demais
prestadores de servicos de telecomunicacoes, classificados pela ANATEL como de
interesse coletivo, os meios de sua propriedade ou por ela controlados,
referidos no caput desta clausula, respeitadas as mesmas condicoes previstas no
paragrafo anterior.
(S) 3 - Sempre que a Concessionaria nao chegar a um acordo com os
demais prestadores de servicos acerca da utilizacao dos meios referidos nesta
clausula, cabera a ANATEL, isoladamente ou em conjunto com os demais orgaos
reguladores envolvidos, definir as condicoes desta utilizacao.
CLAUSULA 15.7. - A Concessionaria mantera, durante todo o prazo da
presente concessao, central de informacao e de atendimento do usuario,
funcionando 24 (vinte e quatro) horas por dia, capacitada para receber e
processar solicitacoes, queixas e reclamacoes encaminhadas pelos usuarios
pessoalmente ou por qualquer meio de comunicacao a distancia.
(S) 1 - A Concessionaria devera divulgar a todos os usuarios os
enderecos e codigos de acesso a sua central de informacao e de atendimento do
usuario, os quais deverao constar necessariamente do Contrato - Padrao com eles
firmado para prestacao do servico.
(S) 2 - A Concessionaria devera tornar disponivel e divulgar codigo
de acesso facil e gratuito para o encaminhamento de solicitacoes dos usuarios
por via telefonica.
(S) 3 - Todas as solicitacoes, reclamacoes ou queixas encaminhadas
pelos usuarios, por qualquer meio, deverao receber um numero de ordem, que sera
informado ao interessado para possibilitar seu acompanhamento.
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27
(S) 4 - O usuario sera informado pela Concessionaria nos prazos
definidos no Plano Geral de Metas de Qualidade, quanto as providencias adotadas
em funcao da sua solicitacao, reclamacao ou queixa.
(S) 5 - Caso a ANATEL constate existir dificuldade de acesso pelos
usuarios da central de informacao e de atendimento podera determinar a
Concessionaria a ampliacao dos meios de acesso disponiveis, sob pena de
considerar desatendida a obrigacao prevista nesta clausula.
CLAUSULA 15.8 - Na contratacao de servicos e na aquisicao de
equipamentos e materiais vinculados ao servico objeto deste Contrato, a
Concessionaria se obriga a considerar ofertas de fornecedores independentes,
inclusive os nacionais, e basear suas decisoes, com respeito as diversas ofertas
apresentadas, no cumprimento de criterios objetivos de preco, condicoes de
entrega e especificacoes tecnicas estabelecidas na regulamentacao pertinente.
(S) 1 - Nos casos em que haja equivalencia entre ofertas, a empresa
Concessionaria se obriga a utilizar como criterio de desempate, a preferencia a
servicos oferecidos por empresas situadas no Pais, equipamentos e materiais
produzidos no Pais, e, entre eles, aqueles com tecnologia nacional. A
equivalencia referida nesta clausula sera apurada quando, cumulativamente:
I - o preco nacional for menor ou igual ao preco do importado, posto
no territorio nacional, incluidos os tributos incidentes;
II - o prazo de entrega for compativel com as necessidades do
servico; e
III - sejam satisfeitas as especificacoes tecnicas estabelecidas na
regulamentacao pertinente e possuam certificacao expedida ou aceita
pela ANATEL, quando aplicavel.
(S) 2 - Compreende-se como servicos aqueles relacionados com a
pesquisa e desenvolvimento, planejamento, projeto, implantacao e instalacao
fisica, operacao, manutencao, supervisao e testes de avaliacao de sistemas de
telecomunicacoes.
(S) 3 - A operacionalizacao do disposto nesta clausula sera objeto de
regulamentacao por parte da ANATEL, incluindo sancoes aplicaveis.
CAPITULO XVI - DAS OBRIGACOES E PRERROGATIVAS DA ANATEL
CLAUSULA 16.1. - Alem das outras prerrogativas inerentes a sua funcao
de orgao regulador e das demais obrigacoes decorrentes do presente Contrato,
incumbira a ANATEL:
I - acompanhar e fiscalizar a prestacao do servico e a
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conservacao dos bens reversiveis, visando ao atendimento das normas,
especificacoes e instrucoes estabelecidas neste Contrato e em seus
anexos;
II - proceder as vistorias para a verificacao da adequacao das
instalacoes e equipamentos, determinando as necessarias correcoes,
reparos, remocoes, reconstrucoes ou substituicoes, as expensas da
Concessionaria;
III - regulamentar permanentemente a prestacao do servico concedido;
IV - intervir na execucao do servico quando necessario, a fim de
assegurar sua regularidade e o fiel cumprimento do Contrato e das
normas legais pertinentes;
V - aplicar as penalidades previstas na regulamentacao do servico e,
especificamente, neste Contrato;
VI - deliberar sobre os Planos Alternativos de Servico de Longa
Distancia Nacional apresentados pela Concessionaria;
VII - autorizar o reajuste e proceder a revisao das tarifas, nos
termos e conforme o disposto neste Contrato;
VIII - atuar dentro dos limites previstos neste Contrato com vista a
impedir o enriquecimento imotivado das partes, nos termos deste
Contrato;
IX - zelar pela boa qualidade do servico, receber, apurar e
solucionar queixas e reclamacoes dos usuarios, cientificando-os, em
ate noventa dias, das providencias tomadas com vista a repressao de
infracoes a seus direitos;
X - declarar extinta a Concessao nos casos previstos neste Contrato;
XI - zelar pela garantia de interconexao, dirimindo eventuais
pendencias surgidas entre a Concessionaria e demais prestadores;
XII - zelar pelo atendimento das metas de universalizacao previstas
neste Contrato, e as metas que vierem a ser estabelecidas nos Planos
de Metas posteriores;
XIII - acompanhar permanentemente o relacionamento entre a
Concessionaria e demais prestadores de servicos de telecomunicacoes,
dirimindo conflitos surgidos entre eles;
XIV - coibir condutas da Concessionaria contrarias ao regime
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de competicao, observadas as competencias legais do CADE;
XV - propor, por solicitacao da Concessionaria, ao Presidente da
Republica, por intermedio do Ministerio das Comunicacoes, a
declaracao de utilidade publica para fins de desapropriacao ou
instituicao de servidao administrativa, dos bens necessarios a
implantacao ou manutencao do servico objeto deste Contrato;
XVI - exercer a atividade fiscalizatoria do servico nos termos do
disposto neste Contrato; e
XVII - arrecadar as taxas relativas ao FISTEL, adotando as
providencias previstas na legislacao vigente.
CAPITULO XVII - DA CONCESSIONARIA
CLAUSULA 17.1. - A Concessionaria e empresa constituida segundo as
leis brasileiras, sob natureza de sociedade por acoes, tendo por finalidade
exclusiva a exploracao do servico objeto da presente concessao, ressalvados os
servicos nos termos do disposto no (S) 3 do art. 207 da Lei n 9.472, de 1997.
PARAGRAFO UNICO - Se aprovada alteracao estatutaria da Concessionaria,
os documentos que a formalizarem serao encaminhados a ANATEL para arquivamento,
passando a fazer parte integrante do presente Contrato.
CLAUSULA 17.2. - A Concessionaria e seus controladores se obrigam a
manter, durante todo o prazo da concessao e de sua prorrogacao, no minimo, todas
as condicoes de prestacao do servico e de capacitacao existentes a epoca da
entrada em vigencia do presente Contrato.
CLAUSULA 17.3. A Concessionaria e seus controladores se obrigam a
assegurar, durante o prazo da concessao e sua prorrogacao, a efetiva existencia,
em territorio nacional, dos centros de deliberacao e implementacao das decisoes
estrategicas, gerenciais e tecnicas envolvidas no cumprimento do presente
Contrato, inclusive fazendo refletir tal obrigacao na composicao e nos
procedimentos decisorios de seus orgaos de administracao.
PARAGRAFO UNICO A Concessionaria devera inserir, no seu estatuto, ate
31 de dezembro de 1998, disposicoes que garantam o cumprimento do disposto no
caput desta clausula.
CAPITULO XVIII - DA TRANSFERENCIA DA CONCESSAO E DO CONTROLE DA CONCESSIONARIA
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Clausula 18.1. - A transferencia da concessao ou do controle, direto
ou indireto, da Concessionaria so sera autorizada pela ANATEL, observados o
Plano Geral de Outorgas e o art. 202 da Lei n 9.472, de 1997, quando:
I - o cessionario preencha todos os requisitos estabelecidos nos
termos do art. 200 da Lei n 9.472, de 1997; e
II - a medida nao prejudique a competicao e nao coloque em risco a
execucao do Contrato e as normas gerais de protecao a ordem
economica.
PARAGRAFO UNICO - O descumprimento de qualquer disposicao constante
desta clausula importara na caducidade da presente concessao.
CLAUSULA 18.2. - Poderao ser livremente dadas em caucao as acoes da
Concessionaria cuja transferencia nao altere seu controle.
PARAGRAFO UNICO - No caso de caucao de acoes que importem oneracao do
patrimonio da Concessionaria, deverao ser previstos nos contratos de
financiamento dispositivos que submetam os credores, em caso de execucao, as
regras constantes deste Capitulo.
CAPITULO XIX - DO REGIME DE FISCALIZACAO
CLAUSULA 19.1. - A ANATEL exercera a fiscalizacao do servico ora
concedido a fim de assegurar o cumprimento dos pressupostos de universalizacao e
continuidade inerentes ao regime publico de sua prestacao, bem como para zelar
pelo cumprimento das metas e dos compromissos constantes do presente Contrato.
(S) 1 - A fiscalizacao a ser exercida pela ANATEL compreendera a
inspecao e o acompanhamento das atividades, equipamentos e instalacoes da
Concessionaria, implicando amplo acesso a todos os dados e informacoes da
Concessionaria ou de terceiros.
(S) 2 - As informacoes colhidas no exercicio da atividade
fiscalizatoria serao publicadas na Biblioteca, a excecao daquelas que, por
solicitacao da Concessionaria, sejam consideradas pela ANATEL como de carater
confidencial.
(S) 3 - As informacoes que venham a ser consideradas de carater
confidencial nos termos do paragrafo anterior, somente serao utilizadas nos
procedimentos correlacionados ao presente Contrato, respondendo a ANATEL e
aqueles por ela indicados por qualquer divulgacao, ampla ou restrita, de tais
informacoes fora deste ambito de utilizacao.
CLAUSULA 19.2. - A Concessionaria, por intermedio de
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31
representante indicado, podera acompanhar toda e qualquer atividade da
fiscalizacao da ANATEL, nao podendo obstar ou impedir a atuacao da fiscalizacao,
sob pena de incorrer nas penalidades previstas neste Contrato.
CAPITULO XX - DA PRESTACAO DE CONTAS PELA CONCESSIONARIA
Clausula 20.1. - Na forma da regulamentacao, a Concessionaria devera
enviar periodicamente a ANATEL relatorios estatisticos e circunstanciados de
todo o servico prestado, contendo, entre outros elementos, os indicadores de
expansao e abrangencia da rede de telefonia, bem como noticiando o estagio
tecnologico dos equipamentos utilizados.
CAPITULO XXI - DOS BENS VINCULADOS A CONCESSAO
Clausula 21.1. - Integram o acervo da presente concessao, sendo a ela
vinculados, todos os bens pertencentes ao patrimonio da Concessionaria e que
sejam indispensaveis a prestacao do servico ora concedido, especialmente aqueles
qualificados como tal no Anexo 01 - Qualificacao dos Bens Reversiveis da
Prestacao do Servico Telefonico Fixo Comutado Longa Distancia Nacional.
(S) 1 - Integram tambem o acervo dos bens vinculados a concessao as
autorizacoes de uso do espectro de radiofrequencias que lhe sejam outorgadas e,
quando couber, o direito de uso de posicoes orbitais, observado o disposto nos
artigos 48 e 161 da Lei n 9.472, de 1997, e ainda o constante da clausula 4.1.
do presente Contrato.
(S) 2 - Em relacao aos bens vinculados a concessao, a Concessionaria
somente podera empregar diretamente na prestacao do servico ora concedido
equipamentos, infra-estrutura, logiciarios ou qualquer outro bem que nao sejam
de sua propriedade mediante previa e expressa anuencia da ANATEL, que podera
dispensar tal exigencia nos casos e hipoteses dispostas na regulamentacao.
(S) 3 - Havendo risco a continuidade dos servicos ou impedimento da
reversao dos bens vinculados a concessao, a ANATEL podera negar autorizacao para
utilizacao de bens de terceiros ou exigir que o respectivo Contrato contenha
clausula pela qual o proprietario se obriga, em caso de extincao da concessao, a
manter os Contratos e em subrogar a ANATEL nos direitos dele decorrentes.
CAPITULO XXII - DO REGIME DE REVERSAO
CLAUSULA 22.1. - Quando da extincao da concessao reverterao
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automaticamente a ANATEL todos os bens vinculados a concessao na forma do
Capitulo XXI supra, resguardado a Concessionaria o direito as indenizacoes
previstas na legislacao e neste Contrato.
PARAGRAFO UNICO - Ate 180 (cento e oitenta) dias apos o advento da
extincao da concessao sera procedida uma vistoria dos bens que a integram e
lavrado um Termo de Devolucao e Reversao dos Bens, com indicacao detalhada do
estado de conservacao dos mesmos, facultado o acompanhamento por
representante(s) da Concessionaria.
CLAUSULA 22.2. - A Concessionaria se obriga a entregar os bens
reversiveis em perfeitas condicoes de operacionalidade, utilizacao e manutencao,
sem prejuizo do desgaste normal resultante do seu uso.
PARAGRAFO UNICO - Os bens reversiveis serao transferidos a ANATEL
livres de quaisquer onus ou encargos, observada a hipotese do paragrafo 2 da
clausula seguinte.
CLAUSULA 22.3. - A reversao dos bens de que trata o Capitulo XXI
supra, ao final do prazo contratual, sera feita sem indenizacao, ressalvado o
disposto nesta clausula.
(S) 1 - Somente cabera indenizacao em favor da Concessionaria caso
existam, ao final da Concessao, bens ainda nao integralmente amortizados, cuja
aquisicao tenha sido previamente autorizada pela ANATEL, ou adquiridos antes da
assinatura deste Contrato, com o objetivo de garantir a continuidade e a
atualidade do servico concedido.
(S) 2 - Alternativa ou supletivamente a indenizacao disposta no
paragrafo anterior, a ANATEL podera admitir a transferencia de bens que tenham
sido dados em garantia do seu proprio financiamento, subrogando-se na parcela
financiada ainda inadimplida.
CLAUSULA 22.4. - Ao final da Concessao a ANATEL procedera a avaliacao
dos bens referidos na clausula 21.1, podendo recusar a reversao de bens que
considere prescindiveis ou inaproveitaveis para aplicacao na exploracao do
servico, garantido o direito da Concessionaria ao contraditorio, inclusive
atraves da elaboracao e apresentacao, as suas expensas, de laudos ou estudos
demonstradores da necessidade de reversao.
PARAGRAFO UNICO - Caso a Concessionaria nao concorde com a decisao da
ANATEL quanto ao disposto nesta clausula admitir-se-a o recurso ao processo de
solucao de divergencias prescrito neste Contrato.
CAPITULO XXIII - DO PLANO DE SEGUROS
CLAUSULA 23.1. - Durante todo o prazo de vigencia da concessao, a
Concessionaria devera manter com Companhia Seguradora de porte compativel com o
objeto segurado registrada junto aos orgaos
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33
regulatorios do setor, as seguintes apolices de seguros necessarias para
garantir a efetiva e abrangente cobertura de riscos inerentes ao desenvolvimento
de todas as atividades contempladas no presente Contrato:
I - seguro do tipo "todos os riscos" para danos materiais cobrindo a
perda, destruicao ou dano em todos ou em qualquer bem integrante da
concessao, devendo tal seguro contemplar todas as coberturas
compreendidas de acordo com os padroes internacionais;
II - seguro de preservacao de condicoes economicas para continuidade
da exploracao do servico, cobrindo, no minimo, os custos
operacionais contra variacoes nas receitas da Concessionaria,
decorrentes de sinistros ou modificacoes nas condicoes de exploracao
do Contrato que nao sejam cobertas pelos seguros de danos materiais,
desde que a pactuacao desta modalidade de seguro seja admitida pelas
normas brasileiras e expressamente autorizada pelo Instituto de
Resseguros do Brasil IRB ou orgao equivalente; e
III - seguro garantia do cumprimento das obrigacoes relativas a
qualidade e a universalizacao previstas neste Contrato ("Performance
Bond", carta de credito e valor mantido em caucao) no valor
correspondente a 10% do montante de investimentos estimado a cada
ano para cumprimento das metas previstas no presente Contrato.
(S) 1 - A Concessionaria devera fazer constar das apolices de seguro
a obrigacao de a Seguradora informar, por escrito, com antecedencia minima de 10
(dez) dias, a Concessionaria e a ANATEL, quaisquer fatos que possam implicar o
cancelamento total ou parcial das apolices contratadas, reducao de coberturas,
aumento de franquias ou reducao dos valores segurados.
(S) 2 - As apolices emitidas em atendimento ao disposto nesta
clausula nao poderao conter obrigacoes, restricoes ou disposicoes que colidam
com as disposicoes do presente Contrato ou com a regulamentacao e deverao conter
declaracao expressa da Seguradora que conhece integralmente o presente ajuste,
inclusive no tocante aos limites dos direitos da Concessionaria.
(S) 3 - No caso de descumprimento, pela Concessionaria, da obrigacao
de manter em plena vigencia as apolices de seguro previstas, a ANATEL,
independentemente da sua faculdade de decretar a intervencao ou a caducidade da
presente concessao, podera proceder a contratacao e ao pagamento direto dos
premios respectivos, correndo os custos por conta da Concessionaria.
(S) 4 - Anualmente, ate o final do mes de Janeiro, a
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Concessionaria devera apresentar certificado emitido pela(s) seguradora(s)
confirmando que todos os premios vencidos no ano precedente encontram-se
quitados e que as apolices contratadas estao em plena vigencia ou foram
renovadas, devendo neste caso serem encaminhados os termos das novas apolices.
(S) 5 - As apolices referidas nesta clausula deverao obedecer aos
seguintes prazos de apresentacao e vigencia:
I a apolice referida no inciso I do caput desta clausula devera ser
apresentada em ate 90 (noventa) dias, contados da assinatura do presente
Contrato e tera vigencia imediata;
II a apolice referida no inciso II do caput desta clausula devera ser
apresentada ate 30 de novembro de 1999, com vigencia a partir de 1 de janeiro
de 2000; e
III a apolice referida no inciso III do caput desta clausula devera
ser apresentada ate 30 de novembro de 2000, com vigencia a partir de 1 de
janeiro de 2001.
(S) 6 - A ANATEL podera alterar as coberturas ou os prazos de
apresentacao das apolices referidas nesta clausula, com vistas a adequar tais
exigencias a regulamentacao editada pela Superintendencia de Seguros Privados
SUSEP ou as condicoes estabelecidas pelo Instituto de Resseguros do Brasil IRB,
bem como quando forem editadas normas que obstem a contratacao dos seguros aqui
referidos ou quando nao existam condicoes de mercado amplo e competitivo que
permitam a sua contratacao a custos razoaveis.
CAPITULO XXIV - DA INTERCONEXAO
Clausula 24.1. - A Concessionaria tem obrigacao de permitir,
facilitar, tornar disponivel e efetivar a interconexao, a rede por ela operada,
de redes de outros prestadores de servicos de telecomunicacoes, em regime
publico ou privado, sempre que estes o solicitem, observando e fazendo observar
as normas e regulamentos editados pela ANATEL a este respeito.
CLAUSULA 24.2. - As tarifas de uso de rede vigentes na assinatura do
presente Contrato sao aquelas constantes da Portaria n. 2.505, de 20 de
dezembro de 1996, do Ministerio das Comunicacoes e poderao ser atualizadas e
revistas consoante o disposto neste Contrato e na regulamentacao.
CLAUSULA 24.3. A Concessionaria tera os mesmos direitos e obedecera as
mesmas condicoes de interconexao a que estejam sujeitos os demais prestadores.
