TIW has filed suit to cancel the transfer of Previ?s equity holding in Telpart to Newtel because of alleged irregularities. The petition was filed Friday, December 13, with the 2nd Corporate Court in Rio de Janeiro. If successful, the Canadian-owned telco will regain control of Telemig Celular and Amazônia Celular from Opportunity. Alongside pension funds Previ, Petros and Telos, Opportunity controls Newtel, which in turn controls Telpart, with a share of 51%. Telpart is the holding company for Telemig Celular and Amazônia Celular. Without Previ?s stake, Newtel would own only 37% of Telpart and TIW, with 49%, would again be the controlling shareholder. In filing suit TIW listed several irregularities in the procedures by which Previ acquired its original holding in Newtel. The main allegations relate to the dates of certain documents. In its official explanations to Anatel, the telecoms regulator, Newtel said the equity transfer was completed at the end of 1998. Anatel approved the change of ownership structure on January 21, 1999. Ten days later Anatel Resolution 101 introduced stricter rules on equity changes. TIW?s petition to the court claims that the transfer to Newtel of Previ?s holding in Telpart was actually completed only in June 1999 and that the dates on the documents filed with Anatel in January 1999 are false. Here are some examples of the irregularities cited by TIW:
a) According to Newtel, Previ became a shareholder by buying a small amount of shares (980 at 1 Brazilian Real each) before the extraordinary general meeting held on September 28, 1998, to approve a capital increase with preemptive rights for the pension funds. However, TIW claims that the first time Newtel listed on SOMA, Brazil?s organized over-the-counter market, was October 29. TIW also argues that records show acquisition of 980 shares by Previ only on December 9. It claims the date of the first EGM is false because Previ couldn?t have taken part in Newtel?s capital increase if it wasn?t a shareholder at the time.
b) Again according to Newtel, a second EGM was held on October 21, 1998, approving another capital increase following payment of the second and third installments of the price bid for the two cellular operators at privatization. TIW says the minutes of the first and second EGM were filed with the Rio de Janeiro State Commercial Registry (Jucerja) on December 15. Minutes of EGMs must be registered within 30 days according to Law 8934/94.
c) The person who signed the EGM minutes for Previ, João Bosco Madeira da Costa, was its investment director until December 3, 1998. Because TIW believes Previ became a shareholder in Newtel after that date, it claims the EGMs must have taken place after his term of office expired, so he wasn?t legally entitled to sign the minutes.
d) The document whereby Previ canceled subscription for shares in Telpart on behalf of Newtel is dated October 1998 and signed by Derci Alcântara, a director of Previ who didn?t take office until December 6 and therefore couldn?t have signed the document in October. TIW states in its suit that the document was actually signed in January 1999.
e) According to TIW, records held by the clearing house of the São Paulo Stock Exchange (Bovespa/CLC) show Previ completed the transfer to Newtel of its equity in Telpart in June 1999, five months after Anatel Resolution 101 was published.
f) According to TIW, there is no evidence that CVM, Brazil?s securities and exchange regulator, was advised of Previ?s purchase of stock in Newtel within the time limit stipulated in law. Nor was the relevant department of the Federal Government (the pension fund department, Secretaria de Previdência Complementar).
TIW claims to have been forced out of the group of controlling shareholders and as a result to have suffered 20% depreciation of its holding in Telpart. In its petition it asks the court to ?declare legally null and void all the transactions that culminated in the transfer of Telpart stock held by Previ to Newtel?. The case will be heard by Judge Rosa Maria Cirigliano Maneschy. Previ declined to comment, saying its attorneys hadn?t had time to see the papers. Opportunity also declined to comment.
Dossier
TELETIME News has learned that many of TIW?s allegations are in a dossier that contains copies of dozens of documents and has been circulating for months in the business community and newsrooms. The dossier suggests Newtel?s creation was riddled with irregularities involving signatures of unauthorized persons and adulterated dates. There?s no proof that the copies of the documents in the dossier are authentic. The Telpart shareholder agreement was drafted before Newtel was set up by the law firm Motta, Fernandes Rocha Advogados. One of its partners was Luiz Leonardo Cantidiano. Mr Cantidiano is currently on leave of absence from the firm because he?s the president of CVM.
