1
EXHIBIT 10.26
INFOCOM COMMUNICATIONS NETWORK, INC.
RESTRUCTURING AGREEMENT
FOODCAMP INDUSTRIES AND MARKETING, INC.
This Restructuring Agreement (the "Agreement") is made as of the 2nd
day of April, 1998 by and among Foodcamp Industries and Marketing, Inc., a
Philippine corporation ("Foodcamp"), Xxxx Xxxx Siong, a Philippine citizen,
Nextel International, Inc., a Washington corporation ("Nextel"), Top Mega
Enterprises Ltd., a Hong Kong corporation and indirect wholly owned
subsidiary of Nextel ("Top Mega"), and Infocom Communications Network, Inc.,
a Philippine corporation (the "Company").
RECITALS
A. Foodcamp has loaned to the Company a total of PP19,991,293.00 and
U.S.$1,532,874.66 as set forth on Schedule A attached hereto (the "Advances").
B. Under the bylaws of the Company adopted at the time that Top Mega
became a stockholder of the Company and under the Stockholders Agreement (the
"Stockholders Agreement") dated as of June 21, 1996 by and among the Company
and the stockholders of the Company (the "Stockholders"), Top Mega has no
involvement in the day-to-day management, operations and financial control of
the Company. The Stockholders have agreed to make certain changes to the
corporate governance of the Company as set forth in the amended bylaws of the
Company, this Agreement and similar agreements with other Stockholders (the
"Other Restructuring Agreements") that, in compliance with Philippine law,
together will give Top Mega certain limited veto rights over the management
of the Company, and in consideration therefor, Nextel has agreed to purchase
certain loans to the Company from certain of the Stockholders set forth on
Schedule B hereto (the "Stockholder Loans").
C. On February 8, 1998, Foodcamp sold to Nextel approximately 25% in
principal amount of the Advances (the "Initial Advances"), and certain
accrued interest thereon, pursuant to a Loan Purchase and Amendment Agreement
by and among Foodcamp, Nextel and the Company (the "Loan Purchase
Agreement"). Foodcamp now desires to sell to Nextel, and Nextel desires to
purchase from Foodcamp, the remaining approximately 75% in principal amount
of the Advances (the "Remaining Advances"), as well as the unpaid balance of
the outstanding accrued interest on the Initial Advances, if any, on the
terms and conditions set forth herein.
2
D. Foodcamp, Nextel and the Company desire to document and convert
the Remaining Advances into a promissory note convertible into Common Stock
of the Company pursuant to the terms hereof and thereof (the "Note").
E. Nextel is simultaneously herewith purchasing certain advances
from Gotesco Properties Inc. ("Gotesco") and Jetcom Inc. ("Jetcom") on terms
and conditions substantially similar to the terms and conditions set forth
herein.
F. The parties hereto desire to make certain other agreements
relating to the corporate governance of the Company.
AGREEMENT
In consideration of the mutual promises contained herein and other good
and valuable consideration, receipt of which is hereby acknowledged, the
parties to this Agreement agree as follows:
1. Purchase of Remaining Advances.
1.1 Purchase. Subject to the terms and conditions of this
Agreement, Nextel agrees to purchase at the Closing and Foodcamp agrees to
sell to Nextel the Remaining Advances having a principal amount of
U.S.$1,524,902.69, all in accordance with the Deed of Assignment attached
hereto as Exhibit A. The purchase price (the "Purchase Price") of the
portion of the Advances purchased hereunder shall be the equivalent of
U.S.$1,524,902.69, payable in Philippine Pesos. To the extent that Nextel
did not pay the full amount of accrued interest on the Initial Advances as of
the date of the purchase of such Advances under the Loan Purchase Agreement,
Nextel shall pay at the Closing the amount of any such deficit. To the
extent that Nextel paid in excess of the full amount of accrued interest on
the Initial Advances as of the date of the purchase of such Advances under
the Loan Purchase Agreement, the Purchase Price shall be reduced by the
amount of any such excess payment. Simultaneously with the Closing, the
Company shall pay Foodcamp all interest accrued on the Remaining Advances.