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PARAGRAFO UNICO - A Concessionaria devera tornar disponivel para
interconexao os elementos da rede com maior nivel de desagregacao tecnicamente
possivel, observada a regulamentacao da ANATEL.
CAPITULO XXV - DAS SANCOES
CLAUSULA 25.1. - Na execucao do presente Contrato, a Concessionaria se
sujeita as seguintes sancoes, que serao aplicadas mediante decisao fundamentada
da ANATEL, assegurado o seu direito de defesa nos termos do disposto no seu
Regimento Interno e sem prejuizo das demais penalidades previstas na
regulamentacao:
I - por violacao das disposicoes do presente Contrato que importe em
nao atendimento de metas de universalizacao; multa de ate
R$50.000.000,00 (cinquenta milhoes de reais);
II - por ato ou omissao contrario as disposicoes constantes deste
Contrato que acarrete prejuizo a competicao no setor de
telecomunicacoes; multa de ate R$ 50.000.000,00 (cinquenta milhoes
de reais);
III - por violacao as disposicoes contratuais que importe em nao
cumprimento das metas e parametros de qualidade na prestacao do
servico; multa de ate R$40.000.000,00 (quarenta milhoes de reais);
IV - por outro ato ou omissao nao enquadrado nos incisos anteriores
que importe em violacao aos direitos do usuario definidos neste
Contrato ou acarrete-lhe prejuizo; multa de ate R$30.000.000,00
(trinta milhoes de reais);
V por ato ou omissao que viole o disposto na clausula 15.8 deste
Contrato, referente a contratacao de servicos e aquisicao de
equipamentos e materiais produzidos no Pais; multa de R$
30.000.000,00 (trinta milhoes de reais);
VI - por qualquer ato ou omissao que traga obice ou dificuldade ao
exercicio da atividade fiscal da ANATEL prevista neste Contrato;
multa de ate R$20.000.000 (vinte milhoes de reais);
VII - por ato, omissao ou negligencia que coloque em risco a
seguranca das instalacoes; multa de ate R$15.000.000,00 (quinze
milhoes de reais);
VIII - por ato ou omissao que acarrete dano ou ponha em risco bens
ou equipamentos vinculados a concessao; multa de ate R$
10.000.000,00 (dez milhoes de reais); e
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IX - pelo descumprimento de qualquer obrigacao prevista
expressamente neste Contrato, exceto as indicadas nos incisos
anteriores, cujas sancoes ja estao neles estabelecidas; multa de ate
R$ 10.000.000,00 (dez milhoes de reais).
(S) 1 - A infracao prescrita no inciso I desta clausula estara
caracterizada quando a Concessionaria nao cumprir, nos prazos previstos neste
Contrato, suas obrigacoes quanto a expansao do servico, ampliacao da prestacao
do servico, atraves de telefones de uso publico e atendimento a localidades,
consoante o disposto no Plano Geral de Metas de Universalizacao, e a sancao sera
aplicada levando em consideracao, alem dos principios gerais constantes deste
Capitulo, os seguintes fatores:
a) a diferenca entre o estagio de implementacao verificado e a meta
definida no Contrato;
b) a possibilidade de recuperacao do cronograma de implementacao as
expensas da Concessionaria;
c) o prejuizo para a politica refletida no Plano Geral de Metas para
a Universalizacao;
d) os danos trazidos aos beneficiarios diretos das metas
desatendidas; e
e) eventuais circunstancias de ordem tecnica ou economica que possam
atenuar a responsabilidade da Concessionaria, sem elidi-la.
(S) 2 - A infracao prescrita no inciso II supra tera sua gravidade
definida exclusivamente em funcao dos criterios gerais prescritos na clausula
25.2 e sera caracterizada pela conduta da Concessionaria que, direta ou
indiretamente, possa importar prejuizo a competicao no setor, especialmente:
a) oferecimento de obice ou dificuldade a opcao por outro prestador
do servico concedido ou do servico de longa distancia nacional e
internacional;
b) recusa em dar interconexao a prestador de servico de
telecomunicacoes;
c) oferecimento de obices ou dificuldades a atividade de prestadores
de servico de valor adicionado;
d) condicionamento da prestacao do servico concedido ou oferecimento
de vantagens em funcao de aquisicao, pelo usuario, de servico
estranho ao presente Contrato;
e) execucao de qualquer servico de telecomunicacoes que nao seja
objeto de concessao ou autorizacao outorgadas pela
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ANATEL em seu favor;
f) pela nao preservacao dos niveis de qualidade praticados quanto a
interconexao; e
g) procrastinacao na entrega de informacoes essenciais a atividade
dos demais prestadores, especialmente no que tange as bases
cadastrais.
(S) 3 - A infracao prescrita no inciso III desta clausula sera
caracterizada pela prestacao reiterada do servico concedido aquem dos parametros
de qualidade definidos no Plano Geral de Metas de Qualidade ou pela comprovada
violacao dos indicadores referidos no Capitulo VI, sendo na primeira hipotese
considerada infracao grave, especialmente:
a) a nao alocacao na operacao e manutencao do servico dos recursos
humanos e materiais necessarios a preservacao dos padroes minimos de
qualidade; e
b) negligencia na modernizacao da rede que afete a qualidade do
servico.
(S) 4 - A infracao prescrita no inciso IV supra tera sua escala de
gravidade definida em funcao do numero de usuarios atingidos e dos prejuizos
causados, ficando caracterizada pela violacao, comissiva ou omissiva, direta ou
indireta, de obrigacao prevista neste Contrato, que nao implique afronta aos
deveres quanto a universalizacao e qualidade, mas que acarrete violacao dos
direitos dos usuarios, especialmente:
a) a interrupcao na prestacao dos servicos por prazo superior ao
estabelecido no Plano de Metas de Qualidade, salvo a ocorrencia das
situacoes previstas no paragrafo unico da clausula 6.3;
b) a recusa em prestar o servico concedido a qualquer interessado;
c) o nao cumprimento do dever de prestar informacoes ao usuario;
d) a violacao do sigilo de telecomunicacoes, fora das hipoteses
legais, ainda que praticada por terceiros nas instalacoes sob
responsabilidade da Concessionaria;
e) a nao manutencao de central de informacao e de atendimento ao
usuario na forma prescrita neste Contrato;
f) a cobranca de tarifa ou preco em desacordo com as regras
estipuladas neste Contrato e na regulamentacao; e
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g) a restricao ao exercicio do direito a livre escolha entre os
Planos de Servico de Longa Distancia Nacional.
(S) 5 - A sancao prevista no inciso V sera caracterizada pela
verificacao de violacao da obrigacao contida na clausula 15.8 e tera sua
gravidade definida conforme dispuser a regulamentacao.
(S) 6 - A infracao prescrita no inciso VI supra tera sua gravidade
definida em funcao da relevancia da atividade fiscal obstada e sera
caracterizada pela violacao, comissiva ou omissiva, direta ou indireta, da
Concessionaria ou de seus prepostos, que impeca ou dificulte a atividade de
fiscalizacao exercida pela ANATEL, seus prepostos, agentes ou mesmo pelos
usuarios, especialmente:
a) recusa da Concessionaria em atender pedido de informacao
formulado pela ANATEL relacionada ao servico concedido ou aos bens a
ele afetos;
b) oferecimento de entrave a atuacao dos agentes de fiscalizacao da
ANATEL;
c) omissao em cumprir obrigacao de publicidade prevista neste
Contrato, ou na regulamentacao; e
d) nao envio ou envio intempestivo de qualquer informacao, dado,
relatorio ou documento que, por forca da regulamentacao ou deste
Contrato, deveria ser remetida a ANATEL.
(S) 7 - A infracao prescrita no inciso VII desta clausula tera sua
gravidade definida em funcao da proporcao do risco ensejado e sera caracterizada
pela conduta da Concessionaria que afronte as regras dispostas no presente
Contrato e na regulamentacao, viole as normas e padroes tecnicos de seguranca ou
que coloquem em risco as instalacoes afetas ao servico concedido, especialmente:
a) o emprego, no servico concedido, de equipamento nao certificado
pela ANATEL, quando exigida a certificacao;
b) a nao alocacao na operacao e manutencao do servico dos recursos
humanos e materiais necessarios a preservacao dos padroes minimos de
seguranca; e
c) nao adocao de precaucoes que sejam recomendadas para o servico
ora concedido.
(S) 8 - A infracao prescrita no inciso VIII desta clausula tera sua
gravidade definida em funcao da relevancia, do vulto economico e da
essencialidade dos bens envolvidos e sera caracterizada pela conduta da
Concessionaria que contraria o disposto neste Contrato ou na regulamentacao e
que possa por em risco bens ou equipamentos vinculados a presente
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concessao ou dificultar a reversao dos mesmos, em especial:
a) a nao manutencao de inventario e registro dos bens referidos na
clausula 21.1.;
b) pelo emprego, diretamente na prestacao do servico objeto da
presente concessao, de bens de terceiros sem previa anuencia da
ANATEL ou sem que esta seja dispensada em regulamento; e
c) pela negligencia na conservacao dos bens reversiveis, observada a
regulamentacao.
(S) 9 - A sancao prevista no inciso IX sera caracterizada pela
verificacao de violacao de obrigacao contratual nao compreendida nos incisos
anteriores, em especial aquela prevista no inciso XXXI da clausula 15.1.
(S) 10 - A sancao prevista no inciso II supra tem carater contratual e
sera aplicada pela ANATEL independentemente das providencias que venham a ser
adotadas pelo CADE.
(S) 11 - O nao recolhimento de qualquer multa fixada nos termos do
disposto na presente clausula no prazo fixado pela ANATEL caracterizara falta
grave, ensejando a intervencao na Concessionaria nos termos do disposto no
Capitulo XXVIII, alem de implicar a cobranca de multa moratoria de 0,33% (zero
virgula trinta e tres por cento) ao dia, ate o limite de 10% (dez por cento),
acrescida da taxa referencial SELIC para titulos federais, a ser aplicada sobre
o valor da divida, considerando todos os dias de atraso de pagamento.
CLAUSULA 25.2. - Para aplicacao das multas contratuais previstas neste
Capitulo serao observadas as regras contidas no Titulo VI do Livro III da Lei n
9.472, de 1997, e na regulamentacao.
(S) 1 - Na definicao da gravidade das sancoes e na fixacao das
multas, a ANATEL observara as seguintes circunstancias:
I - a proporcionalidade entre a intensidade do apenamento e a
gravidade da falta, inclusive quanto ao numero dos usuarios
atingidos;
II - os danos resultantes da infracao para o servico e para os
usuarios;
III - a vantagem auferida pela Concessionaria em virtude da
infracao;
IV - a participacao da Concessionaria no mercado dentro de sua area
geografica de prestacao do servico;
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40
V - a situacao economica e financeira da Concessionaria, em especial
a sua capacidade de geracao de receitas e o seu patrimonio;
VI - os antecedentes da Concessionaria;
VII - a reincidencia especifica, assim entendida a repeticao de
falta de igual natureza apos o recebimento de notificacao anterior;
e
VIII - as circunstancias gerais agravantes ou atenuantes da
infracao.
(S) 2 - Independente dos criterios especificos de graduacao previstos
em cada inciso da clausula anterior e de outros previstos na regulamentacao, a
gradacao das penas observara a seguinte escala:
I - a infracao sera considerada leve quando decorrer de condutas
involuntarias ou escusaveis da Concessionaria e da qual ela nao se
beneficie;
II - a infracao sera considerada de gravidade media quando decorrer
de conduta inescusavel, mas que nao traga para a Concessionaria
qualquer beneficio ou proveito, nem afete numero significativo de
usuarios; e
III - a infracao sera considerada grave quando a ANATEL constatar
presente um dos seguintes fatores:
a) ter a Concessionaria agido com ma-fe;
b) da infracao decorrer beneficio direto ou indireto para a
Concessionaria;
c) a Concessionaria for reincidente na infracao;
d) o numero de usuarios atingido for significativo; e
e) na hipotese prevista no (S) 10 da clausula anterior.
(S) 3 - A criterio da ANATEL, nas infracoes classificadas como leves,
quando da sua primeira ocorrencia, podera ser aplicada a pena de advertencia a
Concessionaria, que sera comunicada formalmente da sancao, sem prejuizo da
publicacao da decisao na Imprensa Oficial.
(S) 4 - Para aplicacao das sancoes previstas neste Capitulo sera
observado o Procedimento Sancionatorio previsto no Regimento Interno da ANATEL.
(S) 5 - Nas infracoes previstas no inciso IV da clausula 25.1. a
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41
ANATEL podera determinar que a Concessionaria abata do valor a ser recolhido, a
titulo de multa, montantes a serem pagos como ressarcimento aos usuarios
atingidos, fixando no ato de aplicacao da pena os criterios para o
ressarcimento, o prazo em que deve ser pago e o valor maximo do abatimento.
(S) 6 - A hipotese prevista no paragrafo anterior so podera ser
adotada quando verificado que o interesse ou a necessidade dos usuarios nao
elidira a responsabilidade da Concessionaria pelas demais indenizacoes civis
devidas.
CLAUSULA 25.3. - As multas previstas nesta clausula serao aplicadas
sem prejuizo da caracterizacao das hipoteses de intervencao ou declaracao de
caducidade previstas no presente Contrato.
PARAGRAFO UNICO - Em caso de inexecucao total ou parcial do ajuste ou
de atrasos injustificados superiores a 120 (cento e vinte) dias no cumprimento
das metas previstas neste Contrato, a Concessionaria estara sujeita a decretacao
de caducidade da Concessao nos termos do disposto na clausula 26.4.
CLAUSULA 25.4. - Os valores das multas previstas neste Capitulo serao
reajustados, anualmente, mediante a aplicacao do IGP-DI, vencendo o primeiro
reajuste apos um ano da assinatura do presente Contrato.
CAPITULO XXVI - DA EXTINCAO DA CONCESSAO
Clausula 26.1. - Considerar-se-a extinto o Contrato de concessao nas
seguintes hipoteses:
I - termino do prazo de concessao do servico, desde que nao tenha
sido prorrogado nos termos do presente Contrato;
II - encampacao, consoante o Art. 113 da Lei n 9.472, de 1997;
III - caducidade, nos termos do disposto no artigo 114 da Lei n
9.472, de 1997, e no presente Contrato;
IV - rescisao amigavel ou judicial, nos termos do art. 115 da Lei n
9.472, de 1997; e
V - anulacao.
(S) 1 - Extinta a concessao, retornarao a ANATEL os direitos e
deveres relativos a prestacao do servico concedido, com reversao dos bens
referidos na clausula 22.1, resguardado a Concessionaria o direito as
indenizacoes previstas na legislacao e neste Contrato.
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42
(S) 2 - Apos a extincao da concessao, a ANATEL procedera aos
levantamentos, avaliacoes e liquidacoes necessarios, no prazo de 180 (cento e
oitenta) dias contados da assuncao do servico, salvo na hipotese de termino do
prazo contratual, quando estas providencias deverao ser adotadas pela ANATEL com
antecedencia.
(S) 3 - Extinta a concessao antes do termo contratual, a ANATEL,
sem prejuizo de outras medidas cabiveis, podera:
I - ocupar, temporariamente, bens moveis e imoveis e valer-se de
pessoal empregado na prestacao do servico necessarios a sua
continuidade; e
II - manter os Contratos firmados pela Concessionaria com terceiros
pelo prazo e nas condicoes inicialmente ajustadas.
CLAUSULA 26.2. - A reversao ao termino do prazo contratual sera feita
sem indenizacao, salvo quando ocorrer a hipotese prevista na clausula 22.3.
CLAUSULA 26.3. - Nos termos do art. 113 da Lei n 9.472, de 1997,
considera-se encampacao a retomada do servico pela ANATEL durante o prazo de
concessao, em face de razao extraordinaria de interesse publico, mediante lei
autorizativa especifica e precedida de pagamento de indenizacao.
CLAUSULA 26.4. - O presente Contrato podera ter sua caducidade
declarada por ato do Conselho Diretor da ANATEL, precedido de processo
administrativo que assegure ampla defesa a Concessionaria, nas hipoteses de:
I - transferencia do controle societario, cisao, fusao,
transformacao da Concessionaria ou ainda incorporacao ou reducao do
seu capital sem a previa aprovacao da ANATEL;
II - transferencia irregular do Contrato;
III - nao cumprimento do compromisso de transferencia referido na
clausula 18.1. e no art. 87 da Lei n 9.472, de 1997;
IV - falencia ou dissolucao da Concessionaria;
V - nao atendimento das exigencias de cobertura por planos de
seguros em afronta as obrigacoes previstas na clausula 23.1. e tal
omissao nao puder, a criterio da ANATEL, ser suprida com a
intervencao; e
VI - quando, nos termos do art. 114, inciso IV, da Lei n 9.472, de
1997, ocorrer qualquer das hipoteses previstas na clausula 28.1. e,
a criterio da ANATEL, a intervencao for considerada inconveniente,
inocua ou ainda injustamente benefica a Concessionaria.
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43
(S) 1 - Sera considerada desnecessaria a intervencao quando a demanda
pelo servico objeto da concessao puder ser atendida, mediante permissao, por
outras prestadoras de modo regular e imediato.
(S) 2 - A declaracao de caducidade nao elidira a aplicacao das
penalidades cabiveis nos termos deste Contrato pelas infracoes praticadas pela
Concessionaria, nem prejudicara o direito a indenizacao definida nos termos do
Capitulo seguinte.
CLAUSULA 26.5. - A Concessionaria tera direito a rescisao contratual,
judicial ou amigavel, quando por acao ou omissao do Poder Publico, a execucao do
Contrato se tornar excessivamente onerosa, nos termos do art. 115 da Lei n
9.472, de 1997.
PARAGRAFO UNICO - Nao constitui motivo para a rescisao contratual a
introducao ou a ampliacao da competicao entre os diversos prestadores do servico
objeto da concessao, sendo certo que a Concessionaria assume a presente
concessao ciente de que exercera suas atividades sem qualquer reserva ou
exclusividade de mercado.
CLAUSULA 26.6. - A anulacao sera decretada pela ANATEL em caso de
irregularidade insanavel e grave verificada no presente Contrato.
CAPITULO XXVII- DA INDENIZACAO
CLAUSULA 27.1. - Para fins de calculo de indenizacao, devida pela
ANATEL a Concessionaria nos casos expressamente previstos no presente Contrato,
observar-se-a o seguinte:
I - Termino do prazo contratual - nao cabera indenizacao, exceto se
comprovado que o nao pagamento significa enriquecimento imotivado
por parte da Uniao em funcao da reversao de bens ainda nao
integralmente amortizados, observado o disposto na clausula 22.3.;
II - Encampacao - observado o disposto no art. 113 da Lei n 9.472,
de 1997, a indenizacao, que sera paga previamente ao ato, deve
corresponder ao valor dos bens que reverterem ao poder concedente,
descontada a sua depreciacao.
III - Caducidade - independentemente da aplicacao das penalidades e
da reparacao dos danos decorrentes do inadimplemento, nos termos do
Contrato, a Concessionaria somente podera postular indenizacao se
comprovadamente estiver a ocorrer enriquecimento imotivado por parte
da Uniao pela reversao de bens nao integralmente amortizados ou
depreciados, descontando o valor dos danos causados e das multas
cominadas, bem como, quando o caso, das obrigacoes
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44
financeiras nao satisfeitas;
IV - Rescisao amigavel ou judicial - nao cabera indenizacao, exceto
se contrariamente for fixado em sentenca judicial; e
V - Anulacao - somente quando comprovado que a Concessionaria nao
concorreu para a ilegalidade, cabera indenizacao correspondente
apenas ao valor efetivo dos bens que reverterem para a Uniao,
calculado na data da decretacao da anulacao, desde que estes bens
ainda nao estejam integralmente amortizados pela exploracao dos
servicos.
(S) 1 O valor provisorio a ser antecipado pela ANATEL para os casos
de encampacao sera calculado na forma prescrita na lei autorizativa especifica.
(S) 2 - Quando advier a caducidade por culpa comprovada da
Concessionaria, esta acarretara tambem:
a) retencao dos creditos decorrentes do Contrato, inclusive com
apropriacao de receitas decorrentes de pagamentos feitos pelos
usuarios do servico;
b) responsabilizacao por prejuizos causados a Uniao e aos usuarios;
c) aplicacao de multas nos termos do disposto no presente Contrato e
na legislacao vigente; e
d) perda do seguro garantia previsto na clausula 23.1.
