EXHIBIT 10.1
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this
“ Agreement ”) is entered into by and among, on
the one side:
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I.
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ARVANA PARTICIPAÇÕES
S.A. , a corporation
incorporated and existing under the laws of Brazil, with its head
office at Av. Brigadeiro Faria Lima, 1571, 13.º andar, cj.
13B, São Paulo, SP, enrolled at the Corporate Taxpayers
Registry of the Ministry of Finance (CNPJ/MF) under No.
04.754.635/0001-35 (hereinafter referred to as “
Arvana ”);
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and, on the other
side,
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II.
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GLOINFO 500 SOLUÇÕES
EM TELEMÁTICA LTDA. , a Brazilian limited company incorporated and
existing under the laws of Brazil, with its head office at Av.
Pres. Wilson, 228, 2.º andar, Rio de Janeiro, RJ, enrolled at
the Corporate Taxpayers Registry of the Ministry of Finance
(CNPJ/MF) under No. 03.721.699/0001-77 (hereinafter referred to as
“ Global ”); and
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III.
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PAULO SANTOS
MESSINA , Brazilian,
married, businessman, identity card No. 10.244.809-9 IFP, enrolled
at the General Taxpayers Roll (CPF/MF) under No. 051.561.257-00,
and his spouse, LÚCIA SANGIACOMO MESSINA , Brazilian,
married, physician, identity card No. 05971064-0 IFP, enrolled at
the General Taxpayers Roll (CPF/MF) under No. 972.605.767-15, both
resident and domiciled at Av. Marechal Ramon Castilla, 199, apt.
203 – Botafogo, in Rio de Janeiro, RJ (hereinafter
collectively referred to as “ PM ”);
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(Arvana, Global and PM are herein
also individually referred to as a “ Party ”
and, collectively, as “ Parties ”.)
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and, as intervening and
additional parties,
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IV.
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ARVANA COMUNICAÇÕES
DO BRASIL S.A. , a
corporation incorporated and existing under the laws of Brazil,
with its head office at Av. Brigadeiro Faria Lima, 1571, 13.º
andar, cj. 13C, São Paulo, SP, enrolled at the Corporate
Taxpayers Registry of the Ministry of Finance (CNPJ/MF) under No.
07.103.201/0001-63 (hereinafter referred to as the “
Company ”);
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V.
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ARVANA NETWORKS,
INC. , a corporation
incorporated and existing under the laws of Barbados, with its head
office at Suite 3, The Brick House, Bay St., St. Michael, Barbados
(hereinafter referred to as “ Networks ”);
and
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VI.
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TURINCO, INC
., a corporation organized and
existing under the laws of the State of Nevada, with its head
office at 1981 East 4800 South, Suite 100, Salt Lake City, Utah
84117, United States of America (hereinafter referred to as "
Turinco " and, together with the Company and Networks, the
“ Intervening-Parties ”).
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WHEREAS:
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A.
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The Parties and the
Intervening-Parties entered into an Investment Agreement, dated
September 8, 2005, as amended on October 4, 2005 (the “
Investment Agreement ”), whereby they regulated the
making of certain investments in the Company in order to develop
and provide voice services based on the voice over internet
protocol (VOIP) technology;
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B.
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As a consequence of the
Investment Agreement, Arvana invested and became a shareholder of
the Company, so that on the date hereof, after completion of part
of the transactions contemplated by
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the Investment Agreement, Global holds 25%
(twenty-five percent) and Arvana holds 75% (seventy-five percent)
of the Company’s total issued and outstanding capital;
and
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C.
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The expectations of the Parties
in relation to their investments in the Company and, particularly,
the development of the VOIP market in Brazil have not been
fulfilled, and the Parties wish to terminate the Investment
Agreement, end up their association and, subject to the terms of
this Agreement, regulate the consequences of the actions so far
taken under the Investment Agreement and certain other
matters.
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NOW
THEREFORE, the parties agree to enter into this Agreement in
accordance with the following terms and conditions:
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1.
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TERMINATION OF THE INVESTMENT
AGREEMENT; RELEASE
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The Parties hereby terminate the
Investment Agreement. Without prejudice to the rights and
obligations set forth in this Agreement, each of the Parties hereby
irrevocably and unconditionally grants the others and the
Intervening-Parties full, ample, general acquittal and release (
plena, rasa e geral quitação e
exoneração ), for nothing else to claim, in the
present or the future, for whatever reason.
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2.
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REDEMPTION OF GLOBAL’S
PARTICIPATION
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2.1
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Current
Shareholdings
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As of the date hereof, the
Company’s issued and outstanding capital is R$ 392.800,00
(three hundred ninety-two thousand and eight hundred reais),
divided into 392,800 (three hundred ninety-two thousand eight
hundred) shares, of which 274,960 (two hundred seventy-four
thousand nine hundred sixty) are common shares and 117,840 (one
hundred seventeen thousand eight hundred forty) are preferred
shares, distributed between Global and Arvana as
follows:
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(a)
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Global holds 98,200 (ninety-eight
thousand two hundred) shares, representing in the aggregate 25%
(twenty-five percent) of the Company’s total issued and
outstanding capital, of which 27,221 (twenty-seven thousand two
hundred twenty-one) are common shares and 70,979 (seventy thousand
nine hundred seventy-nine) are preferred shares (collectively,
“ Global Shares ”); and
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(b)
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Arvana holds 294,600 (two hundred
ninety-four thousand six hundred) shares, representing in the
aggregate 75% (seventy-five percent) of the Company’s total
issued and outstanding capital, of which 247,739 (two hundred
forty-seven thousand seven hundred thirty-nine) are common shares
and 46,861 (forty-six thousand eight hundred sixty-one) are
preferred shares.