1.2 Closing; Delivery. The closing of the transactions
contemplated hereby (the "Closing") shall take place on April 9, 1998, or on
such other date as Foodcamp and Nextel mutually agree, following the
satisfaction or waiver of the conditions to the Closing set forth in Section
4, at the offices of the Company, 16/F, Centerpoint Building, Xxxxx Xxxxxx
Avenue, Ortigas Center, Pasig, M.M., Republic of Philippines. At the
Closing, Foodcamp shall deliver to each of the Company and Nextel the Deed of
Assignment, which shall be duly acknowledged by the Company and Nextel,
against payment of the Purchase Price by Nextel on or before Closing by check
or by wire transfer to Foodcamp's bank account.
1.3 Currency Adjustment. The parties hereto will use their
reasonable best efforts to arrange a back-to-back currency conversion to
reduce or eliminate to the extent possible any foreign exchange risks
relating to the conversion of Nextel's payment to Foodcamp from U.S. Dollars
to Pesos and the conversion by Foodcamp of such amount from Pesos to U.S.
-2-
3
Dollars. If the parties are unable to arrange such a back-to-back
conversion, then within one day after the receipt of the Peso payment by
Foodcamp from Nextel, Foodcamp shall convert the Purchase Price into U.S.
Dollars at the most favorable rate reasonably obtainable by Foodcamp. If the
sum of (a) the U.S. Dollar amount so received by Foodcamp and (b) the U.S.
Dollar amount received by Foodcamp upon conversion of the Philippine Peso
amount paid by Nextel for the Initial Advances (together, the "Dollar
Amount") is less than U.S.$2,070,749.63 as the result of a decline in the
U.S. Dollar - Peso exchange rate of more than one Peso from the actual
exchange rate received by Nextel upon conversion of the Purchase Price to
Pesos, Nextel shall make an adjustment payment to Foodcamp, payable in U.S.
Dollars, equal to the difference between 75% of U.S.$2,070,749.63 and 75% of
the Dollar Amount. If the Dollar Amount is greater than U.S.$2,070,749.63 as
the result of an appreciation in the U.S. Dollar - Peso exchange rate of more
than one Peso from the actual exchange rate received by Nextel upon
conversion of the Purchase Price to Pesos, Foodcamp shall make an adjustment
payment to Nextel, payable in U.S. Dollars, equal to the difference between
75% of the Dollar Amount and 75% of U.S.$2,070,749.63. This adjustment
mechanism shall not apply if Foodcamp shall not have converted the Purchase
Price to U.S. Dollars one day after its receipt of payment from Nextel.
1.4 On the nine-month anniversary of the date hereof (the
"True-up Date"), Nextel shall or shall cause one of its Affiliates to pay to
Foodcamp an amount in cash (such amount being denominated, at Nextel's
option, in either Pesos or U.S. Dollars) equal to the loss, if any, suffered
by Foodcamp with respect to the Advances originally made in Pesos as a result
of the devaluation of the Peso, calculated with respect to each such Advance
on the difference between (a) the average of the buy and sell rates for the
Peso against the U.S. Dollar as published by The Chase Manhattan Bank N.A.
for the date such Advance was made, and (b)(i) 40 Pesos per U.S. Dollar or
(ii) if it results in a lower or no payment to Foodcamp, the average of the
buy and sell rates for the Peso against the U.S. Dollar as published by The
Chase Manhattan Bank N.A. for the five business days that are three business
days prior to the True-Up Date.
2. Amendment of Note.
(a) Simultaneously with the Purchase, the Company shall issue
the Note in favor of Nextel in the form attached as Exhibit B, to be
convertible, at the election of the holder thereof, into the number of shares
of Common Stock of the Company (the "Common Stock") determined as set forth
in the Note.
(b) The parties hereto agree that Section 2(a) of the
Convertible Subordinated Promissory Note dated February 9, 1998 issued in
connection with the Loan Purchase Agreement is hereby amended and restated to
read in its entirety as follows:
"(a) AT THE HOLDER'S OPTION. At the Holder's option, all
or any amount of the principal of and accrued interest on
this Note and any other convertible promissory notes issued
by the Company which the Holder and the holders of any such
other convertible notes shall have elected to convert
(together with this Note, the "Notes") may at any time be
-3-
4
converted into that number of shares of Common Stock of the
Company equal to the number of outstanding shares of Common
Stock immediately prior to conversion multiplied by a
fraction with the numerator being the amount of principal
of and interest on the Notes (together, the "Conversion
Amount") and the denominator being the Company Valuation
(as defined below); provided that if the Philippine Peso
shall have depreciated against the U.S. Dollar between the
date hereof and the date of conversion, the numerator in
the preceding clause shall be multiplied by a fraction
having a numerator equal to the average of the buy and sell
exchange rate for the Philippine Peso against the U.S.