(S) 3 - Excetuada a hipotese de encampacao, a indenizacao cabivel
para os demais casos de extincao do Contrato sera calculada nos termos deste
capitulo e parcelada pelo numero de meses a que ainda seria vigente a concessao,
devendo a primeira parcela vencer apos um ano da extincao do Contrato.
(S) 4 - A ANATEL podera transferir para o prestador que suceder a
Concessionaria na exploracao do servico, o onus de pagamento das respectivas
indenizacoes, assumindo novamente a obrigacao de pagamento, caso o novo
prestador atrase em mais de 90 (noventa) dias os pagamentos.
CAPITULO XXVIII - DA INTERVENCAO
CLAUSULA 28.1. - A intervencao na Concessionaria podera ser decretada
pela ANATEL, a seu criterio e no interesse publico, atraves de ato especifico e
motivado do seu Conselho Diretor, sempre que, por falha da Concessionaria,
houver risco quanto a continuidade e seguranca do servico e
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45
em especial nas seguintes situacoes:
I - paralisacao injustificada do servico, assim entendida a
interrupcao da prestacao fora das hipoteses previstas no presente
Contrato e sem a apresentacao de razoes tidas pela ANATEL como aptas
a justifica-la;
II - inadequacao ou insuficiencias reiteradas no servico prestado,
caracterizadas pelo nao atendimento dos parametros de qualidade
previstos no presente Contrato e na regulamentacao, mesmo apos
notificacao de prazo, pela ANATEL, para regularizacao da situacao;
III - pratica de ma administracao que coloque em risco a
continuidade do servico;
IV - pratica reincidente de infracoes definidas como graves nos
termos da clausula 25.1 supra;
V - nao atendimento das metas de universalizacao, assim entendido o
descumprimento injustificado do cronograma de implementacao das
obrigacoes de universalizacao presentes neste Contrato;
VI - recusa injustificada de interconexao, assim entendida a
negativa, delonga ou qualquer atitude protelatoria na negociacao ou
efetivacao da ligacao a sua rede solicitada por outro prestador,
observadas as condicoes de interconexao arbitradas pela ANATEL;
VII - infracao da ordem economica, caracterizada pela aplicacao de
sancoes por pratica contraria a concorrencia; e
VIII - omissao em prestar contas a ANATEL ou oferecimento de obice a
atividade fiscalizatoria que pressuponham a pratica de qualquer das
ocorrencias previstas nos incisos anteriores.
CLAUSULA 28.2. - O ato de intervencao devera, necessariamente, indicar
o prazo, os motivos, os objetivos e limites, alem de designar o interventor.
PARAGRAFO UNICO - O prazo e os limites da intervencao deverao ser
compativeis e proporcionais aos motivos que a ensejaram.
CLAUSULA 28.3. - A intervencao sera precedida de procedimento
administrativo instaurado pela ANATEL, no qual sera assegurado o amplo direito
de defesa da Concessionaria.
PARAGRAFO UNICO - Quando imprescindivel a intervencao imediata, podera
ela ser decretada cautelarmente pela ANATEL, sem previa
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46
manifestacao da Concessionaria, devendo, neste caso, o procedimento ser
imediatamente instaurado na data da decretacao e concluido em ate cento e
oitenta dias, prazo em que podera a Concessionaria exercer seu direito amplo a
defesa.
CLAUSULA 28.4. - A decretacao da intervencao nao afetara o curso
regular dos negocios da Concessionaria nem seu normal funcionamento, produzindo,
contudo, o imediato afastamento de seus administradores.
CLAUSULA 28.5. - A funcao de interventor podera recair sobre agente
dos quadros da ANATEL, pessoa especificamente nomeada, colegiado ou empresa,
assumindo a Concessionaria os custos da remuneracao.
(S) 1 - Dos atos do interventor cabera recurso a ANATEL.
(S) 2 - O interventor prestara contas e respondera pelos atos que
praticar.
(S) 3 - Para os atos de alienacao e disposicao do patrimonio da
Concessionaria, o interventor necessitara de previa autorizacao da ANATEL.
CLAUSULA 28.6. - Nao sera decretada a intervencao quando, a juizo da
ANATEL, ela for considerada desnecessaria.
PARAGRAFO UNICO - A intervencao sera considerada desnecessaria nas
hipoteses prescritas no (S) 1 da clausula 26.4. supra, bem como naquelas
previstas no art. 114, inciso IV da Lei n 9.472, de 1997.
CAPITULO XXIX - DAS EXPROPRIACOES E IMPOSICOES ADMINISTRATIVAS
Clausula 29.1. - Caso haja a necessidade, para implementacao,
prestacao ou modernizacao do servico, de realizar alguma desapropriacao ou
servidao administrativa, os onus serao suportados integralmente pela
Concessionaria, devendo a ANATEL solicitar do Presidente da Republica a emissao
do ato de decretacao de utilidade publica.
CAPITULO XXX - DA ARBITRAGEM
Clausula 30.1. - Os eventuais conflitos que possam surgir em materia
da aplicacao e interpretacao das normas da concessao serao resolvidos pela
ANATEL no exercicio da sua funcao de orgao regulador conforme prescrito nos
artigos. 8 e 19 da Lei n 9.472, de 1997, podendo a Concessionaria recorrer ao
procedimento de arbitragem disposto no presente Capitulo exclusivamente quando
inconformada com a decisao da ANATEL relativa as seguintes materias:
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47
I - violacao do direito da Concessionaria a protecao de sua situacao
economica, conforme prescrito no Capitulo XII;
II - revisao das tarifas, prevista no Capitulo XII; e
III - indenizacoes devidas quando da extincao do presente Contrato,
inclusive quanto aos bens revertidos.
PARAGRAFO UNICO - A submissao de qualquer questao a arbitragem nao
exime a ANATEL e a Concessionaria da obrigacao de dar integral cumprimento a
este Contrato, nem permite a interrupcao das atividades vinculadas a concessao.
CLAUSULA 30.2. - O processo de arbitragem tera inicio mediante
comunicacao remetida por uma parte a outra, requerendo a instalacao do Tribunal
Arbitral de que trata este Capitulo e indicando detalhadamente a materia em
torno da qual gira a controversia.
PARAGRAFO UNICO - A ANATEL podera rejeitar a instalacao do Tribunal
Arbitral se, motivada e justificadamente, demonstrar que a controversia nao se
enquadra no rol de materias prevista na clausula 30.1.
CLAUSULA 30.3. - O Tribunal Arbitral sera composto por 5 (cinco)
membros, assim nomeados:
I - 2 (dois) membros efetivos e respectivos suplentes indicados pelo
Conselho Diretor da ANATEL dentre especialistas nas areas afetas a
materia controvertida, nao pertencentes aos seus quadros, sendo pelo
menos um, que o presidira, detentor de conhecimentos especificos em
regulamentacao juridica de telecomunicacoes;
II - 2 (dois) membros efetivos e respectivos suplentes indicados
pela Concessionaria, dentre especialistas nas areas afetas a materia
controvertida, que nao sejam seus empregados, sendo pelo menos um
detentor de conhecimentos especificos em regulamentacao juridica de
telecomunicacoes; e
III - 1 (um) membro efetivo e respectivo suplente indicado pelos
membros referidos nos incisos anteriores.
(S) 1 - O Tribunal Arbitral podera ser assistido pelos peritos
tecnicos que considere conveniente designar.
(S) 2 - Considera-se constituido o Tribunal na data em que todos os
arbitros aceitarem as suas indicacoes e comunicarem a ambas as partes as suas
aceitacoes.
(S) 3 - O Tribunal julgara segundo o direito constituido e suas
decisoes tem forca cogente, independentemente de homologacao judicial.
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CLAUSULA 30.4. - Nao tendo sido rejeitado pela ANATEL ou sendo
superado tal questionamento, sera iniciado o Processo versado no presente
Capitulo, o qual obedecera ao seguinte procedimento:
I - as partes terao 10 (dez) dias contados do recebimento da
comunicacao de que trata o caput da clausula anterior, para indicar
os membros do Tribunal Arbitral, o qual sera instalado imediatamente
apos a aceitacao de todos os seus membros;
II - estando inerte uma das partes ou tendo oferecido resistencia a
instalacao o Tribunal Arbitral, a outra parte podera se utilizar da
faculdade prevista no art. 7 da Lei n 9.307, de 23 de setembro de
1996;
III - instalado o Tribunal Arbitral, sera aberto prazo sucessivo de
25 (vinte e cinco) dias para que as partes apresentem suas razoes
sobre a materia controvertida, podendo nesta oportunidade apresentar
laudos, pericias, pareceres, juntar documentos ou informacoes que
entendam relevantes para sustentar sua posicao;
IV - apresentados os memoriais, o Tribunal analisara as razoes
expostas e podera, por requerimento de um de seus membros,
determinar a elaboracao de laudos, pericias ou pareceres, solicitar
informacoes ou documentos para as partes, bem como realizar
diligencias e tomar as providencias que entenda necessarias para a
perfeita instrucao da materia controvertida;
V - durante a coleta dos elementos a que se refere o inciso
anterior, serao sempre permitidos as partes a manifestacao e o
contraditorio, obedecidos os principios da informalidade, da
consensualidade e da celeridade que pautarao o procedimento;
VI - declarada encerrada a instrucao, sera concedido prazo comum de
15 (quinze) dias para que as partes apresentem suas alegacoes
finais;
VII - transcorrido o prazo prescrito no inciso anterior,
independentemente da apresentacao das alegacoes finais, o Tribunal
proferira sua decisao em prazo nao superior a 30 (trinta) dias;
VIII - da decisao do Tribunal Arbitral nao cabera recurso, exceto
pedido de reconsideracao, cabivel apenas na hipotese da decisao ter
sido adotada por maioria de apenas um voto; e
IX - so cabera invalidacao do processo de arbitragem nas hipoteses
prescritas no art. 32 da Lei n 9.307/96.
PARAGRAFO UNICO - As despesas com o processo de arbitragem,
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49
abrangendo, inclusive, as custas de laudos, pareceres e pericias, bem como os
honorarios dos membros do Tribunal, serao imputadas a Concessionaria ou a
ANATEL, conforme decisao do Tribunal Arbitral.
CAPITULO XXXI - DO REGIME LEGAL APLICAVEL E DOS DOCUMENTOS APLICAVEIS
CLAUSULA 31.1. - Regem a presente concessao, sem prejuizo das demais
normas integrantes do ordenamento juridico brasileiro, a Lei n 9.472 de 16 de
Julho de 1.997 e a regulamentacao dela decorrente, em especial a de competencia
do Poder Executivo, conforme disposto no art. 18 da referida Lei, prevalecendo
sempre estas no que colidir com aquelas.
CLAUSULA 31.2. - Na prestacao do servico ora concedido deverao ser
observadas as politicas nacionais de telecomunicacoes e regulamentacao da
ANATEL, como parte integrante deste Contrato, em especial os documentos
relacionados a seguir:
I - Plano Geral de Outorgas;
II - Plano Geral de Metas de Universalizacao;
III - Plano Geral de Metas de Qualidade;
IV - Regulamento Geral dos Servicos de Telecomunicacoes;
V - Regulamento do Servico Telefonico Fixo Comutado;
VI - Regulamento Geral de Interconexao;
VII- Regulamento de Numeracao para o Servico Telefonico Fixo
Comutado;
VIII Regulamento da Administracao da Numeracao; e
IX - Regulamento sobre Remuneracao pelo Uso das Redes das
Prestadoras do STFC.
CLAUSULA 31.3. Na interpretacao das normas e disposicoes constantes do
presente Contrato deverao ser levadas em conta, alem dos documentos referidos no
item anterior, as regras gerais de hermeneutica e as normas e principios
contidos na Lei n 9.472/97.
CAPITULO XXXII - DO FORO
CLAUSULA 32.1. - Para solucao de questoes decorrentes do presente
Contrato que nao puderem ser resolvidas atraves do procedimento de solucao de
divergencias constante do Capitulo XXX - Da Arbitragem, sera
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competente o Foro da Secao Judiciaria da Justica Federal de Brasilia, Distrito
Federal.
CAPITULO XXXIII - DAS DISPOSICOES FINAIS E GERAIS
CLAUSULA 33.1. - O Contrato ora assinado entrara em vigencia quando da
publicacao do seu extrato no Diario Oficial da Uniao.
PARAGRAFO UNICO - A Concessionaria tera prazo de 6 (seis) meses
contados da edicao da regulamentacao referida na clausula 31.2, a qual devera
estar totalmente editada ate 31 de dezembro de 1998, quando passara a ser
exigido integralmente o cumprimento das obrigacoes constantes deste Contrato.
E por assim estarem de pleno acordo com as disposicoes e condicoes do presente
Contrato, as partes o assinam em 03 (tres) vias de igual teor e forma, na
presenca das testemunhas, que tambem o assinam, para que se produzam seus legais
e juridicos efeitos.
Brasilia, 26 de maio de 1998.
Pela ANATEL:
__________________________
__________________________
Pela Concessionaria:
__________________________
__________________________
Testemunhas:
__________________________
Nome:
RG:
__________________________
Nome:
RG:
<PAGE>
51
ANEXO N 01
QUALIFICACAO DOS BENS REVERSIVEIS DA PRESTACAO DO
SERVICO TELEFONICO FIXO COMUTADO LONGA DISTANCIA NACIONAL
a) Infra-estrutura e equipamentos de comutacao, transmissao incluindo
terminais de uso publico;
b) Infra-estrutura e equipamentos de rede externa;
c) Infra-estrutura de equipamentos de energia e ar condicionado;
d) Infra-estrutura e equipamentos de centros de atendimento e de prestacao de
servico;
e) Infra-estrutura e equipamentos de sistemas de suporte a operacao;
f) Outros indispensaveis a prestacao do servico.
<PAGE>
52
ANEXO N 02
PLANO BASICO DO SERVICO DE LONGA DISTANCIA NACIONAL
1 GENERALIDADES
1.1 O Plano Basico do Servico de Longa Distancia Nacional e regido pelas
Portarias citadas neste anexo, demais regulamentacoes vigentes e por outras que
venham a sucede-las.
1.2 As tarifas apresentadas sao maximas, liquidas de impostos e contribuicoes
sociais.
2 UTILIZACAO DO SERVICO TELEFONICO FIXO COMUTADO LONGA DISTANCIA NACIONAL
2.1 O sistema de tarifacao para o Servico de Longa Distancia Nacional leva em
consideracao a distancia entre os centros de areas tarifarias das localidades de
origem e destino da chamada, seu tempo de duracao, o tipo de chamada realizada e
o horario de realizacao da mesma.
2.2 As localidades centros de area de tarifacao sao aprovadas pela Portaria
n195, de 30.03.94, do Ministro de Estado das Comunicacoes.
2.3 A unidade de tarifacao e o decimo de minuto (seis segundos), em conformidade
com a Portaria n219, de 03.04.97, do Ministro de Estado das Comunicacoes.
2.4 A tarifacao minima e de um minuto para as chamadas automaticas, terminal a
terminal, e de 3 minutos para as chamadas manuais, conforme estabelece a Norma
n 003/81, republicada pela Portaria n 297, de 29.11.95, do Ministro de Estado
das Comunicacoes.
2.5 O valor da Tarifa Basica (TB) deste servico, conforme estabelece a Portaria
n 226, de 03.04.97, do Ministro de Estado das Comunicacoes, e de R$ 0,18
(dezoito centavos de real), que corresponde a um minuto no horario normal para o
degrau de maior distancia geodesica da Matriz de Degraus Tarifarios.
2.6 As tarifas do minuto estarao limitadas aos valores estabelecidos no quadro
abaixo, em funcao da distancia entre os centros de area de tarifacao e o horario
da chamada:
<TABLE>
<CAPTION>
Degrau Distancia Geodesica Multiplicador Horario Horario Horario
Horario Normal Reduzido Super-Reduzido R$
Diferenciado R$ R$
R$
- -----------------------------------------------------------------------------------------------------------------------
(2xHN) (1xHN) (0,50xHN) (0,25xHN)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
DC 0,128 0,04608 0,02304 0,01152 0,00576
Conurbado
- -----------------------------------------------------------------------------------------------------------------------
D1 - ate 50 Km 0,300 0,10800 0,05400 0,02700 0,01350
- -----------------------------------------------------------------------------------------------------------------------
D2 >50 ate 100 Km 0,500 0,18000 0,09000 0,04500 0,02250
- -----------------------------------------------------------------------------------------------------------------------
D3 >100 ate 300 Km 0,750 0,27000 0,13500 0,06750 0,03375
- -----------------------------------------------------------------------------------------------------------------------
D4 >300 Km 1,000 0,36000 0,18000 0,09000 0,04500
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
53
2.7 A modulacao horaria e a estabelecida pela Norma n 003/81, reeditada pela
Portaria n 297, de 29.11.95, conforme quadro abaixo:
<TABLE>
<CAPTION>
Horario 2 a 6 Sabados Domingos e Feriados
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
de 0:00h a 6:00h super-reduzido super-reduzido super-reduzido
- -----------------------------------------------------------------------------------------------------------------
de 6:00h a 7:00h reduzido reduzido reduzido
- -----------------------------------------------------------------------------------------------------------------
de 7:00h a 9:00h normal normal reduzido
- -----------------------------------------------------------------------------------------------------------------
de 9:00h a 12:00h diferenciado normal reduzido
- -----------------------------------------------------------------------------------------------------------------
de 12:00h a 14:00h normal normal reduzido
- -----------------------------------------------------------------------------------------------------------------
de 14:00h a 18:00h diferenciado reduzido reduzido
de 18:00h a 21:00h normal reduzido reduzido
- -----------------------------------------------------------------------------------------------------------------
de 21:00h a 24:00h reduzido reduzido reduzido
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
2.8 Nao sera permitida a cobranca de qualquer acrescimo sobre os valores acima
definidos, independentemente da duracao da chamada.
2.9 As chamadas manuais serao tarifadas obedecendo os criterios estabelecidos na
Norma n 003/81, reeditada pela Portaria n 297, de 29.11.95.
3 CHAMADAS DESTINADAS AO SERVICO MOVEL CELULAR
3.1 Os criterios e procedimentos de tarifacao de chamadas para o Servico Movel
Celular sao os regulamentados pela Norma n 23/96, aprovada pela Portaria n
1536, de 04.11.96, do Ministro de Estado das Comunicacoes.
3.2 A unidade de tarifacao e o decimo de minuto (seis segundos).
3.3 A tarifacao minima e de 30 (trinta) segundos.
3.4 A Portaria n 2503, de 20.12.96, do Ministro de Estado das Comunicacoes,
fixou os valores maximos das tarifas, por minuto, conforme tabela abaixo:
TARIFA NORMAL TARIFA REDUZIDA
- -----------------------------------------------------------------------------
VC-2 VC-3 VC-2 VC-3
- -----------------------------------------------------------------------------
0,58000 0,66000 0,40600 0,46200
- -----------------------------------------------------------------------------
3.5 O horario de tarifa reduzida para as chamadas destinadas ao Servico Movel
Celular sera de Segunda a Sabado de 0:00h as 7:00h e das 21:00h as 24:00h e aos
Domingos e Feriados, de 0:00h as 24:00h, conforme disposto na Norma n 23/96,
aprovada pela Portaria n
1536, de 04.11.96, do Ministro de Estado das
Comunicacoes.
<PAGE>
SCHEDULE IDENTIFYING OMITTED CONCESSION AGREEMENTS AND SEFFLNG FORTH THE
MATERIAL DETAILS IN WHICH SUCH AGREEMENTS DIFFER FROM THE STANDARD
CONCESSION AGREEMENT FILED AS
EXHIBIT 10.3
1. Agreement: Concession Agreement between Agencia Nacional de Telecomunicacoes
("ANATEL") and Telecomunicacoes do Acre S.A. - Telacre.
Material Differences:
(a) Name of concessionaire (see pages 1 and 46): Telecomunicacoes do Acre
S.A. Telacre.
(b) Geographical area of service (see page 2): 28
2. Agreement: Concession Agreement between ANATEL and Telecomunicacoes de
Rondonia S.A. -Teleron.