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The Company has a capital reserve
in the amount of R$ 4,705,400.00 (four million seven hundred five
thousand four hundred reais), of which R$[1,651,074.00(one million
six hundred fifty-one thousand seventy-four reais)] have been
funded.
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2.2
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Redemption of Global’s
shares
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The Parties agree to cause the
Company to redeem all of Global Shares. In order to implement such
redemption, within 2 (two) business days from the date hereof,
Arvana and Global shall hold a extraordinary shareholders’
meeting ( assembléia geral extraordinária ) of the
Company (the “ First STAGE ”) at which they
shall vote and approve creation of a new class of redeemable
preferred shares (“ Preferred Shares Class B ”)
and the conversion of all Global Shares into such Preferred Shares
Class B, with the remaining preferred shares being renamed
“Preferred Shares Class A”. The Preferred Shares Class
B shall have no voting rights and shall have priority in the
reimbursement of capital, with no premium, and shall be redeemable
at any time by the Company, for a price of R$1.00 (one real) per
share. Within 2 (two) business days from the First AGE, Arvana and
Global shall hold another extraordinary shareholders’ meeting
( assembléia geral extraordinária ) of the Company
(the “ Second STAGE ”) at which they shall vote
and approve the redemption of all Preferred Shares Class B, all of
which shall then be held by Global, without capital reduction, with
use of the existing capital reserve of the Company mentioned in
Section 2.1. The redemption price shall be R$98,200.00
(ninety-eight thousand two hundred reais) (the “
Redemption Price ”).
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2.3
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Shareholders’
Agreement
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Upon the redemption of Global
Shares as set forth in Section 2.2, the Shareholders’
Agreement entered into by Global and Arvana on October 6, 2005
shall be automatically terminated and the Company shall take all
necessary measures in order to register such termination in its
appropriate corporate book.
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3.
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OTHER
AGREEMENTS
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3.1
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Assets Contributed by
Global
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Within 2 (two) business days from
the Second AGE, Company shall sell to Global, and Global shall
acquire from the Company, all of the assets contributed by Global
to the Company’s capital as per the extraordinary
shareholders’ meeting of the Company held on September 2,
2005 (the “ Transferred Assets ”) (which were
then appraised at R$93.200,91 (ninety-three thousand two hundred
reais and ninety-one cents), for their book value. Global and the
Company shall execute any instrument or documents and shall take
such other actions as necessary or otherwise reasonably requested
to implement the purchase and sale of the Transferred Assets set
forth herein.
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3.2
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No Transfer of the
Operation
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Except for the
“Televoz” trademark and website (described in Annex
3.2), Global shall no longer transfer or assign to the Company the
trademarks “Intervoz” and “Televoz” or its
operation, businesses, rights and agreements relating to the
development and provision of the services provided under such
trademarks (the “ Operation ”), including the
operational agreements, client agreements, agency agreements for
the sale of ISP, and rights relating to services of Global’s
platform (3 Way Calling, Do not Disturb, Conference Call, Detailed
Billing, Unlimited Free IntraCall), as originally contemplated by
provided for in the Investment Agreement.
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3.3
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Transfer of
“Televoz” Trademark and Website
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Global and the Company shall
execute all instruments and documents necessary to for Global to
transfer to the Company, unconditionally and at no cost to the
Company, the “Televoz” trademark and website. Global
and the Company shall take such other actions as necessary to
implement such transfer, including for the proper recordation of
the ownership of the Company with the Brazilian Patent Office
(INPI) and any other appropriate entity. Global hereby represents
and warrants that the “Televoz” trademark and website
are free and clear of any and all liens, encumbrances, debts,
obligations and liabilities, whether known or unknown. Global shall
remain fully and exclusively liable for all past debts, obligations
and liabilities relating to “Televoz” trademark and
website.
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3.4
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Customers
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Global shall retain all
“Intervoz” and “Televoz” customers
[existing on February 28, 2006], and shall be responsible for
providing the contracted services to these customers and shall be
liable for any and all expenses incurred in providing such
services, including any expense necessary for the operation of the
SIP/VoIP technology platform identified in Annex 3.4 (“
Platform ”), such as connectivity, interconnection and
termination expenses.
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3.5
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Platform
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Subject to the terms of the
equipment lease agreement attached hereto to as Schedule 3.5, for
the period beginning on March 1, 2006 and ending on or before
February 28, 2007, the Company shall allow Global the continued use
of the Platform, which is installed and operating in Global’s
data center, free of charge. Prior to the end of such term, Global
shall have transferred all customers connected to the Platform to
another platform, owned or controlled by Global, and at that time,
Global shall return the Platform to the Company, releasing it and
allowing its prompt removal. In case Global does not return the
Platform to the Company within the term set forth herein, Global,
without prejudice to any rights of the Company, includ
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