dollar as published by The Chase Manhattan Bank, N.A. as of
the close of business on the day prior to such conversion
and a denominator equal to forty (40). The "Company
Valuation" shall initially be PP3,400,000,000 minus, if the
Company sells or otherwise transfers its paging business
and if a dividend or other distribution of any or all of
the proceeds from such transfer shall have been provided to
the Company's stockholders, the valuation of such business
at the time of such transfer as determined in good faith by
the Company's Board of Directors. If the paging business
is valued in U.S. dollars, such valuation will be converted
into Philippine Pesos at a 40 to 1 exchange rate; provided
that if the Philippine Peso shall have depreciated against
the U.S. dollar below such rate, such valuation will be
converted into U.S. dollars at the average of the buy and
sell exchange rate for the Philippine Peso against the U.S.
dollar as published by the Chase Manhattan Bank, N.A. as of
the date of such transfer."
3. Representations and Warranties of Foodcamp.
To induce Nextel to enter into this Agreement, Foodcamp represents and
warrants to Nextel as of the date hereof and as of the Closing Date (which
representations and warranties shall survive the Closing for two years) that:
3.1 Organization, Good Standing and Qualification. Foodcamp is
a Philippine corporation duly organized, validly existing and in good
standing under the laws of the Republic of the Philippines and has all
requisite corporate power and authority to carry on its business as now
conducted and as proposed to be conducted.
3.2 Due Execution and Binding Effect. All action on the part
of Foodcamp necessary to perform this Agreement and the transactions
contemplated hereby and thereby, including without limitation any consent or
authorization of any spouse required by Philippine or other law, has been
taken. This Agreement has been duly executed and delivered by Foodcamp and
is a legal, valid and binding obligations of Foodcamp, enforceable in
accordance with its terms.
3.3 No Approvals or Notices Required; No Conflicts With
Instruments. The execution, delivery and performance of this Agreement, and
the Deed of Assignment by
-4-
5
Foodcamp and the consummation of the transactions contemplated hereby and
thereby do not and will not (a) constitute a violation (with or without the
giving of notice or lapse of time, or both) of any law, rule, regulation,
judgment, injunction, order or decree applicable to Foodcamp, (b) require any
consent, approval or authorization of any person, governmental authority or
other organization or entity or (c) result in a default under, an
acceleration or termination of, or the creation in any party of the right to
accelerate, terminate, modify or cancel, or in any other way materially
affect the rights of Foodcamp under, any material agreement, lease, note or
other restriction, encumbrance, obligation or liability to which Foodcamp is
a party or by which Foodcamp is bound or to which the assets (whether real or
personal, tangible or intangible) of Foodcamp are subject.
3.4 Remaining Advances. The credit arising under each of the
Remaining Advances is owned by Foodcamp free and clear of any and all liens,
deeds of trust, usufructs, charges, security interests, encumbrances or other
adverse claims of any kind. Foodcamp has good and marketable title to each
of the credits covered by the Remaining Advances. No Person has any right of
first refusal or option to acquire any interest in any of the Remaining
Advances or any part thereof, and Foodcamp has not sold or contracted to sell
any of the credits covered by the Remaining Advances or any part thereof or
interest therein other than as set forth herein. The obligation to repay
each of the Remaining Advances is a legal, valid and binding obligation of
the Company, enforceable in accordance with the terms described above.
Foodcamp has disclosed and Nextel is aware that the herein assigned credit is
subordinated to the loan accounts of the Company from Motorola, Inc. By the
execution of this Agreement, Nextel agrees to be bound to all the terms and
conditions of the said loan accounts of the Company to Motorola, Inc.
4. Representations, Warranties and Covenants of the Company. The
Company hereby represents, warrants and covenants to Nextel as of the date
hereof and as of the Closing Date (which representations and warranties shall
survive the Closing for two years) that:
4.1 Organization, Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing under
the laws of the Republic of the Philippines and has all requisite corporate
power and authority to carry on its business as now conducted and as proposed
to be conducted.