Material Differences:
(a) Name of concessionaire (see pages 1 and 46): Telecomunicacoes de
Rondonia S.A. Teleron.
(b) Geographical area of service (see page 2): 27
3. Agreement: Concession Agreement between ANATEL and Telecomunicacoes de Goias
S.A. -Telegoias.
Material Differences:
(a) Name of concessionaire (see pages 1 and 46): Telecomunicacoes de
Goias S.A. Telegoias.
(b) Geographical area of service (see page 2): 24
4. Agreement: Concession Agreement between ANATEL and Telecomunicacoes de
Brasilia S.A. -Telebrasilia.
Material Differences:
(a) Name of concessionaire (see pages 1 and 46): Telecomunicacoes de
Brasilia S.A. -. Telebrasilia
(b) Geographical area of service (see page 2): 26
5. Agreement: Concession Agreement between ANATEL and Telecomunicacoes do Mato
Grosso S.A. - Telemat.
Material Differences:
(a) Name of concessionaire (see pages 1 and 46): Telecomunicacoes do Mato
Grosso S.A. - Telemat.
(b) Geographical area of service (see page 2): 23
6. Agreement: Concession Agreement between ANATEL and Telecomunicacoes do Mato
Grosso do Sul S.A. - Telems.
Material Differences:
(a) Name of concessionaire (see pages I and 46): Telecomunicacoes do Mato
Grosso do Sul S.A. - Telems.
(b) Geographical area of service (see page 2): 21
<PAGE>
7. Agreement: Concession Agreement between ANATEL and Telecomunicacoes do
Parana S.A. - Telepar.
Material Differences:
(a) Name of concessionaire (see pages 1 and 46): Telecomunicacoes do
Parana S.A. Telepar.
(b) Geographical area of service (see page 2): 19
8. Agreement: Concession Agreement between ANATEL and Telecomunicacoes de Santa
Catarina S.A. - Telesc.
Material Differences:
(a) Name of concessionaire (see pages 1 and 46): Telecomunicacoes de
Santa Catarina S.A. - Telesc.
(b) Geographical area of service (see page 2): 18
9. Agreement: Concession Agreement between ANATEL and Companhia Telefonica
Melhoramento e Resistencia - CTMR.
Material Differences:
(a) Name of concessionaire (see pages 1 and 47): Companhia Telefonica
Melhoramento e Resistencia- CTMR.
(b) Geographical area of service (see page 2): 30
2
<PAGE>
EXHIBIT 10.4
STANDARD CONCESSION AGREEMENT
FOR DOMESTIC LONG-DISTANCE
SWITCHED, FIXED-LINE TELEPHONE SERVICE
(BRAZILIAN TELECOMMUNICATIONS COMPANIES, WITH THE EXCEPTION OF EMBRATEL)
The National Telecommunications Agency ANATEL (Agencia Nacional de
Telecomunicacoes), hereinafter referred to as ANATEL, a Brazilian federal
agency, responsible for granting concessions as provided in Federal Law No.
9,472 of July 16, 1997, the General Telecommunications Law GTL, represented
herein by its President, Renato Navarro Guerreiro, [identification], and its
Counsellor **** [identification], acting in accordance with Resolution No. ****
of its Board of Directors, on the one hand, and [name and identification of the
concessionaire], represented by its authorized representative, hereinafter
referred to as the Concessionaire, hereby enter into this Concession Agreement
as provided in Art. 207 of the above-mentioned General Telecommunications Law,
which shall be governed by the legal provisions referred to above and the
following provisions:
CHAPTER I - PURPOSE
CLAUSE 1.1. - The subject matter of this Agreement is the concession
of public Domestic Long-Distance Switched Fixed-line Telephone Service in the
geographic area defined in clause 2.1, as provided in the General Concession
Plan.
SOLE PARAGRAPH - This concession includes public Switched Fixed-line
Telephone Service in border or frontier areas as provided by regulations issued
by ANATEL as provided in the General Concession Plan.
CLAUSE 1.2. - Switched Fixed-line Telephone Service is the
telecommunications service which, through the transmission of voice and other
signals, is used for communications between fixed and determined points, using
processes of telephony.
CLAUSE 1.3. - With the prior approval of ANATEL, the Concessionaire
may establish and carry out useful or convenient activities related to providing
the service which is the subject matter of this concession.
SOLE PARAGRAPH - Services and useful or convenient activities shall be
considered to be related to the subject matter of this Concession if, in the
view of ANATEL, they may be considered an inherent part of the platform for the
service granted hereby, and not a new type of service, as provided by
regulation.
CLAUSE 1.4. - The Concessionaire is entitled to establish, expand and
operate the trunk lines, networks and switching centers required to implement
the Concession and operate it as a business, as provided by regulation.
1
<PAGE>
CLAUSE 1.5. - The provision of the service granted hereby may not be
separated from the obligations to fulfill the universal service and quality
objectives provided for in this Agreement.
CLAUSE 1.6. - The Concessionaire must provide to all applicants and
customers the installations that are necessary for the supply of the service
granted hereby, as provided by regulation.
CLAUSE 1.7. - The Concessionaire must provide free access to emergency
services, as provided by regulation.
CHAPTER II - SERVICE AREA
CLAUSE 2.1. - The geographical area of the service which is the
subject matter of this concession is the territory in the Sector number(s) ***
set forth in Annex 3 to the General Concession Plan.
CHAPTER III - TERM OF THE AGREEMENT AND CONDITIONS FOR EXTENSIONS
CLAUSE 3.1. - This concession, which is granted without charge, shall
expire on December 31, 2005, with a guaranteed one-time extension of twenty
years, as provided in clauses 3.2, 3.3 and 3.4.
CLAUSE 3.2. - This concession shall be extended once, at the request
of the Concessionaire, for 20 (twenty) years, in return for consideration,
provided the Concessionaire complies with the terms set forth in this Agreement,
and the new Agreement may include new conditions and establish new universal
service and quality objectives, in light of the conditions prevailing at the
time of the extension, and establish, in the case of universal service
objectives, supplementary resources, as provided in Art. 81 of Law No. 9,472 of
1997.
(S) 1 - Thirty six (36) months before the expiration date provided in
clause 3.1, ANATEL shall make available for public comment its proposals for new
conditions and new quality and universal service objectives, which shall be
submitted to the President of the Republic for approval by Decree, as provided
in Art. 18, paragraph III of Law No. 9,472 of 1997.
(S) 2 - In order to obtain the extension provided for by this clause,
the Concessionaire must indicate its interest the at least 30 (thirty) months
before the expiration date provided in clause 3.1.
CLAUSE 3.3. - In order to extend this concession as provided in the
preceding clause, the Concessionaire shall pay a fee every two years during the
extension period corresponding to 2% (two percent) of its revenue for the year
prior to the payment, net of income taxes and payroll taxes, derived from
Switched Fixed-line Telephone Service.
2
<PAGE>
(S) 1 - The amount referred to in the preceding paragraph shall be
calculated on the basis of the net revenue generated through the execution of
the service plans, both basic and supplemental, which are the subject matter of
this concession.
(S) 2 - The percentage referred to in the first paragraph of this
clause shall always be calculated on the basis of revenue, net of income tax and
payroll tax deductions, generated between January and December of the previous
year as shown in the financial statements prepared in accordance with corporate
law and basic accounting principles, approved by the management of the
Concessionaire and audited by independent auditors, and payment shall be due on
April 30 of the year following the year for which the fee was determined.
(S) 3 - The first fee payment shall be due on April 30, 2007,
calculated on the basis of net revenue from January 1 and December 31, 2006, and
subsequent payments shall be due every 24 (twenty four) months, calculated on
the basis of revenue from the preceding year.
(S) 4 - Late payment of the fee provided for in this clause shall be
subject to a fine of 0.33% (zero point thirty three percent) per day, up to a
maximum of 10% (ten percent), plus the SELIC reference rate for federal
securities, to be levied upon the amount owed based on the number of days it is
past due.
CLAUSE 3.4. - The extension of the duration of this Agreement shall
entail the extension of the right to use those radio frequencies referred to in
clause 4.1 which are required to continue providing the service which is the
subject matter of this concession.
SOLE PARAGRAPH - The return of radio frequencies to ANATEL that are
not required to continue providing services shall not change the amount of the
extension fee as determined in clause 3.3.
CHAPTER IV - MANNER, FORM AND TERMS OF SERVICE
CLAUSE 4.1. The use of radio frequencies to provide the service which
is the subject matter of this concession shall be authorized by ANATEL, in
exchange for payment and without exclusive rights, unless otherwise stated in
the regulations, in accordance with the provisions of Articles 83 and 163 of Law
No. 9,472 of 1997.
(S) 1 - The Concessionaire shall have the nonexclusive right to use
the radio frequencies authorized prior to the signing of this Agreement, which
shall not be contingent upon the payment of any fee, with the exception of audit
fees, in accordance with the terms set forth in the respective station operation
licenses.
(S) 2 - The right to use the radio frequencies referred to in this
clause does not preclude the prerogative granted to ANATEL by Art. 161 of Law
No. 9,472 of 1997.
(S) 3 - The use of new radio frequencies that may be required by the
Concessionaire shall be authorized in exchange for payment, in observance of the
procedures defined by ANATEL for such authorizations.
3
<PAGE>
(S) 4 - The use of the radio frequencies required under the terms of
the preceding paragraph shall be authorized for the same amount of time as this
Concession, and any extension of their use must be made in exchange for payment,
independently of the fee payment referred to in clause 3.3 herein.
CLAUSE 4.2. - The Concessionaire agrees to provide the service which
is the subject matter of the concession in such a way as to comply fully with
the applicable universal service and continuity requirements inherent to the
provision of a public service, in accordance with the criteria, formulas and
parameters set forth in this Agreement.
SOLE PARAGRAPH - Failure to comply with the obligations pertaining to
the universalization and continuity of service shall result in the application
of the penalties provided for in this Agreement, entitle ANATEL to issue an
intervention decree and, depending upon the circumstances and seriousness of the
situation, or in the event that issuing an intervention decree is unsuitable,
ineffective, unfairly benefits the Concessionaire or useless, lead to the
forfeiture of the concession, as set forth in clause 26.4.
CLAUSE 4.3. - The Concessionaire shall operate the service which is
the subject matter of the concession on its own behalf and at its own risk,
under the system of full and fair competition established by Law No. 9,472 of
1997, and by the General Concession Plan, and shall be remunerated by the rates
charged and any additional or incidental revenue it receives under the terms of
this Agreement.
SOLE PARAGRAPH - The Concessionaire shall not be entitled to any type
of exclusive right, nor shall it claim any rights as to the admission of new
providers of the same service, whether in the public or private sector.
CLAUSE 4.4. - Throughout the duration of the concession, the
Concessionaire agrees to maintain its commitments to quality, availability and
supply of the service granted hereby, as stated in this Agreement, regardless of
the competitive environment in the geographic area where it operates the
service.
CLAUSE 4.5. - The Concessionaire agrees to conserve and maintain in
perfect operating condition all of the goods, equipment and facilities used to
provide the service granted hereby; to maintain and repair them; and to promote,
when appropriate, their replacement when required, either due to wear and tear
or to technological obsolescence; and to promote the repairs and modernizations
required to provide and maintain proper service, as set forth in this Agreement.
CHAPTER V - RULES FOR THE ESTABLISHMENT, EXPANSION, MODIFICATION AND
MODERNIZATION OF SERVICE
CLAUSE 5.1. - The expansion and modernization of the service granted
hereby, while observing the goals and criteria set forth in this Agreement, are
fundamental tenets of this concession.
4
<PAGE>
SOLE PARAGRAPH - ANATEL may modify the objectives regarding the
establishment, expansion and modernization of the service granted hereby,
provided it respects the right of the Concessionaire to not be forced to sustain
additional expenses which cannot be recovered through the revenue resulting from
compliance with such objectives and through the efficient operation of the
service.
CLAUSE 5.2. - Changes to the terms under which the service granted
hereby is provided may only be decided by ANATEL, or with its prior express
approval.
CLAUSE 5.3. - Modernization of the service granted hereby shall be
sought by the continual introduction of equipment, processes and means capable
of providing users with service compatible with the current technologies
available in the market.
CHAPTER VI - CRITERIA AND INDICATORS OF QUALITY AND CONTINUOUS SERVICE
CLAUSE 6.1. - A fundamental tenet of this Concession is the provision
of adequate quality service by the Concessionaire, meaning service which is
satisfactory in terms of consistency, efficiency, security, contemporaneity,
universal availability, courtesy and reasonable rates.
(S) 1 - Consistency is characterized by the continuous provision of
the service granted hereby, in strict observance of the standards laid down by
ANATEL.
(S) 2 - Efficiency is characterized by the application and
preservation of the parameters set forth in this Agreement, and by the service
granted hereby provided to users within the timeframes provided for in this
Agreement.
(S) 3 - Security is characterized by the confidentiality of data
regarding use of the service granted hereby by users, as well as the complete
safeguarding of all information communicated within the ambit of providing such
service, in accordance with Chapter XIV.
(S) 4 - Contemporaneity is characterized by the up-to-date nature of
the equipment, facilities and techniques used to provide the service granted
hereby, achieved by incorporating technological advances, which clearly benefit
users, occurring during the term of the concession, in keeping with the
provisions of this Agreement.
(S) 5 - Universal availability is characterized by the provision of
the service granted hereby to each and every user without discrimination,
whereby the Concessionaire commits itself to provide the service to whomever
requests it, at the location indicated by the latter, under the terms of this
Agreement and as provided by regulation.
(S) 6 - Courtesy is characterized by respectful and immediate
assistance given to all users of the service granted hereby, as well as by full
compliance with the obligation to inform and assist promptly and politely all
those who, regardless of whether they are users, request information or
arrangements, or make any other type of request, under the terms set forth in
this Agreement.
5
<PAGE>
(S) 7 - The principle of reasonable rates is characterized by the
Concessionaire's efforts to charge rates lower than the maximum rates determined
by ANATEL.
CLAUSE 6.2. - The Concessionaire must comply with the parameters and
indicators of the General Plan on Quality.
SOLE PARAGRAPH - The Concessionaire must annually release a chart
demonstrating the objectives and parameters, established and realized, of the
General Plan on Quality and the General Plan on Universal Service,
notwithstanding the requirement to supply this data whenever ANATEL so requests.
CLAUSE 6.3. - The continuity of the service granted hereby, an
essential element of the system under which it is provided, is characterized by
the provision of service without interruption, while taking into account
suspension of service due to default on the part of the user under the terms set
forth in clause 8.3 of this Agreement and Art. 3, paragraph VII of Law No. 9,472
of 1997.
SOLE PARAGRAPH - Consistency shall not be considered to have been
violated in the event the service granted hereby is interrupted because of an
emergency situation, technical problems or circumstances involving the security
of installations. The affected users are to be notified and, when appropriate,
explanatory notification is to be given to ANATEL.
CLAUSE 6.4. - The Concessionaire may not, under any circumstances,
interrupt the service granted hereby on the allegation that ANATEL or the
federal government have not complied with any obligation, and the Concessionaire
may not invoke any exception arising from breach of contract.
CLAUSE 6.5. - In addition to managing and monitoring quality
indicators, ANATEL shall periodically evaluate the degree of customer
satisfaction with the service granted hereby, and may release the following
results concerning the Concessionaire:
I - Customer service, especially with regard to availability,
promptness, politeness, speed and effectiveness in responding to
requests and complaints;
II - Rates charged and discounts offered;
III - Technical quality of the service provided; and
IV - Adequacy of the services offered in relation to users' needs.
CHAPTER VII - UNIVERSAL SERVICE OBJECTIVES
CLAUSE 7.1. - Universal service is an essential aspect of the system
under which the service granted hereby is provided. It is characterized by the
provision of uniform and nondiscriminatory assistance to all users, and by the
Concessionaire's achievement of the objectives set forth in the General Plan on
Universal Service, approved by Executive authority,
6
<PAGE>
under the terms of Article 18, paragraph III and Article 80 of Law No. 9,472 of
1997, and those of Annex 2 of this Agreement.
CLAUSE 7.2. - With the exception of clause 7.4 of this Agreement and
in keeping with the General Plan on Universal Service, approved by Executive
Authority under the terms of Article 18, paragraph III and Article 80 of Law No.
9,472 of 1997, the implementation of the universal service objectives provided
for in this Agreement shall be financed exclusively through the operation of the
service by the Concessionaire, which shall not be entitled to any compensation
or subsidy.
CLAUSE 7.3. - The Concessionaire agrees to implement those universal
service objectives which are not provided for in this Agreement, but which may
be required by ANATEL, in compliance with the provisions of (S) 2, Art. 2 of
the General Plan on Universal Service, approved by Decree No. 2,592 of May 15,
1998, and the following procedure shall be observed when defining compensation
amounts and criteria:
I - ANATEL shall consult the Concessionaire regarding the total cost
of implementing the planned additional objectives, the extent to which
they cannot be amortized by operating revenue, and by which specific
payments they are covered. The objectives to be achieved, the
technologies selected, and the location and timeframe of
implementation are to be specifically indicated;
II - Should the stated timeframe for consultation lapse without a
response by the Concessionaire, ANATEL shall take the necessary steps
in order to determine the charges and expenses involved in
implementing the additional objectives, and estimate the corresponding
revenue generated;
III - Should the Concessionaire issue a response following
consultation, ANATEL shall determine whether the expenses and
estimated revenue presented are adequate and reasonable, taking into
account available technologies, the cost of materials and labor, the
geographical, social and economic characteristics of the market demand
to be met, market prices, and other variables it considers relevant;
IV - In the event ANATEL does not consider the proposed expenses
and/or estimated revenue to be reasonable, it may, with justification,
make the Concessionaire responsible for implementing the additional
objectives, and determine the amount of compensation, in accordance
with the provisions of Chapter XXX; and
V - Should ANATEL consider the amount of compensation to be adequate
and reasonable, it shall confirm to the Concessionaire that the latter
is charged with implementing such additional objectives, under the
terms of the compensation proposal issued by the Concessionaire.
(S) 1 - Upon following the procedure set forth in this clause, should
ANATEL consider the implementation of the specific universal service objective
by the Concessionaire
7
<PAGE>
to be unsuitable or unfeasible, it shall contract such undertaking out to
another party, which it may do by granting specific and defined parts of the
service, in accordance with the economic parameters derived from the procedures
provided for in this clause.
(S) 2 - At the discretion of ANATEL, the procedure provided for in
this clause may also be used to determine the amounts to be compensated
utilizing the resources of the Fund for Universal Telecommunications Services,
when it fulfills the objectives set forth in the General Plan on Universal
Service, approved by Executive authority, under the terms of Article 18,
paragraph III and Article 80 of Law No. 9,472 of 1997.
(S) 3 - The use of resources of the Fund for Universal
Telecommunications Services, pursuant to the preceding paragraph, excludes the
utilization of the benefits provided for in (S) 2, Article 10 of the General
Concession Plan, except in the case of compensation to ANATEL for amounts it has
used from said Fund, in addition to the compensation owed.
CLAUSE 7.4. - The adoption of the procedures provided for in the
preceding clause is the prerogative of ANATEL, which may adopt them at its
discretion and in keeping with the best interests of the public, and the
Concessionaire shall not have the right to choose how it prefers to implement
the aforementioned universal service objectives.
CHAPTER VIII - RULES GOVERNING THE SUSPENSION OF SERVICE DUE TO NONCOMPLIANCE,
OR AT THE REQUEST OF THE USER
CLAUSE 8.1. - Subscribers of the service which is the subject matter
of this concession may request, at any time, the suspension of such service, and
the Concessionaire must respond to their request within the timeframe to be
established by ANATEL, which shall be no greater than 48 (forty eight) hours,
unless postponed by the subscriber.
SOLE PARAGRAPH - The Concessionaire may not demand payment for the
suspension of service referred to above.
CLAUSE 8.2. - Subscribers in compliance with their contract with the
Concessionaire may request the suspension of their service, as provided by
regulation.
CLAUSE 8.3. - The Concessionaire may only proceed to suspend the
service of a subscriber who is at least 30 (thirty) days in default of payment,
such debt resulting directly from the use of the service granted hereby, and in
compliance with the procedures set forth by regulation published by ANATEL.