-5-
6
4.2 Authorization. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement and the
authorization, sale, issuance and delivery of the Note, the shares of the
Company's capital stock issuable on conversion thereof, and the performance
of all obligations of the Company hereunder and thereunder has been taken or
will be taken prior to the Closing. This Agreement and the Note, when
executed and delivered by the Company, shall constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws
of general application affecting enforcement of creditors' rights generally,
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
4.3 Issuance of Shares. The Company hereby agrees to take all
action necessary to duly issue shares of the Company's Common Stock to the
holder of the Note upon due surrender of such Note to the Company.
4.4 Financial Condition of the Company. The financial
statements of the Company as of December 31, 1997 and for any subsequent
period prior to the date of Closing delivered to Nextel are accurate and
present fairly the financial position and results of operations of the
Company as of the dates and for the periods indicated therein in accordance
with Philippine generally accepted accounting principles consistently
applied, and there shall have been no material change in the financial
condition of the Company since December 31, 1997.
5. Corporate Governance. Notwithstanding anything to the contrary
contained in the Stockholders Agreement, the parties hereto agree as follows:
5.1 Board of Directors.
(a) Election of Directors.
The Company's Board of Directors (the "Board") shall be
composed of eleven (11) members. In elections of directors of the Company,
each of Foodcamp and Nextel shall vote for the following candidates, whom the
Board and the Stockholders shall take all necessary steps to nominate:
(i) Three candidates who shall be designated by
Nextel (the "Nextel Directors"), one of whom shall initially be Xxxx Xxxx
("Post");
(ii) Three candidates who shall be designated by
Jetcom, two of whom shall initially be General Xxxxxxx X. Xxxxxx ("Aquias")
and Xxxxxxx X. Xxxxxxx ("Asperin");
(iii) One candidate who shall be designated by Xxxxx
Link Holdings Ltd.;
-6-
7
(iv) Two candidates who shall be designated jointly
by the Foodcamp and Gotesco, who shall initially be Xxxx Xxxx Siong and Xxxx
X. Go;
(v) Two candidates who shall be designated by
mutual agreement of the Stockholders, who shall be the Chief Executive
Officer of the Company and the Chief Financial Officer of the Company. The
Chief Financial Officer of the Company shall be duly and validly elected to
the Board within 60 days of the Closing.
(b) Xxxxxxx Xxxx.
If at any time Xxxxxxx Xxxx is no longer a member of the
Board but directly or indirectly is a stockholder of the Company, Nextel, Top
Mega, and Foodcamp will vote in favor of a proposal to permit Xxxxxxx Xxxx to
attend all meetings of the Board as an observer.
(c) Quorum.
A quorum for any meeting of the Directors shall consist of
six (6) Directors, at least one of whom shall be a Nextel Director.
5.2 Executive Committee. The Board shall appoint an Executive
Committee consisting of five Directors, one (1) of whom shall be appointed by
Nextel. The Executive Committee shall be comprised of the President of the
Company (initially, Aquias), the Chief Executive Officer, the Chief Financial
Officer, the General Manager of Paging (initially, Asperin) and one person
designated by Nextel (initially, Post). If any such officer position is
unfilled, such officer's position on the Executive Committee will remain
vacant until such officer position is filled. All decisions of the Executive
Committee shall be made by a majority vote of at least three members,
including in all cases the member of the Executive Committee nominated by
Nextel.
5.3 Officers. Nextel shall be entitled to nominate the
following officers and managers of the Company: the Chief Executive Officer,
the Chief Financial Officer, the General Manager of Paging, the General
Manager of iDEN, the Deputy General Manager of Paging, the Deputy General
Manager of iDEN, the Controller and any other officer or manager as Nextel
deems appropriate. Each Stockholder hereby agrees to vote its Common Stock
or to cause its Common Stock to be voted in order to give effect to such
nomination.
5.4 Stockholder and Director Approvals. Each of Foodcamp and
Nextel hereby agrees to vote its Common Stock or to cause its Common Stock to
be voted to approve the following matters and any actions reasonably required
thereby and to cause the Director(s) nominated by such Stockholder (in whole
or in part) to approve such matters:
(a) The 1998-1999 Business Plan attached hereto as
Exhibit C;
(b) The Credit Agreement attached hereto as Exhibit D and
each borrowing under the Credit Agreement authorized by the Nextel Directors;
-7-
8
(c) The conversion of the Remaining Advances into loans
evidenced by convertible promissory notes.