Subscribers must be allowed time to challenge the amounts claimed from them.
(S) 1 - The Concessionaire must give subscribers at least 15
(fifteen) days' notice prior to suspension of service.
(S) 2 - Failure to pay amounts outstanding that are not directly
related to the service which is the subject matter of this concession, in
accordance with the sole paragraph of clause 10.6, shall not be cause for the
cancellation of service provided for in this clause.
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CLAUSE 8.4 - The Concessionaire shall also guarantee subscribers the
right to block access temporarily or permanently to available conveniences or
features, as well as to premium services, provided they so request, as provided
by regulation.
CLAUSE 8.5 - In the event the default of the subscriber exclusively
involves the nonpayment of services supplied by a provider of Switched, Fixed-
line Telephone Service other than the service conceded herein, and which is
billed jointly with the Concessionaire's services, the disconnection must follow
the specific procedure laid down in regulation by ANATEL.
CHAPTER IX - NUMBERING PLAN
CLAUSE 9.1. - As provided by regulation, the Concessionaire agrees to
obey the Numbering Regulations for Switched, Fixed-line Telephone Service
published by ANATEL, and must guarantee subscribers portability of access codes
within the timeframe defined in such Regulations.
(S) 1 - The Concessionaire shall assume all expenses required to
conform to the Numbering Regulations referred to above.
(S) 2 - The expenses pertaining to the investments required in order
to enable portability of access codes shall be shared by the Concessionaire and
the other providers of telecommunications services, whether in the public or
private sector.
(S) 3 - The expenses pertaining to the administration of the process
of assigning and holding access codes pursuant to the Numbering Regulations
shall be borne by the Concessionaire, under the terms of the Numbering
Administration Regulations.
CHAPTER X - RATE AND PAYMENT STRUCTURE
CLAUSE 10.1. - The Concessionaire is required to offer all users the
Basic Domestic Long-Distance Service Plan, as provided in Annex 2, which is an
integral part of this Agreement.
SOLE PARAGRAPH - The Basic Domestic Long-Distance Service Plan shall
be the sole plan for the entire area referred to in clause 2.1 and must state,
under the terms set forth by ANATEL, maximum amounts for each item of the rate
structure defined for the provision of Switched, Fixed-line Telephone Service.
Said amounts shall be revised and adjusted, in accordance with applicable
standards.
CLAUSE 10.2. - The Concessionaire may offer its subscribers
Supplemental Domestic Long-Distance Service Plans with rate criteria different
from those in the Basic Domestic Long-Distance Service Plan.
(S) 1 - Subscribers shall be guaranteed the right to switch between
the various Domestic Long-Distance Service Plans offered by the Concessionaire,
as provided by regulation.
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<PAGE>
(S) 2 - The Concessionaire is free to propose the rate structure for
the Supplemental Domestic Long-Distance Service Plans, provided it complies with
clause 10.1 of this Agreement.
(S) 3 - The Concessionaire is required to offer its Supplemental
Domestic Long-Distance Service Plans, approved by ANATEL, to users in a
nondiscriminatory manner.
(S) 4 - Supplemental Domestic Long-Distance Service Plans must be
authorized by ANATEL before being offered to the general public.
(S) 5 - ANATEL must decide whether to approve Supplemental Domestic
Long-Distance Service Plans within 15 (fifteen) days of their having been
submitted, and they shall be considered to have been approved if ANATEL makes no
decision within this timeframe.
CLAUSE 10.3. - The Concessionaire may offer discounts on the rates for
Domestic Long-Distance Service Plans provided it does so in an egalitarian and
nondiscriminatory manner. The Concessionaire shall not reduce amounts
subjectively and must observe the principles of fair competition.
SOLE PARAGRAPH - The Concessionaire agrees to give its users ample and
prior notice of discounted rates for the service, and to communicate its notice
of discounted rates to ANATEL within 7 (seven) days after the rate reduction
takes effect.
CLAUSE 10.4. - The Concessionaire agrees to publicize the rates
charged for the service which is the subject matter of the concession, in the
manner required by ANATEL.
CLAUSE 10.5. - When new services, conveniences or features are
introduced in relation to the service granted hereby, the Concessionaire shall
submit its proposed rates to ANATEL for approval, without which no rate or price
may be charged.
CLAUSE 10.6. - Billing documents issued by the Concessionaire must be
presented in a detailed, clear, explanatory and self-evident manner, and must
distinguish the type and quantity of each service provided to the user, as
provided by regulation.
SOLE PARAGRAPH - The Concessionaire may list the amounts owed by the
subscriber within the billing document for premium services, as well as for
other conveniences or features related to the service granted hereby, provided
it does so in a clear and explicit manner.
CLAUSE 10.7. - The Concessionaire shall collect network usage fees
from other providers of telecommunications services, in keeping with the
standards published by ANATEL.
CLAUSE 10.8 - The Concessionaire shall offer a discount to those
subscribers affected by any discontinuance of the service granted hereby,
provided the subscriber was not the cause of discontinuance, and the discount
shall be prorated for the period during which the interruption occurred, as
provided by regulation.
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<PAGE>
CHAPTER XI - RATE ADJUSTMENTS
CLAUSE 11.1. - The rates listed in the Basic Domestic Long-Distance
Service Plan Annex 2, may be adjusted by applying the formula below. This may
be done no more than once every 12 (twelve) months, at the initiative of ANATEL
or the Concessionaire, in keeping with the rules of economic legislation in
force.
5 24 Mij\\to\\ 5 24
(SIGMA SIGMA Rij\\t\\ X ---------) less than or equal to (1-k) Ft SIGMA SIGMA
i=1 j=1 TM i=1 j=1
Mij\\to\\
Rij\\to\\ X ---------
TM
Let:
GPI-DA\\t\\
Rij\\t\\ less than or equal to Rij\\to\\ X 1.05 X -------------
GPI-DA\\to\\
Where:
Rij\\t\\ - proposed rate for the Basic Domestic Long-Distance Service Plan
during the j period at the rate for distance i, net of taxes.
Rij\\to\\ - current rate for the Basic Domestic Long-Distance Service Plan
during the j period at the rate for distance i, net of taxes.
Mij\\to\\ - minutes of domestic long-distance service through the Basic Domestic
Long-Distance Service Plan, during the j period at distance i, since the last
rate adjustment or, in the case of the first adjustment, since April 1, 1998.
TM - total minutes of domestic long-distance service through the Basic Domestic
Long-Distance Service Plan since the last rate adjustment or, in the case of the
first adjustment, since April 1, 1998.
i = distance rate for domestic long-distance service indicated in the Rate
Structure.
j = billing period for domestic long-distance service indicated in the Rate
Structure.
\\t\\ = proposed date of adjustment.
\\to\\ = date of the last adjustment or, in the case of the first adjustment,
April 1, 1998 .
and
GPI-DA\\t\\
F\\t\\ = -------------
GPI-DA\\to\\
Where:
GPI-DA = General Price Index, Domestic Availability, issued by the Getulio
Vargas Foundation, or its successor index.
k = transfer factor.
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<PAGE>
(S) 1 - The transfer factor shall be applied during the duration of
the concession in the following manner:
I - Until December 31, 2000 it shall be equal to 0.02 (zero point zero
two); and
II - From January 1, 2001 until December 31, 2003, it shall be equal
to 0.04 (zero point zero four).
III - From January 1, 2004 to December 31, 2005, it shall be equal to
0.05 (zero point zero five).
(S) 2 - In the event the adjustment period includes different transfer
factor values, a weighted average must be calculated thereof taking into account
the months during which each transfer factor value occurred.
(S) 3 - In the event an adjustment takes place after more than twelve
months have gone by, the formula including the transfer factor must be applied
progressively, taking into account twelve-month periods, and then any remaining
months.
(S) 4 - After 2005, new transfer factor values may be determined by
ANATEL in the event this Agreement is extended, depending upon the conditions
which exist at that time.
CLAUSE 11.2. - Network usage fees shall be adjusted by applying the
following formulas:
5 24 Mij\\to\\ 5
(SIGMA SIGMA TU-RIUij\\t\\ X ---------) less than or equal to (1-k) Ft SIGMA
i=1 j=1 TM i=1
24 Mij\\to\\
SIGMA TU-RIUij\\to\\ X ---------
j=1 TM
Let:
GPI-DA\\t\\
TU-RIUij\\t\\ less than or equal to TU-RIUij\\to\\ X 1.05 X -------------
GPI-DA\\to\\
Where:
TU-RIUij\\t\\ - proposed rate for use of the long-distance network during the j
period for distance i, net of taxes.
TU-RIUij\\to\\ - current rate for use of the long-distance network during the j
period for distance i, net of taxes.
Mj\\to\\ - Minutes of use of the long-distance network of the Concessionaire
during the j period for distance i, since the last rate adjustment or, in the
case of the first adjustment, since April 1, 1998.
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<PAGE>
TM - Total Minutes of use of the long-distance network of the Concessionaire
since the last rate adjustment or, in the case of the first adjustment, since
April 1, 1998.
\\t\\ = date of the proposed adjustment.
\\to\\ = date of the last adjustment or, in the case of the first adjustment,
April 1, 1998; and
GPI-DA\\t\\
F\\t\\ = --------------
GPI-DA\\to\\
Where:
GPI-DA = General Price Index, Domestic Availability, issued by the Getulio
Vargas Foundation, or its successor index.
k = transfer factor.
(S) 1 - The transfer factor shall be applied during the duration of
the concession in the following manner:
I - Until December 31, 2000 it shall be equal to 0.02 (zero point zero
two);
II - From January 1, 2001 until December 31, 2003, it shall be equal
to 0.04 (zero point zero four);
III - From January 1, 2004 until December 31, 2005, it shall be equal
to 0.05 (zero point zero five);
(S) 2 - In the event the adjustment period includes different transfer
factor values, a weighted average must be calculated thereof taking into account
the months during which each transfer factor value occurred.
(S) 3 - In the event an adjustment takes place after more than twelve
months have gone by, the formula including the transfer factor must be applied
progressively, taking into account twelve-month periods, and then any remaining
months.
(S) 4 - After 2005, new transfer factor values may be determined by
ANATEL in the event this Agreement is extended, depending upon the conditions
which exist at that time.
CHAPTER XII - SAFEGUARDING THE ECONOMIC WELLBEING OF THE CONCESSIONAIRE AND
REVISION OF RATES
CLAUSE 12.1. - Preserving a fair balance, under a fully competitive
system, between the service provided by the Concessionaire and its remuneration
is a basic tenet of this Agreement. It is forbidden for any party to unjustly
enrich itself at the expense of any other party or the users of the service,
under the terms set forth in this Chapter.
(S) 1 - The Concessionaire shall not be required to suffer any damages
resulting from this Agreement, unless they result from any of the following
factors:
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<PAGE>
I - From its negligence, ineptitude or oversight in operating the
service granted hereby;
II - From the normal risks of business activity;
III - From the inefficient management of its business, including the
payment of operating and administrative expenses which are
incompatible with the parameters demonstrated in the market; or
IV - From its failure to take advantage of existing opportunities in
the market, including expanding, extending and increasing the service
provided.
(S) 2 - The Concessionaire is prohibited from unjustly profiting from
any economic gain not resulting directly from its operational efficiency,
especially that which results from the issuance of new rules governing the
service granted hereby.
(S) 3 - The Concessionaire is entitled to restructure its initial
obligations and compensation scheme in the event that a force majeure or other
disaster significantly affects the operation of the service granted hereby.
However, the actions of private-sector service providers in such a situation
shall serve as the standard of reasonable conduct.
(S) 4 - When evaluating the appropriateness of the restructuring
addressed in the preceding paragraph, it shall be taken into account whether,
among other factors, the Insurance Plan provided for in clause 23.1 covers the
event which caused the initial economic situation to change.
CLAUSE 12.2. - The economic basis of the Agreement shall be re-
established when it can be demonstrated that none of the factors listed in (S) 1
of the previous clause have occurred. This shall preferably be accomplished by
the revision of rates, or through any other mechanism which, in the view of
ANATEL, is capable of correcting the situation.
(S) 1 - The revision of rates precludes any other mechanism used to
deter unjust enrichment by any party, which is displaced by the event to which
the rate revision refers.
(S) 2 - A single, complete and final measure shall be taken in order
to correct the event that gave rise to the distortion.
CLAUSE 12.3. - Independent of clause 12.1, revising the rates listed
in the Basic Domestic Long-Distance Service Plan in favor of the Concessionaire
or the users shall be called for, under the terms of Art. 108 of Law No. 9,472
of 1997, in the following specific situations:
I - Unilateral modification of this Agreement imposed by ANATEL,
involving significant upward or downward variations in expenses or
income, for instance, when the raising or lowering of rates is
required in order to prevent any of the parties from making
unjustified profits;
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<PAGE>
II - A change in tax law subsequent to the signing of this Agreement
which involves an increase or reduction in the potential profitability
of the Concessionaire;
III - Supervening events resulting from acts of governance or the
Administration which demonstrably affect the expenses of the
Concessionaire;
IV - Specific changes in legislation which have a direct impact upon
the income of the Concessionaire in such a way as to affect the
continuity or quality of the service provided;
V - Legislative changes which benefit the Concessionaire, including
those which grant or cancel exemptions, reductions, discounts or any
other tax or rate-related privileges, in keeping with the provisions
of (S) 3, Art. 108 of Law No. 9,472 of 1997.
(S) 1 - When reviewing rates, any damage or profit losses sustained by
the Concessionaire shall not be taken into account if they result from the free
operation of the service granted hereby under competitive conditions, or from
the inefficient management of its business.
(S) 2 - The revision scenario anticipated in paragraph II of this
clause shall not be applicable in the event the change in the tax law involves
the creation, elimination, increase or lowering of incidental taxes on the
Concessionaire's income or profits, and not involving and administrative or
operational tax.
(S) 3 - The rate revision scenarios anticipated by this clause shall
not apply if the events leading to the revision are already covered by the
Insurance Plan provided for in clause 23.1.
(S) 4 - The Concessionaire's contributions to the Fund for Universal
Telecommunications Services and to the Fund for the Development of
Telecommunications Technology shall not occasion the revision of rates.
CLAUSE 12.4. - Rate revisions shall not be applicable if the cause
motivating the Concessionaire's request can be neutralized through the efficient
operation of the service granted hereby, market expansion, or the generation of
alternative or supplementary revenue in associated with the subject matter of
this Agreement, in keeping with current competitive conditions.
SOLE PARAGRAPH - Reductions in revenue which result from discounts or
rate reductions shall not occasion the revision of rates.
CLAUSE 12.5. - The rate revision procedure may be initiated at the
request of the Concessionaire, or by a decision of ANATEL.
15
<PAGE>
(S) 1 - In the event the revision procedure is initiated by the
Concessionaire, the following requirements must be observed:
I - The request must be accompanied by a technical or expert report
demonstrating the precise impact of the occurrence upon the
determination of rates or the estimated revenue of the Concessionaire;
II - The request must be accompanied by all documents required to
substantiate the claim;
III - The Concessionaire must explain its claim for rate revision, and
report on the impact and possible rate-balancing alternatives;
IV - The Concessionaire shall bear all expenses for the research and
studies needed to fully back its claim.
(S) 2 - Rate-revision procedures initiated by ANATEL must be
communicated to the Concessionaire, allowing it time to respond, and shall be
accompanied by copies of the reports and studies carried out in order define the
circumstances occasioning the revision.
(S) 3 - The rate-revision procedure shall be concluded within 120 (one
hundred twenty) days, unless it becomes necessary to extend it in order to
conclude the proceedings.
(S) 4 - The request must be approved by ANATEL, and the Concessionaire
must fully divulge the new maximum amounts of the revised rates, under the terms
stated in this Agreement.
CHAPTER XIII - ALTERNATIVE, SUPPLEMENTARY AND ANCILLARY REVENUE
CLAUSE 13.1. - The Concessionaire may obtain other, alternative
sources of revenue, provided this does not involve noncompliance with the
standards set forth in the General Telecommunications Services Regulations and
other standards published by ANATEL.
SOLE PARAGRAPH - The Concessionaire and its affiliates may not make
the provision of the service granted herein contingent upon the consumption of
any other service, nor may they offer advantages to users who benefit from
services in addition to the service that is the subject matter of this
Agreement, including those provided by third parties.
CLAUSE 13.2. - ANATEL may order the Concessionaire to offer users
conveniences or features related to the subject matter of the concession, in
which case the parties must adjust the unit prices of said services, taking into
account market parameters and the right to fair compensation.
CHAPTER XIV - RIGHTS AND PRIVILEGES OF USERS AND OTHER SERVICE PROVIDERS
CLAUSE 14.1. - In accordance with the rules and guidelines set forth
in this Agreement, users of the service granted by this concession are entitled
to the following rights:
16
<PAGE>
I - To access and use the service in accordance with the standards of
quality, regularity and efficiency provided for by this Agreement, in
its annexes and according to current standards;
II - The possibility of requesting the suspension or cancellation of
the service provided by the Concessionaire;
III - To receive nondiscriminatory treatment with regard to the terms
of access and use of the service;
IV - To obtain adequate information regarding the terms under which
the service is provided and the rates charged;
V - The inviolability and secrecy of communications, respecting
constitutional and legal provisions regarding the privacy of
telecommunication;
VI - To arrange, without charge, for their access code not to be
disclosed, by placing a request with the Concessionaire's customer
service department;
VII - The non-suspension of service unless requested, except in the
case of nonpayment of the debt resulting directly from its use, or
noncompliance with the duties set forth in Art. 4 of Law No. 9,472 of
1997;
VIII - Prior notification of any and all changes to the terms of
service that affect them directly or indirectly;
IX - Confidentiality of billing documents and the use of their
personal information by the Concessionaire;
X - To receive an efficient and prompt response from the
Concessionaire to their complaints, under the terms provided for in
clause 15.7;
XI - To lodge claims or petitions against the Concessionaire with
ANATEL and consumer rights organizations;
XII - To receive compensation for harm sustained due to the violation
of their rights;
XIII - Compliance with the terms of the Subscription Agreement which
they entered into for the service;
XIV - Freedom to choose their domestic and international long distance
carrier;
XV - Respect for their right to portable access codes, in accordance
with the provisions of the Numbering Regulations published by ANATEL;
and
17
<PAGE>
XVI - Not to be required to consume services or acquire goods or
equipment in which they have no interest, as well as not to be
compelled to satisfy certain conditions in order to receive the
service which is the subject matter of this concession, as provided by
regulation.
(S) 1 - The Concessionaire shall comply with the duty to safeguard the
privacy inherent to telephone service and the confidentiality of data and
information. Moreover, it shall employ the means and technology to guarantee
users this right.
(S) 2 - Upon the order of judicial authorities, the Concessionaire
shall make available the technological resources required to access private
telecommunications, as provided by regulation.
CLAUSE 14.2. - In addition to the rights referred to in the preceding
clause, other providers of telecommunications services shall be guaranteed the
following rights:
I - To interconnect with the Concessionaire's network under
nondiscriminatory business and operating conditions, under technically
suitable conditions, and at equally-applied and fair prices which
strictly consider the necessity of offering the service, in accordance
with the regulations published by ANATEL;
II - To receive the service requested from the Concessionaire without
any kind of discrimination, at market prices or prices negotiated
between the parties, and at any discount which may apply owing to
savings from bulk consumption, in accordance with regulation;
III - To obtain all information required to provide the service they
themselves operate, including billing information, except as regards
the Concessionaire's right to protect its trade secrets, as well as
the rights of third parties.
(S) 1 - Conflicts between the Concessionaire and other service
providers shall be resolved administratively by ANATEL, under the terms of
regulations to be published by ANATEL.
(S) 2 - ANATEL shall always oversee the relations between the
Concessionaire and the carriers using the service granted herein, in such a way
as to discourage conduct that may involve unfair harm to any of the parties, or
that undermines economic order and free competition. In these instances, once it
has exercised its authority, it shall notify the Administrative Council of
Economic Defense CADE of such conduct, in the manner provided for in Art. 19,
paragraph XIX of Law No. 9,472 of 1997.