(d) The removal or termination of any of the Company's
employees, employment agreements, consultants, consultant agreements and
agreements with any Stockholder or Affiliate (as defined below) of any
Stockholder, in each case as may be designated by Nextel from time to time.
"Affiliate" of any Person (the "Subject") means any other Person that,
directly or indirectly, Controls or is Controlled by or is under common
Control with the Subject.
"Control" (including, with correlative meanings, the terms "Controlled
by" and "under common Control with"), as used with respect to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities or by contract or otherwise.
"Person" means any individual, partnership, joint-stock company, firm,
corporation, association, unincorporated organization, joint venture, trust
or other entity.
5.5 Stockholders Agreement. Except as expressly provided in
this Agreement, the parties hereto hereby agree to remain bound by the terms
of the Stockholders Agreement and each party hereto hereby acknowledges that
the Stockholders Agreement remains in full force and effect.
5.6 Financial Controls. The Company shall make and keep books,
records and accounts which, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of the Company. The
Company shall maintain a system of internal accounting controls that provide
reasonable assurances that (a) transactions are executed in accordance with
management's general or specific authorization, (b) transactions are recorded
in such a way as to allow preparation of reports that are in conformity with
generally accepted accounting principles, (c) access to assets is permitted
only in accordance with management's general or specific authorization and
(d) recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
5.7 Management. Except as provided in Sections 5.1(a)(ii) and
5.2 and in conformity with the Bylaws, the parties hereto shall ensure that
the officers, directors, affiliates, employees and agents of the Stockholders
(other than employees of Nextel assigned to the Company as consultants) will
not participate in the day-to-day management, operations and financial
control of the Company, and that the duly appointed officers of the Company,
assisted by duly engaged consultants, will have sole responsibility for the
day-to-day management, operations and financial control of the Company.
6. Loans. The Company shall use its best efforts to only enter into
loan agreements or other obligations on a nonrecourse basis. However, if the
Company or any of its subsidiaries shall enter into a financing arrangement
that is duly approved by the Board and that is for the
-8-
9
exclusive benefit of the Company or any of its subsidiaries, with a lender
other than Nextel or its Affiliates, then (a) each of Nextel and Foodcamp and
each of their respective Affiliates shall take all actions necessary to
permit the Company to obtain such financing and, if required by the lender,
shall individually guarantee a portion of such financing, not to exceed such
Stockholder's pro rata portion (as defined below) of such loan or other
obligation, and (b) if Nextel or Foodcamp and their respective Affiliates
shall have agreed to pledge the Shares owned by them, each of the other
Stockholders that are parties hereto and their respective Affiliates shall
simultaneously pledge the Shares owned by them on the same terms and
conditions as the pledging Stockholder and its Affiliates and, if necessary,
execute a power of attorney over such Shares in favor of the lender or such
other entity as the lender may designate in order to comply with the
requirements for the delivery of the Shares by the debtor to the lender or
such other entity as the lender may designate in guarantee of such financing
arrangement.
For purposes of this Agreement, a Stockholder's pro rata portion shall
be the proportion that the number of shares of Common Stock such Stockholder
owns or Controls immediately prior to the time of calculation bears to the
total number of Shares of outstanding (including in each case shares of
Common Stock and Common Stock issuable upon the conversion of convertible
securities (other than options) of the Company).
7. Exceptions from Restrictions on Transfer. Notwithstanding
anything contained in the Stockholders Agreement to the contrary, the parties
hereto agree that (a) Nextel and its Affiliates may Transfer (as defined in
the Stockholders Agreement) to any third party any convertible promissory
notes or other convertible evidence of indebtedness of the Company or any
Shares issued upon conversion of such notes or other indebtedness without
complying with the provisions of the Stockholders Agreement, (b) a
Stockholder may Transfer Shares to any of its Affiliates so long as such
Transfer would not cause the Company, as determined by the Board in its sole
discretion, to be in violation of Philippine law, including, without
limitation, the Anti-Dummy Law and (c) each such party waives any and all
rights that it may have under the Stockholders Agreement, the Bylaws or
Philippine law with respect to the transactions contemplated by this
Agreement, the Loan Purchase Agreement and the Credit Agreement, including
but not limited to, the right of first refusal with respect to the sale and
transfer of the Stockholder Loans which such party may have pursuant to
Section 5 of the Stockholders Agreement or otherwise.
8. Further Restrictions on Transfer. The parties hereto agree that,
as between them, Section 5.6 of the Stockholders Agreement shall not be
enforceable.
9. Capital Contributions. Neither Nextel nor Foodcamp shall be
required to make capital contributions or shareholders loans to the Company;
provided that if any Stockholder makes a capital contribution to the Company,
the Company shall issue to such Stockholder shares of Common Stock
representing a percentage ownership of the Company (excluding any convertible
securities) equal to (a) the amount of such capital contribution in U.S.
Dollars as of the date of such capital contribution divided by (b) the sum of
3,400,000,000 Pesos and the U.S. Dollar amount of any capital contributions
since the date hereof, including such capital contribution, all converted
into U.S. Dollars based on the average of the buy and sell rates for the
-9-
10
Peso against the U.S. Dollar as published by The Chase Manhattan Bank N.A. as
of the date of such capital contribution. If any Stockholder makes any loans
to the Company, such loans shall be made in accordance with the Credit
Agreement.
10. Nextel Holders' Promissory Notes. During the period ending on
the three-month anniversary of the Closing date, neither Nextel nor any
affiliate or transferee of Nextel shall convert any promissory note or other
evidence of indebtedness convertible into equity securities of the Company
into such equity securities.
11. Conditions to Nextel's Obligations at Closing. The obligations
of Nextel to Foodcamp under this Agreement are subject to the fulfillment, on
or before the Closing, of each of the following conditions, unless otherwise
waived:
11.1 Representations and Warranties. The representations and
warranties of Foodcamp contained in Section 3 and of the Company contained in
Section 4 shall be true on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of the
date of the Closing.
11.2 Qualifications. All authorizations, approvals or permits,
if any, of any governmental authority or regulatory body of the Republic of
the Philippines or any other government that are required in connection with
the lawful sale and transfer of the Remaining Advances covered by the Note
pursuant to this Agreement and the changes in corporate governance provided
under this Agreement shall be obtained and effective as of the Closing. All
requisite corporate approvals for the transactions contemplated hereby shall
be obtained by the Company and Foodcamp, as the case may be, and shall be
effective as of Closing.
11.3 Conversion to Note. The conversion of the Remaining
Advances into the Note set forth in Section 2 hereof shall be effective
simultaneously with the Closing.
11.4 Documentary Stamp Tax. The Company shall have paid any
documentary stamp tax payable in connection with the issuance of the Note.
11.5 Signature Authority. Each party hereto shall have provided
to the others a certificate, duly notarized, documenting the signature
authority of the individual executing this Agreement on such party's behalf.
11.6 Ownership of Advances. The Company shall have provided a
certificate to Nextel confirming Foodcamp's full ownership of the Remaining
Advances immediately prior to the Closing.
11.7 Stock Certificate Legend. Each certificate representing
shares of the Company held by Foodcamp and Xxxx Xxxx Siong shall bear a
legend substantially as set forth in Section 13.3 hereof.
-10-
11
11.8 Bylaws. The Amended Bylaws of the Company adopted at the
January 16, 1998 meeting of the Board shall be duly, properly and effectively
registered with the Philippine Securities and Exchange Commission and shall
remain in force.
11.9 Restructuring Agreements. Each of the Other Restructuring
Agreements shall have been entered into by the respective parties thereto.
11.10 No Reversion. Nextel shall have been provided each of the
original Directors Certificates (as described in the Infocom Escrow Agreement
dated as of March 24, 1998), and the right of the Company to amend the Bylaws
as described in such Directors Certificates shall have terminated.
11.11 Business Activities Policy. The Company shall have adopted
Nextel's International Business Activities Policy and shall have agreed to
initiate a training program for the Company's employees to implement such
policy.
11.12 Pledge Agreement. Jetcom shall have entered into the
Pledge Agreement substantially in the form of Exhibit E and shall have
tendered share certificates to Nextel and an assignment separate from
certificate as required thereby.