CLAUSE 14.3. - In accordance with regulation, all users shall be
guaranteed the right to receive and use premium services, which must be provided
in adequate technical condition, and at equally-applied and fair prices. The
Concessionaire is prohibited from blocking or restricting the use of the service
granted herein in any way.
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<PAGE>
SOLE PARAGRAPH - A premium service is understood to be any activity
that enhances the service which is the subject matter of this concession, but
should not be confused with new features related to access, storage,
presentation, transfer or recovery of information.
CHAPTER XV - RIGHTS, PRIVILEGES AND OBLIGATIONS OF THE CONCESSIONAIRE
CLAUSE 15.1. - In addition to the other obligations arising from this
Agreement and inherent to the provision of the service granted hereby, it is the
duty of the Concessionaire:
I - To provide the service granted hereby in strict compliance with
the provisions of this Agreement, and to comply fully with the
regulations published by ANATEL;
II - To install all equipment and facilities needed to provide the
service which is the subject matter of the concession and ensure its
continuity, contemporaneity, expansion and universality, following the
specifications set forth in this Agreement;
III - To keep the telecommunications network in optimum operating
condition, with quantities, configurations and locations which are
proper and sufficient to provide suitable service;
IV - To provide the financial resources required to comply with the
standards for universal service and continuity set forth in this
Agreement, and to provide adequate service;
V - To provide ANATEL, in the manner and as often as provided by
regulation, with reports and information of a technical, operational,
business, accounting and financial nature, as well as to provide it
with all requested data and elements regarding the service granted
hereby;
VI - To maintain all public-use lines, whether permanent or temporary,
in the manner prescribed in this Agreement;
VII - To submit to audits by ANATEL and allow its agents access to its
company facilities as well as to its accounting records;
VIII - To keep separate accounting records for each department, as
well as to keep an up-to-date inventory of the goods and components
that make up the fixed assets of the company;
IX - To maintain a system for providing service and information to
users, under the terms of clause 15.7;
X - To safeguard the assets involved in providing the service granted
hereby;
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<PAGE>
XI - To submit to ANATEL for prior approval the draft as well as all
changes, amendments or variations applicable to the Standard Agreement
entered into with subscribers;
XII - To submit for prior approval from ANATEL the operating
agreements or service, partnership or joint-venture agreements it
wishes to sign with foreign entities;
XIII - To send for publication in the ANATEL library copies of the
agreements and contracts pertaining to the provision of service to
Brazilian and non-Brazilian providers of telecommunications services;
XIV - To divulge, directly or through third parties, the access
numbers of its own subscribers and other subscribers to Switched,
Fixed-line Telephone Service providers, whether in the public or
private sector, in the concession area with the exception of those
subscribers who specifically request that their personal information
not be given out;
XV - To provide a list of its subscribers to whomever it wishes, at
prices and within timeframes which are reasonable, and in a
nondiscriminatory manner;
XVI - To rigorously respect the secrecy and confidentiality of
telecommunications, in accordance with legal and contractual
obligations;
XVII - To respect the privacy of users as regards billing documents
and all personal information pertaining to them;
XVIII - To comply, at its own expense and in accordance with the
provisions of clause 7.2 of this Agreement, with all universal service
objectives which are expressly stated herein;
XIX - To implement any projects for the expansion and universalization
of service which may be ordered by ANATEL, in conformity with the
established level of compensation, timeframe and terms of
implementation, in accordance with the provisions of clause 7.3;
XX - To submit to ANATEL for prior approval any and all changes it
wishes to make to its bylaws regarding company spin-offs, mergers,
transformations and incorporations, as well as any transfer of
control, or change in its capital stock;
XXI - To guarantee interconnection with its network to any other
telecommunications service provider, in keeping with specific
regulation and the standards of this Agreement;
20
<PAGE>
XXII - To make its billing and collection services available to other
providers of Switched, Fixed-line Telephone Services, and charge them
fair and compatible prices under the terms of this Agreement and the
regulations;
XXIII - To respect all the rights of other telecommunications service
providers and refrain from any discriminatory conduct towards them or
attempt to obstruct their activity;
XXIV - To use equipment with certification either issued or accepted
by ANATEL, whenever required to do so by regulation;
XXV - To comply with the norms and technical standards in force in
Brazil, refraining from any discriminatory practice with regard to
goods and equipment manufactured therein;
XXVI - In the case of disasters, to make available to civil defense
authorities and agents all requested facilities, systems and access
thereto, with a view to providing them with support or protecting
affected populations;
XXVII - To give priority to assisting the President of the Republic,
his official representatives, his support team and staff, as well as
to foreign heads of state making official visits or trips through
Brazilian territory, for whom it shall make available the means
required to communicate adequately, in keeping with the regulations
published by ANATEL;
XXVIII - To pay the fee set by ANATEL in the event the duration of the
concession is extended, under the terms of (S) 1, Art. 207 of Law No.
9,472 of 1997, and clause 3.3 of this Agreement;
XXIX - To pay all inspection and operating costs for its
installations, as provided by regulation;
XXX - To publish annually, regardless of the legal system to which it
is subject, the balance sheet and year-end financial statements, as
set forth in the legislation in force and the regulations published by
ANATEL;
XXXI - To comply with current Brazilian standards as regards the use
of non-Brazilian labor, including in positions requiring advanced
qualifications;
XXXII - To compensate users for damages which have in fact resulted
from the failure to provide service which would have been expected in
view of the continuity guidelines and universal service objectives
provided for in this Agreement;
XXXIII - When entering into contracts for management services,
including technical assistance, with non-Brazilian entities not to
spend more than the
21
<PAGE>
following amounts, as a percentage of the annual revenue from
Switched, Fixed-line Telephone Service:
a) 1% (one percent) per year, until 12/31/2000;
b) 0.5% (zero point five percent) per year, from 01/01/2001 until
12/31/2002; and
c) 0.2% (zero point two percent) per year, as of 01/01/2003;
XXXIV - To comply with agreements between Brazil and other countries
and international organizations, in the manner laid down by ANATEL;
and
XXXV - To comply with the contracts entered into with TELEBRAS, the
subject matter of which is the provision of services by the Research
and Development Center CPqD or its successor.
SOLE PARAGRAPH - Decisions concerning paragraph XXXIII of this clause
and involving service and technical assistance contracts between the
Concessionaire and third parties with ties to the majority shareholders, must be
made at extraordinary shareholder meetings, and the Concessionaire must state in
its corporate bylaws, until 12/31/98, that preferred stock shall have voting
rights in such decisions, without detriment to the provisions of (S) 1, Article
115 of Law No. 6,404, of December 15, 1976.
CLAUSE 15.2. - Without detriment to the other provisions set forth in
this Agreement, and those privileges guaranteed by law, the Concessionaire has
the following rights:
I - To operate the conceded service within the framework of its
corporate strategy, and to define freely its investments, in
accordance with the regulations published by ANATEL and the provisions
of this Agreement
II - To appoint a representative to monitor the inspection activities
of ANATEL;
III - To interrupt, according to the terms of Clause 8.3 of this
Agreement, the service granted hereby, or not fulfill the service
requests, of subscribers who fail to fulfill their contractual
obligations towards the Concessionaire;
IV - To request arbitration proceedings under the circumstances and in
the manner prescribed by Chapter XXX of this Agreement;
V - To operate the service granted hereby under business conditions
without being subject to changes involving unjustified enrichment of
the government or users, under the terms provided for in Chapter XII;
VI - To request the revision of the rates applied to the conceded
service, in the manner provided for in this Agreement;
22
<PAGE>
VII - To request that ANATEL keep confidential the information it
gathers during its inspection/audit activities, under the terms
provided for in this Agreement;
VIII - To use equipment and infrastructure which do not belong to it
when carrying out services, in accordance with clause 21.1 of this
Agreement; and
IX - To contract with third parties to develop activities that are an
inherent part of, incidental to or which supplement the service
granted hereby, as well as to implement associated projects.
CLAUSE 15.3. - For as long as this Agreement is in force, the
Concessionaire shall be solely liable, with regard to third parties, for the
actions of its personnel, employees and contractors involved in the provision of
Switched, Fixed-line Telephone Service, as well as for the use of equipment,
installations and networks, and the government and ANATEL are held exempt from
all claims and/or indemnities.
CLAUSE 15.4. - The Concessionaire may not obstruct works in the public
interest, regardless of their nature, in the event it becomes necessary to
remove installations or telephone networks in order to render feasible
interventions promoted, either directly or indirectly, by any body or
organization of the public Administration.
CLAUSE 15.5. - The Concessionaire must execute agreements directly
with each Municipal government in the areas it operates the service granted
hereby, as well as with other public service utilities, as regards the location
of the poles and cross bars used to hang aerial lines and cables, and the
underground conduits and pipes used to run cables under streets and public
parks.
(S) 1 - The Concessionaire shall make arrangements with the holders of
public or private property over or under which it has to run conduits or pipes,
or install supports to hold said conduits and pipes, and shall obtain the
corresponding consent or easements for such purposes.
(S) 2 - The Concessionaire must seek arrangements with the respective
municipal authorities in order to maintain conditions required to overcome
interference in the network required to provide the service granted hereby,
including the felling and pruning of trees.
CLAUSE 15.6. - Under the terms of the provisions of Art. 73 of Law No.
9,472 of 1997, the Concessionaire may use poles, pipes, conduits and easements
belonging to or controlled by other providers of telecommunications services or
other public utilities.
(S) 1 - The use of the facilities referred to in the preceding
paragraph must be carried out in a nondiscriminatory way, and at fair and
reasonable prices.
(S) 2 - The Concessionaire must make the facilities it owns or
controls, referred to in the first paragraph of this clause, available to the
other providers of telecommunications
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services, classified by ANATEL as public utilities, and do so in accordance with
the same conditions provided for in the preceding paragraph.
(S) 3 - In the event the Concessionaire does not reach an agreement
with other service providers regarding the use of the facilities referred to in
this clause, it shall be ANATEL's duty, either alone or together with other
involved regulatory bodies, to define the conditions of said use.
CLAUSE 15.7. - During the entire duration of this concession, the
Concessionaire shall maintain a user information and service center operating 24
(twenty-four) hours a day, capable of receiving and processing requests,
complaints and claims from users, either in person or via any form of long
distance communication.
(S) 1 - The Concessionaire must make available to all users the
addresses and access codes of its information and service center, which are
required to be listed in the Standard Contract entered into with service
subscribers.
(S) 2 - The Concessionaire must make available and announce an
easy-to-dial, toll-free number for users to make requests via telephone.
(S) 3 - All requests, claims or complaints made by users, by whatever
means, must be assigned an order number, which shall be given to the concerned
party so that he or she can be assisted.
(S) 4 - The user shall be informed, within the timeframe defined in
the General Plan on Quality, of the measures taken in response to his or her
request, claim or complaint.
(S) 5 - In the event that ANATEL notes that users are having
difficulty obtaining access to the information and service center, it may order
the Concessionaire to increase the availability of access, or risk being found
guilty of not complying with the obligation provided for in this clause.
CLAUSE 15.8. - When hiring services and acquiring equipment and
materials associated with the provision of the service which is the subject
matter of this Agreement, the Concessionaire commits itself to field offers from
independent suppliers, including those which are state-run, and to base its
decisions, with regard to the various offers submitted, on the objective
criteria of price, conditions of delivery and technical specifications set forth
in the relevant regulations.
(S) 1 - In the event of equivalent offers, the Concessionaire agrees
to use as the deciding criteria, the preference of services offered by companies
located in Brazil, and equipment and materials produced in Brazil, particularly
those produced using Brazilian technology. The issue of equivalent offers shall
be automatically decided if, cumulatively:
I - The price in Brazil of the domestic product is lower than or equal
to that of the imported product, tax included;
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II - The delivery schedule meets the Concessionaire's needs; and
III - The technical specifications established by relevant regulation
are met and the product has certification that has either been issued
or accepted by ANATEL, when applicable.
(S) 2 - Services are understood to mean those relating to research and
development, planning, setting up and physically installing, operating,
maintaining, supervising and performing evaluation tests of telecommunication
systems.
(S) 3 - ANATEL shall formulate regulations governing the execution of
the provisions in this clause, including applicable penalties.
CHAPTER XVI - OBLIGATIONS AND PREROGATIVES OF ANATEL
CLAUSE 16.1. - In addition to the prerogatives that are an inherent
part of its function as a regulatory body, and other obligations under this
Agreement, ANATEL shall be responsible for:
I - Overseeing and monitoring the provision of the service granted
hereby and the safeguarding of revertible assets, ensuring compliance
with the standards, specifications and instructions set forth in this
Agreement and its annexes;
II - Carrying out site visits to inspect the adequacy of installations
and equipment, and ordering any necessary rectifications, repairs,
removals, reconstruction or replacements, at the expense of the
Concessionaire;
III - Continually regulating the execution of the conceded service;
IV - Intervening when necessary in the execution of the service
granted hereby in order to ensure its regularity and faithful
compliance with the Agreement and relevant legal standards;
V - Applying the penalties provided for by regulation of the service
and specifically, by this Agreement;
VI - Reviewing the Supplemental Domestic Long-Distance Service Plans
submitted by the Concessionaire;
VII - Authorizing the adjustment of rates and revising them, under the
terms of, and in accordance with, the provisions of this Agreement;
VIII - Acting within the limits set forth in this Agreement to prevent
the parties from unjustified enrichment, under the terms of this
Agreement;
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IX - Ensuring the high quality of the service granted hereby,
accepting, processing and resolving complaints and claims from users,
and informing them, within ninety days, of the measures taken to curb
infringements upon their rights;
X - Declaring the termination of the Concession in the cases provided
for in this Agreement;
XI - Guaranteeing interconnectivity, and settling any disputes which
arise between the Concessionaire and other service providers;
XII - Ensuring compliance with the universal service objectives
provided for in this Agreement, and with any objectives set forth in
future Objectives Plans;
XIII - Continually overseeing the relations between the Concessionaire
and other providers of telecommunications services, and settling any
disputes arising among them;
XIV - Discouraging conduct by the Concessionaire that runs contrary to
the system of free competition, in keeping with the legal authority of
the Administrative Council of Economic Defense - CADE;
XV - Submitting to the President of the Republic, at the request of
the Concessionaire and through the intermediary of the Ministry of
Communications, proposals for declarations of public interest, with a
view to exercising eminent domain or implementing public easements
over the property needed to establish or maintain the service which is
the subject matter of this Agreement;
XVI - Auditing the service granted hereby under the terms set forth in
this Agreement; and
XVII - Collecting fees for FISTEL and adopting the measures provided
for in current legislation.
CHAPTER XVII - THE CONCESSIONAIRE
CLAUSE 17.1. - The Concessionaire is a company incorporated under
Brazilian law, as a corporation (sociedade anonima), with the sole purpose of
operating the service that is the subject matter of this concession, with the
exception of those services provided for under the terms of (S) 3, Art. 207 of
Law No. 9,472 of 1997.
SOLE PARAGRAPH - In the event that changes to the Concessionaire's
bylaws are approved, the documents formalizing such changes shall be sent to
ANATEL for filing, and shall be fully incorporated into this Agreement.
CLAUSE 17.2. - The Concessionaire and those entities which control it
agree to maintain, for the entire duration of the concession and its extension,
all of the service conditions and capabilities which existed at the time this
Agreement entered into force.
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CLAUSE 17.3. - The Concessionaire and those entities which control it
agree to ensure the actual existence on Brazilian territory, during the
concession period and the extension thereof, of centers for decision-making and
the implementation of strategic, managerial and technical decisions involved in
carrying out this Agreement, as well as to ensure this obligation is reflected
in the make-up and decision-making processes of its governing bodies.
SOLE PARAGRAPH - The Concessionaire must include provisions in its
bylaws, until December 31, 1998, which guarantee compliance with the provisions
of the preceding paragraph.
CHAPTER XVIII - ASSIGNMENT OF THE CONCESSION AND CHANGE OF CONTROL OF THE
CONCESSIONAIRE
CLAUSE 18.1. - Assignment of the concession, or the change of direct
or indirect control over the Concessionaire, may only be authorized by ANATEL,
in keeping with the General Concession Plan and Art. 202 of Law No. 9,472 of
1997, provided that:
I - The assignee fulfills all of the requirements established under
the terms of Art. 200 of Law No. 9,472 of 1997; and
II - The assignment or change does not undermine competition, or
threaten the execution of this Agreement or the general standards for
the protection of economic order.
SOLE PARAGRAPH - Failure to comply with any provision of this clause
shall result in the forfeiture of this concession.
CLAUSE 18.2. - The capital stock of the Concessionaire may be pledged
freely, and such an assignment does not affect its control.
SOLE PARAGRAPH - If the pledging of stock results in the taxation of
the assets of the Concessionaire, provisions must be made in the financing
agreements in order to submit the creditors, in the event of foreclosure, to the
rules set forth in this Chapter.
CHAPTER XIX - INSPECTION SYSTEM
CLAUSE 19.1. - ANATEL shall carry out inspections of the service
granted herein in order to ensure compliance with the prerequisites of universal
service and continuity, which are an inherent part of the public service being
provided. It shall also ensure fulfillment of the objectives and commitments set
forth in this Agreement.
(S) 1 - The inspections to be performed by ANATEL shall involve
inspecting and monitoring the Concessionaire's activities, equipment and
facilities, which in turn requires complete access to all of the
Concessionaire's or third parties' data and information.
(S) 2 - The information gathered during its inspection activities
shall be published by its library, with the exception of information which, at
the Concessionaire's request, is considered by ANATEL to be confidential in
nature.
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(S) 3 - Any information judged confidential in nature under the terms
of the preceding paragraph shall only be used in proceedings related to this
Agreement, and any requests for further dissemination of such information,
whether broad or restricted, must be made to ANATEL, or whomever it has
indicated.
CLAUSE 19.2. - The Concessionaire, through the intermediary of a named
representative, may monitor any and all of ANATEL's inspection activities. It
may not obstruct or prevent said inspection activities, at the risk of being
subject to the penalties provided for in this Agreement.
CHAPTER XX - REPORTING OBLIGATIONS OF THE CONCESSIONAIRE
CLAUSE 20.1. - As provided by regulation, the Concessionaire must
periodically send ANATEL statistical and status reports on all services
provided, including, among other elements, figures on the expansion and scope of
the telephone network. The Concessionaire must also report on the technological
status of the equipment used.
CHAPTER XXI - CONCESSION-RELATED ASSETS
CLAUSE 21.1. - The assets related to this concession consist of all
assets owned by the Concessionaire and required to provide the service conceded
herein, especially those classified as such in Annex 1 Classification of
Revertible Assets Used to Provide Domestic Long-Distance, Switched, Fixed-Point
Telephone Service.
(S) 1 - Concession-related assets also include permits that have been
granted for the use of the radio frequency spectrum and, where applicable, usage
rights for orbital positions, in accordance with Articles 48 and 161 of Law No.
9,472 of 1997 and the provisions of clause 4.1 of this Agreement.
(S) 2 - With regard to concession-related assets, the Concessionaire
must receive the prior and express consent of ANATEL for the direct use of
equipment, infrastructure, software systems, or any other type of asset that is
not its property, in order to provide the service conceded herein. ANATEL may
exempt it from this requirement in the cases and circumstances provided for by
regulation.
(S) 3 - If the continuity of service is at risk, or there is an
impediment to the reversion of a concession-related asset, ANATEL may withhold
authorization to use third-party assets, or require that the corresponding
Agreement contain a clause stipulating that the owner agrees, in the event of
termination of the concession, to uphold the Agreement and transfer to ANATEL
the rights pertaining thereto.
CHAPTER XXII - THE SYSTEM OF REVERSION
CLAUSE 22.1. - In the event of the termination of the concession, all
concession-related assets shall revert automatically to ANATEL, as indicated in
Chapter XXI above, and the Concessionaire shall retain its right to the
compensation provided for by law and this Agreement.
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SOLE PARAGRAPH - Within 180 (one hundred eighty) days following the
termination of the concession, an inventory shall be taken of the assets
pertaining thereto, and an Asset Restitution and Reversion Statement shall be
drawn up, with a detailed account of the condition of said assets. One or more
representatives of the Concessionaire shall be authorized to monitor the
foregoing.
CLAUSE 22.2. - The Concessionaire commits itself to remit revertible
assets in a perfect state of operation, utilization and maintenance, except as
regards normal wear and tear through usage.