12. Indemnification by Foodcamp. Foodcamp irrevocably and
unconditionally agrees to indemnify and hold harmless, on an after-tax basis,
Nextel and the Company, and their respective successors and permitted
assigns, and the officers, directors, affiliates, employees, controlling
persons and agents of the foregoing, and to hold each such party harmless
against and in respect of any and all losses, damages, costs and expenses,
including reasonable attorneys' fees incurred by any such party, directly as
a result of the breach of any of the representations or warranties made in
this Agreement by Foodcamp. No party indemnified hereunder shall settle any
claim without the consent of Foodcamp, which consent shall not be
unreasonably withheld, unless such settlement would not require any action or
payment by Foodcamp. If a claim that would entitle Nextel to indemnification
hereunder is brought against Nextel in a forum other than a court of the
Philippines, Nextel will use its best efforts to file a motion for forum non
conveniens or a similar motion to permit the transfer of jurisdiction to a
court located in the Philippines.
13. Miscellaneous.
13.1 Term; Termination. If the Closing shall not have
occurred on or before April 15, 1998, this Agreement shall terminate and be
of no further force and effect and the By-Laws shall revert to their original
form and language as of January 15, 1998.
This Agreement shall terminate automatically upon and simultaneously
with termination of the Stockholders Agreement and shall be automatically
renewed upon renewal of the Stockholders Agreement, unless terminated by the
mutual agreement of the parties hereto.
13.2 Specific Enforcement. Each party hereto expressly agrees
that the other parties hereto will be irreparably damaged if this Agreement
is not specifically enforced. Upon a
-11-
12
breach or threatened breach of the terms, covenants and/or conditions of this
Agreement by any party hereto, each of the other parties hereto shall, in
addition to all other remedies, be entitled to a temporary or permanent
injunction, without showing any actual damage, and/or a decree for specific
performance, in accordance with the provisions of this Agreement.
13.3 Legend. Each certificate evidencing any Shares subject to
this Agreement shall bear a legend substantially as follows:
The securities represented by this certificate are
subject to the terms and conditions of a
Restructuring Agreement dated as of April 2, 1998, as
at any time amended, and may not be sold, transferred
or encumbered except in accordance with the terms and
provisions of said Agreement, a copy of which is on
file at the principal executive office of the Company
and will be furnished to the holder of this
certificate upon request and without charge.
13.4 Notices. Notices given hereunder shall be deemed to have
been duly given on the date of personal delivery, on the date of facsimile
transmittal (provided the address or confirms receipt of any facsimile by
addressee), on the day after delivery by overnight courier or three days
after mailing if mailed by certified or registered mail, return receipt
requested, postage prepaid, to the party being notified at his or her address
specified on the applicable signature page or such other address of which the
addressee may subsequently notify the other parties in writing.
13.5 Entire Agreement; Amendments and Waivers. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and neither this Agreement nor any provision hereof may be
waived, modified, amended or terminated except by a written agreement
approved by holders of seventy-five percent (75%) of the Common Stock held by
the parties hereto. No waiver of any breach or default hereunder shall be
considered valid unless in writing, and no such waiver shall be deemed a
waiver of any subsequent breach or default of the same or similar nature.
13.6 Successors and Assigns; Governing Law. The terms and
conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties. Nextel may assign
any of its rights or obligations hereunder or under the Note without the
consent of Foodcamp. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations,
or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the
Republic of Philippines without giving effect to principles of conflicts of
law.
13.7 Headings. The headings of the sections of this Agreement
are for convenience of reference only and shall not by themselves determine
the interpretation of this Agreement.
-12-
13
13.8 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of
which together shall constitute one and the same instrument.
13.9 Severability. If any provision of this Agreement shall be
held to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any
manner affect or render illegal, invalid or unenforceable any other provision
of this Agreement, and this Agreement shall be carried out as if any such
illegal, invalid or unenforceable provision were not contained herein.