SOLE PARAGRAPH - Revertible assets shall be transferred to ANATEL free
of any charge or encumbrance, while taking into account the scenario stated in
paragraph 2 of the following clause.
CLAUSE 22.3. - The reversion of assets, as addressed in Chapter XXI
above, which occurs at the end of the contractual term, shall be carried out
without compensation, except as provided for in this clause.
(S) 1 - The Concessionaire shall only be compensated if, upon the
termination of the Concession, there exist partially-amortized assets, the
acquisition of which had been previously authorized by ANATEL, or which were
acquired prior to the signing of this Agreement, for the purpose of guaranteeing
reliable, up-to-date service.
(S) 2 - In place of or in addition to the compensation provided for in
the preceding paragraph, ANATEL may allow the assignment of assets that have
been pledged as security for its own financing needs, and assume any financed
portion which is still outstanding.
CLAUSE 22.4. - Upon termination of the Concession, ANATEL shall assess
the assets referred to in clause 21.1, and may refuse the reversion of assets it
considers dispensable to, or useless in the operation of the service granted
hereby. The Concessionaire is guaranteed the right to contest the foregoing,
including by way of reports or studies prepared and presented at its expense,
demonstrating the need for reversion.
SOLE PARAGRAPH - In the event the Concessionaire disagrees with
ANATEL's decision regarding the provisions of this clause, recourse to the
dispute-resolution process provided for in this Agreement shall be allowed.
CHAPTER XXIII - INSURANCE PLAN
CLAUSE 23.1. - During the entire time the concession is in force, the
Concessionaire must subscribe, with an appropriate Insurance Company registered
with the corresponding regulatory body of the insurance industry, to the
insurance policies listed below in order to ensure effective and comprehensive
coverage of the inherent risks involved in carrying out all of the activities
contemplated within this Agreement.
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I - Comprehensive insurance against material damage, covering the
loss, destruction or damage of any and all assets associated with the
concession. Said insurance must provide blanket coverage, in
accordance with international standards;
II - Business interruption insurance which covers, at a minimum,
variations in the Concessionaire's income resulting from accidents, or
changes in the operating terms of the Agreement, which affect
operating costs and which are not covered by insurance against
material damage, provided that taking out this type of insurance is
allowed by Brazilian standards and expressly authorized by the
Brazilian Reinsurance Institute - IRB or an equivalent organization;
and
III - Insurance covering the achievement of the quality and universal
service requirements provided for in this Agreement (i.e., a
performance bond, a letter of credit and the amount kept as a deposit)
with a value corresponding to 10% of the estimated annual amount
invested in order to achieve the objectives provided for in this
Agreement.
(S) 1 - The Concessionaire must arrange to have its insurance policies
include the requirement that the Insurer inform the Concessionaire and ANATEL,
in writing and with at least 10 (ten) days' notice, of any information which may
entail the complete or partial cancellation of the policies taken out, a
reduction in coverage, an increase in deductibles, or a lowering of the values
covered.
(S) 2 - Policies taken out in order to comply with the provisions of
this clause may not contain obligations, restrictions or provisions which
contradict the provisions of this Agreement or regulations, and must contain an
express statement by the Insurer that it is completely familiar with this
Agreement, specifically as regards the limits of the Concessionaire's rights.
(S) 3 - In the event the Concessionaire fails to comply with the
requirement to keep the required insurance policies in effect, then ANATEL,
notwithstanding its ability to order intervention in or the termination of this
concession, may then take out said insurance and directly pay for the
corresponding premiums, at the expense of the Concessionaire.
(S) 4 - Every year, by the end of the month of January, the
Concessionaire must submit a certificate issued by the insurers, confirming that
all the premiums due for the preceding year have been paid, and that the
policies have taken full effect or been renewed. In the latter case, any new
policy terms are also to be submitted.
(S) 5 - The policies referred to in this clause must comply with the
following deadlines for presentation and activation:
I - The policy referred to in item I of the first paragraph of this
clause must be presented within 90 (ninety) days as of the signing of
this Agreement, and must take immediate effect;
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II - The policy referred to in item II of the first paragraph of this
clause must be presented by November 30, 1999, and take effect as of
January 1, 2000; and
III - The policy referred to in item III of the first paragraph of
this clause must be presented by November 30, 2000, and take effect as
of January 1, 2001.
(S) 6 - ANATEL may change the coverage or the presentation deadlines
for the policies referred to in this clause so as to adapt said requirements to
the regulations published by the Private Insurance Commission - SUSEP, or to the
terms established by the Brazilian Reinsurance Institute - IRB. It may also do
so if standards are published which interfere with the contracting of the
insurance referred to herein, or if the market is not ample or competitive
enough to allow the insurance to be taken out at a reasonable cost.
CHAPTER XXIV - INTERCONNECTION
CLAUSE 24.1. - The Concessionaire is required to allow, facilitate,
provide and implement the interconnection of other telecommunications service
providers' networks with the network it operates, whether they are in the public
or private sector, and whenever they so request. In so doing, it shall enforce
and observe the regulations published by ANATEL pertaining thereto.
CLAUSE 24.2. - The network usage fees required as of the signing of
this Agreement are those listed in Administrative Ruling No. 2,505 of December
20, 1996, issued by the Ministry of Communications, and may be updated and
reviewed in keeping with the provisions of this Agreement as provided by
regulation.
CLAUSE 24.3. - The Concessionaire shall enjoy the same rights, and
observe the same terms of interconnection, as the ones applying to other service
providers.
SOLE PARAGRAPH - The Concessionaire must maintain the elements of its
network for interconnection at the most technically advanced level possible, in
accordance with ANATEL regulations.
CHAPTER XXV - PENALTIES
CLAUSE 25.1. - In the execution of this Agreement, the Concessionaire
shall be subject to the following penalties, notwithstanding other penalties
provided for by regulation, which shall be applied by way of justified decisions
by ANATEL, and the former shall be guaranteed the right to defend itself under
the terms of the Internal Regulations.
I - For violations of the provisions of this Agreement resulting in
non-fulfillment of universal service objectives, there shall be a fine
of up to R$50,000,000.00 (fifty million Brazilian reais);
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II - For acts or omissions contrary to the provisions set forth in
this Agreement, and which cause harm to competitors in the
telecommunications industry, there shall be a fine of up to
R$50,000,000.00 (fifty million Brazilian reais);
III - For any violation of contractual provisions which results in the
non-fulfillment of quality of service objectives or guidelines, there
shall be a fine of up to R$40,000,000.00 (forty million Brazilian
reais);
IV - For any other act or omission not covered by the preceding
paragraphs, and which involves the violation of users' rights as set
forth in this Agreement, or which causes them harm, there shall be a
fine of up to R$30,000,000.00 (thirty million Brazilian reais);
V - For any act or omission which violates the provisions of clause
15.8 of this Agreement, involving the hiring of services and the
acquisition of equipment and materials manufactured in Brazil, there
shall be a fine of up to R$30,000,000.00 (thirty million Brazilian
reais);
VI - For any act or omission which obstructs or hinders the inspection
activities of ANATEL as provided for in this Agreement, there shall be
a fine of up to R$20,000,000.00 (twenty million Brazilian reais);
VII - For any act, omission or negligence which threatens the security
of the facilities, there shall be a fine of up to R$15,000,000.00
(fifteen million Brazilian reais);
VIII - For any act or omission which brings harm or poses a risk to
concession-related assets or equipment, there shall be a fine of up to
R$10,000,000.00 (ten million Brazilian reais); and
IX - For failure to comply with any express requirement in this
Agreement, with the exception of the requirements stated in the
preceding paragraphs, for which penalties have already been
determined, there shall be a fine of up to R$10,000,000.00 (ten
million Brazilian reais).
(S) 1 - The infraction specified in paragraph I of this clause shall
be characterized by the failure of the Concessionaire to fulfill its
obligations, within the timeframes set forth in this Agreement, with regard to
the expansion and increased availability of the service granted hereby by
supplying public telephones and assistance to localities, in keeping with the
provisions of the General Plan on Universal Service. When applying the penalty,
the following factors shall be taken into consideration, in addition to the
general principles laid forth in this Chapter:
a) The difference between the objective defined in the Agreement and
its degree of implementation;
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b) The possibility for the Concessionaire catch up on the
implementation schedule, at its own expense;
c) The harm done to the policy reflected in the General Plan on
Universal Service;
d) The harm done to the intended direct beneficiaries of the
unfulfilled objectives; and
e) Any attenuating circumstances of a technical or economic nature
which may lessen the responsibility of the Concessionaire,
although not exonerate it.
(S) 2 - The seriousness of the infraction indicated in paragraph II of
this clause shall be defined solely on the basis of the general criteria
indicated in clause 25.2, and shall be characterized by conduct of the
Concessionaire which, directly or indirectly, could inflict harm upon its
competitors in the industry, particularly:
a) Obstructing or hindering the option to use another provider of the
service or domestic and international long distance service.
b) Refusing to provide interconnection to a provider of
telecommunications services;
c) Obstructing or hindering the activity of providers of premium
services;
d) Placing conditions upon the availability of the conceded service,
or offering advantages to users in exchange for their acquiring
services other than the service which is the subject matter of
this Agreement;
e) Supplying any telecommunications service that is not a purpose of
the concession or authorized by ANATEL;
f) Failing to uphold quality standards regarding interconnection; and
g) Delaying the supply of information vital to the activities of
other service providers, especially involving user-related
information.
(S) 3 - The infraction specified in paragraph III of this clause shall
either be characterized by repeatedly providing service which is below the
quality parameters defined in the General Plan on Quality, or by demonstrably
contravening the quality indicators listed in Chapter VI. In the first case,
the following are considered particularly serious infractions:
a) Failure to allocate the human and material resources required to
maintain minimum quality standards in the operation and
maintenance of the service granted hereby; and
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b) Negligence in modernizing the network which impacts the quality of
service.
(S) 4 - The seriousness of the infraction indicated in paragraph IV of
this clause shall be defined on the basis of the number of users affected and on
the damage caused. It shall be characterized by the violation, whether directly
or indirectly, through commission or omission, of an obligation stipulated in
this Agreement, and which does not involve a violation of duties pertaining to
universal service and quality, but rather a violation of the rights of users,
particularly:
a) Interruption of service for periods longer than allowed by the
General Plan on Quality, except under the circumstances indicated in the sole
paragraph of clause 6.3;
b) Refusal to provide the conceded service to any interested party;
c) Failure to fulfill the duty of providing information to users;
d) Breach of the secrecy of telecommunications, outside of legally-
mandated circumstances, even in the case of breaches committed by
third parties using facilities over which the Concessionaire has
responsibility;
e) Failure to maintain a user information and service center as
stipulated in this Agreement;
f) Charging rates or prices which are against the rules stipulated in
this Agreement and as provided by regulation; and
g) Restricting the right to freely choose among Domestic Long-
Distance Service Plans.
(S) 5 - The penalty provided for by paragraph V of this clause shall
be characterized by a verifiable violation of the obligation indicated in clause
15.8, and its seriousness shall be determined in accordance with regulatory
provisions.
(S) 6 - The seriousness of the infraction indicated in paragraph VI of
this clause shall be defined on the basis of the significance of the inspection
activity obstructed, and shall be characterized by a violation committed by the
Concessionaire or its employees, whether directly or indirectly, through
commission or omission, which impedes or hinders the inspection activities
carried out by ANATEL, by its employees, or even by users, particularly:
a) The refusal of the Concessionaire to comply with requests for
information made by ANATEL regarding the conceded service or the
assets allocated to it;
b) Hindering the actions of ANATEL's inspectors;
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c) Failure to fulfill the publicity obligations provided for in this
Agreement, or as provided by the regulation; and
d) Failure to send, or to send in a timely manner, information, data,
reports or documents which, as determined by regulation or this
Agreement, should have been conveyed to ANATEL.
(S) 7 - The seriousness of the infraction indicated in paragraph VII
of this clause shall be defined on the basis of the degree of risk posed, and
shall be characterized by conduct of the Concessionaire which runs counter to
the rules set forth in this Agreement and as provided by regulation, violates
norms and standards of technical safety, or which poses a risk to the facilities
allocated to the conceded service, particularly:
a) The use of equipment not certified by ANATEL to provide the
service, when such certification is required;
b) Failure to allocate the human and material resources required to
maintain minimum safety standards in the operation and maintenance
of the service; and
c) Failure to take the precautions recommended for the service
conceded herein.
(S) 8 - The seriousness of the infraction indicated in paragraph VIII
of this clause shall be defined on the basis of the significance, the economic
importance and the indispensability of the assets involved, and shall be
characterized by conduct of the Concessionaire which runs counter to the
provisions of this Agreement or the regulations, and which could pose a risk to
assets or equipment associated with this concession, or make their reversion
difficult, particularly:
a) Failure to keep inventory and records of the assets referred to in
clause 21.1;
b) The direct use of the assets of third parties in providing the
service, without prior authorization from ANATEL, or without a
regulatory dispensation; and
c) Negligence in maintaining revertible assets, as provided by
regulation.
(S) 9 - The penalty provided for in paragraph IX of this clause shall
be called for in the case of a demonstrable violation of a contractual
obligation which is not included among the preceding paragraphs, particularly
the violation indicated in paragraph XXXI of clause 15.1.
(S) 10 - The penalty provided for in paragraph II above is of a
contractual nature and shall be applied by ANATEL regardless of any measures
taken by the Administrative Council of Economic Defense - CADE.
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(S) 11 - Failure to pay any fine which has been determined under the
provisions in this clause, and within the timeframe determined by ANATEL, shall
constitute a serious violation, and shall occasion intervention in the affairs
of the Concessionaire, under the terms set forth in Chapter XXVIII. It shall
also entail payment of a late fee of 0.33% (zero point thirty-three percent) per
day, up to a maximum of 10% (ten percent), plus the SELIC reference rate for
federal securities, to be levied upon the amount owed on the basis of the number
of days it is past due.
CLAUSE 25.2. - When applying the contractual fines provided for in
this Chapter, the rules stated in Title VI, Book III of Law No. 9,472 of 1997,
and those provided by regulation, shall be observed.
(S) 1 - When defining the seriousness of penalties and determining
fines, ANATEL shall take the following factors into account:
I - Whether the severity of the punishment is in proportion to the
seriousness of the violation, while also taking into account the
number of users affected;
II - The damage inflicted upon the service and users as a result of
the infraction;
III - Any advantage which the Concessionaire has reaped as a result of
the infraction;
IV - The market share of the Concessionaire in its geographical
service area;
V - The economic and financial situation of the Concessionaire,
especially its potential to generate revenue, and its assets;
VI - The Concessionaire's past record;
VII - Whether the violation is a repeat offense, that being a repeat
of a violation of the same nature after having received notification
previously; and
VIII - Whether the infraction involved aggravating or attenuating
circumstances.
(S) 2 - Regardless of the specific ranking criteria provided for in
each paragraph of the preceding clause, and others provided for by regulation,
penalties shall be ranked using the following scale:
I - The infraction shall be considered minor if it results from
unintentional or excusable conduct of the Concessionaire, and from
which it does not benefit;
II - The infraction shall be considered moderately serious if it
results from inexcusable conduct, but which does not provide the
Concessionaire with any benefit or gain, or affect a significant
number of users; and
III - The infractions shall be considered serious if ANATEL finds
evidence that:
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<PAGE>
a) The Concessionaire has acted in bad faith;
b) The infraction has resulted in a direct or indirect benefit for
the Concessionaire;
c) The Concessionaire's infraction is a repeat offense;
d) A significant number of users were affected; and
e) There were circumstances of the kind anticipated in (S) 10 of the
preceding clause.
(S) 3 - At ANATEL's discretion, in the case of first-time occurrences
of infractions classified as minor, it may apply the disciplinary measure of
issuing a warning to the Concessionaire, which shall be formally notified of the
sanction, regardless of the publication of the ruling in the Official Journal.
(S) 4 - When applying the disciplinary measures provided for in this
Chapter, the Disciplinary Proceedings provided for in the Internal Regulations
of ANATEL shall be observed.
(S) 5 - In the case of the infractions provided for in paragraph IV of
clause 25.1, ANATEL may reduce the amount the Concessionaire would pay in fines
from the amount to be paid as compensation to the affected users, and the
compensation criteria, the payment schedule and the maximum amount of the
abatement shall be stated within the sentencing document.
(S) 6 - The measure provided for in the preceding paragraph may only
be adopted if it can be proved that respecting the rights or demands of users
shall not exonerate the Concessionaire from its liability for other civil
damages owed.
CLAUSE 25.3. - The fines provided for in this clause shall be applied
notwithstanding scenarios involving intervention or declaration of forfeiture,
as provided for in this Agreement.
SOLE PARAGRAPH - In the event of complete or partial failure to carry
out an adjustment, or unjustified delays of over 120 (one hundred twenty) days
in complying with the objectives set forth in this Agreement, the Concessionaire
shall be subject to a declaration of forfeiture of the Concession, under the
terms set forth in clause 26.4.
CLAUSE 25.4. - The amounts of the fines provided for in this Chapter
shall be adjusted annually by applying the GPI-DA, and the first adjustment
shall take place one year after the signing of this Agreement.
CHAPTER XXVI - TERMINATION OF THE CONCESSION
CLAUSE 26.1. - The Concession Agreement shall be considered terminated
in the event of the following:
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<PAGE>
I - Expiration of the concession period for the service granted
hereby, in the event it has not been extended under the terms of this
Agreement;
II - Expropriation, in accordance with Art. 113 of Law No. 9,472 of
1997;
III - Forfeiture, under the terms set forth in Article 114 of Law No.
9,472 of 1997 and in this Agreement;
IV - Amicable or judicial rescission, under the terms of Art. 115 of
Law No. 9,472 of 1997; and
V - Annulment.
(S) 1 - Upon termination of the concession, the rights and duties
pertaining to the provision of the conceded service shall revert to ANATEL,
along with the assets referred to in clause 22.1, and the Concessionaire shall
retain the right to the compensation provided for by law and within this
Agreement.
(S) 2 - Following the termination of the concession, ANATEL shall
undertake all necessary inventories, assessments and settlements within 180 (one
hundred eighty) days of taking over the service granted hereby, except in the
case of expiration of the agreement, in which case these steps are to be taken
in advance by ANATEL.
(S) 3 - If the concession is terminated prior to its contractual
expiration date, ANATEL may do the following, notwithstanding other suitable
measures:
I - Make temporary use of fixed and intangible assets, and avail
itself of the personnel required to continue providing the service
granted hereby; and
II - Maintain the Contracts signed between the Concessionaire and
third parties for the duration and under the terms initially agreed
upon.
CLAUSE 26.2. - Reversion upon the expiration of the Agreement shall be
carried out without compensation, except under the circumstances provided for in
clause 22.3.
CLAUSE 26.3. - Under the terms of Art. 113 of Law No. 9,472 of 1997,
expropriation is understood to be the repossession of the service by ANATEL
during the concession period, due to extraordinary motives of public interest,
by way of a specific authorizing law and subsequent to the payment of
compensation.
CLAUSE 26.4. - In the circumstances listed below, the forfeiture of
this Agreement may be declared by an act of the Board of Directors of ANATEL,
preceded by administrative proceedings which guarantee the Concessionaire an
ample defense:
I - Transfer of corporate control, spin-offs, mergers or
transformation of the Concessionaire, as well as raising or lowering
its capital stock without the prior approval of ANATEL;
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<PAGE>
II - Improper assignment of the Agreement;
III - Failure to fulfill a commitment to an assignment, as referred to
in clause 18.1 of this Agreement and Art. 87 of Law No. 9,472 of 1997;
IV - Bankruptcy or dissolution of the Concessionaire;
V - Noncompliance with insurance coverage requirements, in violation
of the obligations provided for in clause 23.1, which, in the judgment
of ANATEL, cannot be dealt with through intervention; and
VI - The occurrence, under the terms of Art. 114, paragraph IV of Law
No. 9,472 of 1997, of any of the situations stipulated by clause 28.1,
and in which intervention, in the judgment of ANATEL would be
inappropriate, ineffective or even unjustly favorable to the
Concessionaire.
(S) 1 - Intervention shall be judged unnecessary in the event the
demand for the service which is the subject matter of the concession may be met,
through authorization, by other providers in a regular and immediate fashion.
(S) 2 - Declaring forfeiture shall not preclude the application of
appropriate penalties, under the terms of this Agreement, for infractions
committed by the Concessionaire, nor shall it prejudice the right to
compensation defined under the terms of the following Chapter.
CLAUSE 26.5. - The Concessionaire shall be entitled to contractual,
judicial or amicable rescission in the event that, due to acts or omissions of
government authorities, the execution of the Agreement becomes excessively
onerous, under the terms of Art. 115 of Law No. 9,472 of 1997.
SOLE PARAGRAPH - The introduction or increase of competition among the
various providers of the service which is the subject matter of the concession
does not constitute a motive for the rescission of the Agreement, since the
Concessionaire clearly takes this concession with the knowledge that it will be
carrying out its activities without any kind of reserved or exclusive market.
CLAUSE 26.6. - Annulment shall be decreed by ANATEL in the event that
irremediable and serious irregularities are discovered in this Agreement.
CHAPTER XXVII - COMPENSATION
CLAUSE 27.1. - For the purposes of calculating compensation owed by
ANATEL to the Concessionaire, in the cases expressly provided for in this
Agreement, the following shall be observed:
I - Expiration of the contract term: No compensation shall be due,
unless it is proved that the absence of payment results in the
unjustified enrichment of the
39
<PAGE>
government through the reversion of assets which have not been
completely amortized, in accordance with the provisions of clause
22.3;
II - Expropriation: In keeping with the provisions of Art. 113 of Law
No. 9,472 of 1997, compensation, which shall be paid prior to
expropriation, must correspond to the value of the assets which are
reverting to the granting authority, minus depreciation;
III - Forfeiture: Independently of the application of penalties and
the indemnification of damage resulting from breach of contract, under
the terms of the Agreement, the Concessionaire may only claim
compensation if it is proved that the government will be unjustly
enriched through the reversion of assets that have not been completely
amortized or depreciated, after deducting the value of the damage
incurred and of imposed fines, in addition to any unmet financial
obligations;
IV - Amicable or judicial rescission: No compensation shall be due,
unless otherwise determined by a court ruling; and
V - Annulment: Compensation shall only be due if it is proved that the
Concessionaire did not act illegally, and such compensation shall
correspond solely to the actual value of the assets which revert to
the government, calculated on the date the annulment is decreed, on
the condition that said assets have not yet been fully amortized.
(S) 1 - The temporary amount to be advanced by ANATEL in cases of
expropriation shall be calculated in the manner prescribed by the specific
authorizing legislation.
(S) 2 - In the event that forfeiture is brought about through the
demonstrated fault of the Concessionaire, it shall also occasion:
a) retention of the credits stemming from the Agreement, including
the appropriation of revenue from the payments made by users of
the service;
b) liability for prejudice caused to the government and to the users;
c) the levying of fines under the terms provided for in this
Agreement and current legislation; and
d) loss of the insurance guarantee provided for in clause 23.1.
(S) 3 - Except in cases of expropriation, the appropriate compensation
for other instances of termination of the Agreement shall be calculated under
the terms of this chapter and divided into installments equal to the number of
months the concession would have been in effect. The first installment shall be
paid one year after the termination of the Agreement.
40
<PAGE>
(S) 4 - The responsibility for paying the various types of
compensation may be transferred by ANATEL to the provider that takes over the
operation of the service granted hereby from the Concessionaire. However, ANATEL
shall reassume the payment obligation in the event the new provider is more than
90 (ninety) days behind in its payments.
CHAPTER XXVIII - INTERVENTION
CLAUSE 28.1. - In the event the continuity and security of the service
granted hereby is jeopardized through the fault of the Concessionaire,
especially in the situations indicated below, then ANATEL, at its discretion and
in the public interest, may decree its intervention in the affairs of the
Concessionaire by way of a specific and justified act of its Board of Directors.
I - Unjustified paralysis of the service granted hereby, that being
the interruption of service under circumstances not anticipated by
this Agreement, and which are not attributed to causes which ANATEL
considers justifiable;
II - Inadequacy or repeated insufficiencies of the service provided,
characterized by noncompliance with the quality parameters provided
for in this Agreement and by regulation, even after warnings issued by
ANATEL to rectify the situation by a certain deadline;
III - Poor administrative practices that jeopardize the continuity of
the service granted hereby;
IV - Recurrence of violations defined as serious under the terms of
clause 25.1 above;
V - Non-fulfillment of universal service objectives, that being the
unjustified failure to comply with the timetable for implementing the
universal service requirements of this Agreement;
VI - Unjustified withholding of interconnection, understood as
refusing, delaying or postponing the negotiation or implementation of
a connection to its network, at the request of another service
provider, and in compliance with the terms of interconnection
determined by ANATEL;
VII - Violation of economic order, characterized by unfair trade
practices; and
VIII - Failure to provide reports to ANATEL, or obstruction of
inspection activities, which may presuppose the occurrence of any of
the events anticipated in the previous paragraphs.
CLAUSE 28.2. - The intervention decree must state the timeframe,
motives, goals and scope, in addition to designating the intervening party.
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<PAGE>
SOLE PARAGRAPH - The duration and scope of the intervention must be
compatible with and in proportion to the cause for the intervention.
CLAUSE 28.3. - The intervention shall be preceded by administrative
proceedings initiated by ANATEL, during which the full rights of defense of the
Concessionaire shall be guaranteed.
SOLE PARAGRAPH - If immediate intervention is indispensable, it may be
decreed as a precaution by ANATEL, without a prior declaration by the
Concessionaire, in which case the proceedings must be initiated immediately as
of the date of the decree, and concluded within one hundred eighty days, during
which time the Concessionaire may exercise its full rights of defense.
CLAUSE 28.4. - The intervention decree shall neither affect the
regular course of business of the Concessionaire, nor its normal functioning. It
shall, however, occasion the immediate dismissal of its management.
CLAUSE 28.5. - The function of temporary administrator may fall to an
executive of ANATEL, a specifically appointed person, collegial body or a
company, and the Concessionaire shall assume the cost of remuneration.
(S) 1 - ANATEL may have recourse the intervening party to act on its
behalf.
(S) 2 - The temporary administrator shall issue reports and be
responsible for its acts.
(S) 3 - For acts of alienation and disposal of the assets of the
Concessionaire, the temporary administrator requires the prior authorization of
ANATEL.
CLAUSE 28.6. - Intervention shall not be decreed if ANATEL deems it
unnecessary.
SOLE PARAGRAPH - Intervention shall be deemed unnecessary under the
circumstances set forth in (S) 1 of clause 26.4 above, as well as under those
provided for in Art. 114, paragraph IV of Law No. 9,472 of 1997.
CHAPTER XXIX - ADMINISTRATIVE EXPROPRIATIONS AND IMPOSITIONS
CLAUSE 29.1. - In the event public easements or expropriations need to
be carried out in order to implement, provide or update the service granted
hereby, such tasks shall be handled entirely by the Concessionaire, and ANATEL
must submit proposals to the President of the Republic requesting the issuance
of declarations of public interest.
CHAPTER XXX - ARBITRATION
CLAUSE 30.1. - Any disputes that may arise over the application and
interpretation of the terms of the concession shall be resolved by ANATEL
through the exercise of its function
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<PAGE>
as a regulatory body, in accordance with the provisions of Articles 8 and 19 of
Law No. 9,472 of 1997. The Concessionaire may only evoke the arbitration
proceeding provided for in this Chapter if it disagrees with a ruling by ANATEL
on the following topics:
I - Infringement of the right of the Concessionaire to protect its
economic situation, as set forth in Chapter XII;
II - Rate revision, as provided for in Chapter XII; and
III - Compensation owed upon the termination of this Agreement,
including reverted assets.
SOLE PARAGRAPH - The submission of any issue to arbitration does not
exempt ANATEL and the Concessionaire from the obligation to comply fully with
this Agreement, nor does it permit the interruption of the activities associated
with the concession.
CLAUSE 30.2. - Arbitration proceedings shall be initiated when one
party sends notice to the other, requesting the establishment of the Arbitration
Tribunal provided for in this Chapter, and detailing the issue which is the
topic of controversy.
SOLE PARAGRAPH - ANATEL may reject the establishment of the
Arbitration Tribunal if it can justifiably demonstrate that the dispute is not
included in the list of topics provided for in clause 30.1.
CLAUSE 30.3 - The Arbitration Tribunal shall be composed of 5 (five)
members, appointed as follows:
I - 2 (two) members, and their respective alternates, chosen by the
Board of Directors of ANATEL from among specialists in the areas
pertaining to the disputed matter, and who are not ANATEL employees.
At least one of them, who shall preside over the proceedings, shall
have specific knowledge of the legal regulation of telecommunications;
II - 2 (two) members, and their respective alternates, chosen by the
Concessionaire, from among specialists in the areas pertaining to the
disputed matter, and who are not ANATEL employees. At least one of
them shall have specific knowledge of the legal regulation of
telecommunications; and
III - 1 (one) member, and his or her respective alternate, chosen by
the members referred to in the preceding paragraphs.
(S) 1 - The Arbitration Tribunal may be assisted by whatever technical
experts it finds suitable to appoint.
(S) 2 - The Tribunal shall be considered constituted on the date when
all arbitrators accept their appointments and notify both parties of their
acceptance.
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<PAGE>
(S) 3 - The Tribunal shall adjudicate on the basis of established law,
and its rulings shall have cogent force, independent of judicial homologation.
CLAUSE 30.4 - If it has not been rejected by ANATEL, or if such
arguments have been overcome, the Proceedings dealt with in this Chapter shall
be initiated, and the following procedures shall be observed:
I - The parties shall have 10 (ten) days as of receiving the notice
discussed at the beginning of the preceding clause in which to choose
the members of the Arbitration Tribunal, which shall be established as
soon as all of its members demonstrated their accepted;
II - In the event one of the parties fails to act, or offers
resistance to the establishment of the Arbitration Tribunal, the other
party may avail itself of the right provided for in Art. 7 of Law No.
9,307 of September 23, 1996;
III - Once the Arbitration Tribunal has been established, the parties
shall each have 25 (twenty-five) days to present their arguments
concerning the disputed matter and may use this opportunity to present
reports, surveys, and opinions, as well as any other documents or
information which they feel are relevant in supporting their position;
IV - Once the briefs have been presented, the Tribunal shall analyze
the arguments and may, at the request of one of its members, order the
elaboration of reports, surveys or opinions, and request information
or documents from the parties. In addition, the Tribunal may make any
other investigation or take any other measures it deems necessary to
obtain optimal information about the disputed matter;
V - During the gathering of the items referred to in the preceding
paragraph, the parties shall always be permitted to make and refute
arguments in keeping with the principles of informality, consensus and
celerity which shall govern the proceeding;
VI - Once the preliminary fact-finding period has been declared
closed, the parties shall be granted a common 15 (fifteen) day period
in which to present their closing arguments;
VII - Once the period mentioned above has elapsed, regardless of the
presentation of the final arguments, the Tribunal shall issue its
ruling within 30 (thirty) days;
VIII - The ruling of the Arbitration Tribunal may not be appealed,
except for petitions for reconsideration, which are only suitable in
cases when a ruling is approved with a mere one-vote majority; and
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IX - Invalidation of arbitration proceedings shall only be allowed
under the circumstances provided for in Art. 32 of Law No. 9,307/96.
SOLE PARAGRAPH - The expense of the arbitration process, including the
cost of reports, opinions and surveys, as well as the fees of the Tribunal
members, shall either be charged to the Concessionaire or to ANATEL, depending
upon the ruling of the Arbitration Tribunal.
CHAPTER XXXI - APPLICABLE LEGAL SYSTEM
CLAUSE 31.1. - Without prejudice to the norms inherent in the
Brazilian legal system, this concession is governed by Law No. 9,472 of July 16,
1997 and by the regulations resulting therefrom, particularly those issued by
Executive Authority in accordance with the provisions of Art. 18 of the above-
mentioned Law, and they always take precedence over conflicting standards.
CLAUSE 31.2. - When providing the service conceded herein, national
telecommunications policy and the regulations of ANATEL must be observed and
considered an integral part of this Agreement, particularly the following
related documents:
I - General Concession Plan;
II - General Plan on Universal Service;
III - General Plan on Quality;
IV - General Regulations for Telecommunications Services;
V - Regulations for Switched, Fixed-line Telephone Service;
VI - General Regulations for Interconnection;
VII - Numbering Regulations for Switched, Fixed-line Telephone
Service;
VIII - Numbering Administration Regulations; and
IX - Regulations for Compensation for Network Usage of Providers of
Switched, Fixed-line Telephone Service.
CLAUSE 31.3. - When interpreting the standards and provisions
contained within this Agreement, general rules of interpretation and the
standards and principles of Law No. 9, 472 of 1997 must be taken into account,
in addition to the documents referred to in the preceding item.
CHAPTER XXXII - VENUE
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<PAGE>
CLAUSE 32.1. - In order to resolve disputes stemming from this
Agreement which cannot be resolved through the dispute-resolution process in
Chapter XXX Arbitration, the Federal District Court of Brasilia (Foro da Secao
Judiciaria da Justica Federal de Brasilia, Distrito Federal) shall have
competent jurisdiction.
CHAPTER XXXIII - FINAL AND GENERAL PROVISIONS
CLAUSE 33.1. - The Agreement signed herewith shall enter into force as
soon as its abstract is published in the official government daily journal
(Diario Oficial da Uniao).
SOLE PARAGRAPH - The Concessionaire shall have 6 (six) months as of
the publication of the regulations referred to in clause 31.2, which are
expected to have been completely published by December 31, 1998, before being
required to comply fully with the obligations set forth in this Agreement.
In order to signify their full acceptance of the provisions and terms
of this Agreement, the parties hereby execute it in triplicate, before witnesses
who also execute it, in order that this Agreement take legal and judicial
effect.
Brasilia, May 26, 1998.
ANATEL:
__________________________
__________________________
Concessionaire:
__________________________
__________________________
Witnesses:
__________________________
Name:
ID:
__________________________
Name:
ID:
46
<PAGE>
ANNEX 1
CLASSIFICATION OF REVERTIBLE ASSETS USED
TO PROVIDE
DOMESTIC LONG-DISTANCE,
SWITCHED, FIXED-LINE TELEPHONE SERVICE
A) Infrastructure and equipment used for switching and transmission, including
public terminals;
B) Infrastructure and equipment used in the external network;
C) Infrastructure and equipment used for energy and air conditioning;
D) Infrastructure and equipment used by assistance and service centers;
E) Infrastructure and equipment used in operations support systems;
F) Other items required to provide the service.
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ANNEX 2
BASIC DOMESTIC LONG-DISTANCE SERVICE PLAN
1 - General
1.1 - The Basic Domestic Long-Distance Service Plan is governed by the
administrative rulings cited in this annex, by other regulations in effect and
any succeeding regulations.
1.2 - The rates presented are maximums, net of payroll and income taxes.
2 - USAGE OF DOMESTIC LONG-DISTANCE, SWITCHED, FIXED-LINE TELEPHONE SERVICE
2.1 - The billing structure for Domestic Long-Distance Service takes into
account the distance between the billing areas where a call is originated and
where it is received, the duration of the call, the type of call made, and the
time of day of the call.
2.2 - The locations which are the centers of the billing areas have been
approved by Administrative Decree No. 195 of March 30, 1994, issued by the
Ministry of Communications.
2.3 - The billing unit is one tenth of a minute (i.e., six seconds), in
accordance with Administrative Decree No. 219 of April 2, 1997, issued by the
Ministry of Communications.
2.4 - The minimum billed increment is one minute for direct-dialed calls and
three minutes for manual calls, as set forth in Standard No. 003/81 and restated
by Administrative Decree No. 297 of November 29, 1995, issued by the Ministry of
Communications.
2.5 - The Basic Rate (BR) of this service, as determined by Administrative
Decree No. 226 of April 3, 1997, issued by the Ministry of Communications, is
R$0.18 (eighteen centavos), which corresponds to one minute during the normal
period (NP) for the greatest distance indicated in the Rate Table below.
2.6 - Per-minute rates shall be limited to the amounts set forth in the table
below, on the basis of the distance between the centers of billing areas and the
time of the call:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Normal Period
Premium ---------------- Discount Super-Discount
Level Distance Multiplier Period R$ (NP) R$ Period R$ Period R$
- --------- ------------------ --------------- --------------- ---------------- -------------- --------------
- -----------------------------------------------------------------------------------------------------------------
(2xNP) (1xNP) (0.50xNP) (0.25xNP)
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
DC Local 0.128 0.04608 0.02304 0.01152 0.00576
- -----------------------------------------------------------------------------------------------------------------
D1 Up to 50 Km 0.300 0.10800 0.05400 0.02700 0.01350
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Normal Period
Premium ---------------- Discount Super-Discount
Level Distance Multiplier Period R$ (NP) R$ Period R$ Period R$
- --------- ------------------ --------------- --------------- ---------------- -------------- --------------
- -----------------------------------------------------------------------------------------------------------------
(2xNP) (1xNP) (0.50xNP) (0.25xNP)
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
D2 Between 50 and 0.500 0.18000 0.09000 0.04500 0.02250
100 Km
- -----------------------------------------------------------------------------------------------------------------
D3 Between 100 and 0.750 0.27000 0.13500 0.06750 0.03375
300 Km
- -----------------------------------------------------------------------------------------------------------------
D4 Over 300 Km 1.000 0.36000 0.18000 0.09000 0.04500
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
2.7 - Billing periods have been established by Standard No. 003/81, and restated
by Administrative Decree No. 297 of November 29, 1995, as per the following
table:
- -------------------------------------------------------------------------
Period Monday - Friday Saturday Sunday and Holidays
=========================================================================
Midnight to 6 am super-discount super-discount super-discount
- -------------------------------------------------------------------------
6 am to 7 am discount discount discount
- -------------------------------------------------------------------------
7 am to 9 am normal normal discount
- -------------------------------------------------------------------------
9 am to Noon premium normal discount
- -------------------------------------------------------------------------
Noon to 2 pm normal normal discount
- -------------------------------------------------------------------------
2 pm to 6 pm premium discount discount
- -------------------------------------------------------------------------
6 pm to 9 pm normal discount discount
- -------------------------------------------------------------------------
9 pm to Midnight discount discount discount
- -------------------------------------------------------------------------
2.8 - No additional charges may be levied upon the above-defined amounts,
regardless of call length.
2.9 - Manual calls shall be billed in keeping with the criteria established in
Standard No. 003/81, restated in Administrative Decree No. 297 of November 29,
1995.
3 - CALLS TO MOBILE CELLULAR SERVICE
3.1 - The billing criteria and procedures for mobile cellular calls are
regulated by Standard No. 23/96, approved by Administrative Decree No. 1536 of
November 4, 1996, issued by the Ministry of Communications.
3.2 - The billing unit is one tenth of a minute (i.e., six seconds).
3.3 - The minimum billing increment is 30 (thirty) seconds.
3.4 - Administrative Decree No. 2503 of December 20, 1996, issued by the
Ministry of Communications, has determined the maximum per-minute rates, as
shown in the table below:
NORMAL RATE DISCOUNT RATE
- -------------------------------------------------------
VC-2 VC-3 VC-2 VC-3
- -------------------------------------------------------
0.58000 0.66000 0.40600 0.46200
- -------------------------------------------------------
3.5 - The discount period for calls to Mobile Cellular Service shall be from
Monday through Saturday from midnight to 7 a.m. and from 9 p.m. to midnight, and
all day Sundays and
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<PAGE>
holidays, as set forth in Standard No. 23/96, approved by Administrative Decree
No. 1,536 of November 4, 1996, issued by the Ministry of Communications.
50
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
As independent auditors, we hereby consent to the use in this
Registration Statement on Form 20-F, dated September 18, 1998, for Tele Centro
Sul Participacoes S.A. of our report dated July 17, 1998 relating to the
consolidated financial statements of Tele Centro Sul Participacoes S.A. for the
years ended December 31, 1995, 1996 and 1997 and as of December 31, 1996 and
1997.
/s/ KPMG Peat Marwick
Sao Paulo, Brazil
September 18, 1998