13.10 Confidentiality. Each party hereto shall keep
confidential, and shall not make use of, any information treated by another
party as confidential (including, without limitation, the existence of this
Agreement) and obtained from such other party concerning the assets,
properties, business or operations of such other party other than to legal
counsel, consultants, financial advisors, key employees, lenders and
investment bankers where such disclosure is related to the performance of
obligations under this Agreement or the consummation of the transactions
contemplated under this Agreement (all of whom shall be similarly bound by
the provisions of this Section 13.10), without the prior written consent of
the other party. Notwithstanding the foregoing, the foregoing
confidentiality restrictions shall not apply to any information which
(a) becomes generally available to the public through no fault of the
receiving party or its employees, agents or representatives; (b) is
independently developed by the receiving party without benefit of the
above-described information (and such independent development is
substantiated in writing), or rightfully received from another source on a
non-confidential basis; (c) when such disclosure is required by a court or
governmental authority or is otherwise required or permitted by law
(including, without limitation, filings required to be made with the U.S.
Securities and Exchange Commission or any other governmental or regulatory
agency or disclosure documents provided to investors in private placements
having disclosure requirements similar to those of a registered public
offering in the United States) or is necessary to establish rights under this
Agreement or any agreement contemplated hereby (and the disclosing party has
taken all reasonable efforts to limit the scope of such disclosure and to
protect the confidential nature of the information disclosed).
13.11 Dispute Resolution.
(a) Arbitration. All disputes arising out of or in
connection with this Agreement or the performance hereof shall be resolved by
submission to binding arbitration under the Rules for Arbitration of the Hong
Kong International Arbitration Centre (the "HKIAC").
(b) Notice of Demand for Arbitration. Notice of demand
for arbitration shall be filed in writing with the other party and with the
ICC. In no event shall the demand for arbitration be made after the date
when the applicable statute of limitations under Philippine law would bar
institution of a legal or equitable proceeding based on such claim, dispute
or other matter in question.
-13-
14
(c) Arbitration Proceedings. Unless the parties agree
otherwise, the arbitration hearing shall be conducted in Hong Kong, in the
English language, before a single arbitrator appointed by consensus among the
parties. The arbitrator shall be selected from a list of arbitrators
provided by the HKIAC promptly following the filing of the notice for demand
of arbitration. If the parties cannot agree upon a single arbitrator within
fifteen calendar days following the HKIAC's delivery of its list of qualified
arbitrators, then the arbitrator shall be appointed by the Executive Director
of the HKIAC. The arbitrator shall issue a reasoned opinion in writing
promptly upon the conclusion of the hearings.
(d) Finality. The decision rendered by the arbitrators
shall be final, and judgment may be entered upon it in accordance with
applicable law in any court having jurisdiction thereof.
(e) Parallel Actions. The parties acknowledge that any
arbitration commenced and conducted under this Section can only involve and
bind the parties to this Agreement. However, to the extent that any
individuals or companies not a party to this Agreement are involved in a
dispute involving or arising from this Agreement, the parties expressly agree
that (i) parallel judicial or arbitration actions against such non-parties
may be commenced in an appropriate forum and (ii) the parties to this
Agreement shall cooperate in resolving such disputes with non-parties, and
shall not obstruct or delay such actions, it being the express intent of the
parties that a complete resolution of any dispute among the parties and their
affiliates may require multiple actions.
[Signature page follows]
-14-
15
The parties have executed this Restructuring Agreement as of the date
first written above.
FOODCAMP:
FOODCAMP INDUSTRIES AND MARKETING, INC.
By: /s/ Xxxx Xxxx Siong
--------------------------------
Name: Xxxx Xxxx Siong
------------------------------
Address:
Facsimile Number:
Witness:
---------------------------
Name:
XXXX XXXX SIONG
By: /s/ Xxxx Xxxx Siong
--------------------------------
Address:
Facsimile Number:
NEXTEL:
NEXTEL INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------
Title: Vice President
-----------------------------
Address: 0000 Xxxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
U.S.A.
Facsimile Number: (000) 000-0000
TOP MEGA ENTERPRISES LTD.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------
Title: Vice President
-----------------------------
Address: c/o Nextel International, Inc.
0000 Xxxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
U.S.A.
Facsimile Number: (000) 000-0000
SIGNATURE PAGE TO RESTRUCTURING AGREEMENT
16
COMPANY:
INFOCOM COMMUNICATIONS NETWORK, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------
Title:
-----------------------------
Address: 16/F, Centerpoint Building
Xxxxx Xxxxxx Avenue
Ortigas Center, Pasig, M.M.
Republic of Philippines
Facsimile Number: (00 0) 000 0000
SIGNATURE PAGE TO RESTRUCTURING AGREEMENT
