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EXHIBIT 10.28
INFOCOM COMMUNICATIONS NETWORK, INC.
RESTRUCTURING AGREEMENT
JETCOM INC.
This Restructuring Agreement (the "Agreement") is made as of the 2nd day
of April, 1998 by and among Jetcom Inc., a Philippine corporation ("Jetcom"),
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. Jetcom has loaned to the Company a total of PP84,797,772.20 and
U.S.$9,890,177.26 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. Jetcom desires to sell to Nextel, and Nextel desires to purchase from
Jetcom, all of the outstanding principal amount of the Advances.
D. Jetcom, Nextel and the Company desire to document and convert the
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
Foodcamp Industries and Marketing, Inc. ("Foodcamp") and Gotesco Properties Inc.
("Gotesco") on terms and conditions substantially similar to the terms and
conditions set forth herein.
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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 Advances.
1.1 Purchase. Subject to the terms and conditions of this Agreement,
Nextel agrees to purchase at the Closing and Jetcom agrees to sell to Nextel the
Advances having a principal amount of PP84,797,772.20 and U.S.$9,890,177.26, 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.$9,890,177.26, payable in Philippine
Pesos, plus PP84,797,772.20. Simultaneously with the Closing, the Company shall
pay Jetcom all interest accrued on the 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 Jetcom 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, ▇▇▇▇▇ ▇▇▇▇▇▇ Avenue, Ortigas Center, Pasig, M.M.,
Republic of Philippines. At the Closing, Jetcom 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 Jetcom'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 Jetcom from U.S. Dollars to Pesos and the
conversion by Jetcom of such amount from Pesos to U.S. 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 Jetcom from Nextel, Jetcom shall convert the
Purchase Price into U.S. Dollars at the most favorable rate reasonably
obtainable by Jetcom. If the U.S. Dollar amount so received by Jetcom is less
than U.S.$31,089,620.31 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 Jetcom, payable in U.S. Dollars, equal to the difference
between U.S.$31,089,620.31 and the U.S. Dollar amount actually received by
Jetcom. If the U.S. Dollar amount so received by Jetcom is greater than
U.S.$31,089,620.31 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, Jetcom shall make an
adjustment payment to Nextel, payable in U.S. Dollars, equal to the difference
between the U.S. Dollar amount actually received by Jetcom and
U.S.$31,089,620.31. This adjustment
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mechanism shall not apply if Jetcom shall not have converted the Purchase Price
to U.S. Dollars one day after its receipt of payment from Nextel.
2. Amendment of Note. 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.
3. Representations and Warranties of Jetcom.
To induce Nextel to enter into this Agreement, Jetcom 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. Jetcom 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 Jetcom
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 Jetcom and is a legal, valid and binding
obligations of Jetcom, 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 Jetcom 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 Jetcom, (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 Jetcom under, any material agreement, lease, note or other
restriction, encumbrance, obligation or liability to which Jetcom is a party or
by which Jetcom is bound or to which the assets (whether real or personal,
tangible or intangible) of Jetcom are subject.
3.4 Advances. The credit arising under each of the Advances is owned by
Jetcom free and clear of any and all liens, deeds of trust, usufructs, charges,
security interests, encumbrances or other adverse claims of any kind. Jetcom has
good and marketable title to each of the credits covered by the Advances. No
Person has any right of first refusal or option to acquire any interest in any
of the Advances or any part thereof, and Jetcom has not sold or contracted to
sell any of the credits covered by the Advances or any part thereof or interest
therein other than as set forth herein. The obligation to repay each of the
Advances is a legal, valid and binding obligation of the Company, enforceable in
accordance with the terms described above. Jetcom has disclosed and Nextel is
aware that the herein assigned credit is subordinated
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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.
3.5 Conversion of Note. Neither the Company nor any stockholder of the
Company other than Jetcom has any obligations or will incur any liability to any
third party as a result of the conversion of the Note to Common Stock of the
Company.
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.
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.
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The Company's Board of Directors (the "Board") shall be composed of
eleven (11) members. In elections of directors of the Company, each of Jetcom
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 ▇▇▇▇ ▇▇▇▇ ("Post");
(ii) Three candidates who shall be designated by Jetcom, two
of whom shall initially be General ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Aquias") and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ("Asperin");
(iii) One candidate who shall be designated by ▇▇▇▇▇ Link
Holdings Ltd.;
(iv) Two candidates who shall be designated jointly by the
Foodcamp and Gotesco, who shall initially be ▇▇▇▇ ▇▇▇▇ Siong and ▇▇▇▇ ▇. 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) ▇▇▇▇▇▇▇ ▇▇▇▇.
If at any time ▇▇▇▇▇▇▇ ▇▇▇▇ is no longer a member of the Board but
directly or indirectly is a stockholder of the Company, Nextel, Top Mega, and
Jetcom will vote in favor of a proposal to permit ▇▇▇▇▇▇▇ ▇▇▇▇ 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
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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 Jetcom 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;
(c) The conversion of the 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
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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 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 Jetcom 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 Jetcom 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, (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 and the Credit Agreement, including but not
limited to, the right
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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, and (d) if any event occurs which results in the aggregate number of
Shares owned by a foreigner, as determined in accordance with Philippine law in
the reasonable discretion of the Company, being less than the maximum foreign
ownership permitted by Philippine law, as determined in the reasonable
discretion of the Company, then Jetcom shall be permitted to Transfer Shares to
a foreign Affiliate of Jetcom until such maximum foreign ownership threshold is
reached.
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 Jetcom 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 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 Jetcom 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 Jetcom 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 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 Jetcom, as the case may be, and shall be effective as of Closing.
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11.3 Conversion to Note. The conversion of the 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 Jetcom's full ownership of the Advances
immediately prior to the Closing.
11.7 Stock Certificate Legend. Each certificate representing shares of
the Company held by Jetcom and ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ shall bear a legend
substantially as set forth in Section 13.3 hereof.
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 Jetcom. Jetcom 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 Jetcom. No party
indemnified hereunder shall settle any claim without the consent of Jetcom,
which consent shall not be unreasonably withheld, unless such settlement would
not require any action or payment by Jetcom. If a claim that would entitle
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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 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
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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 Jetcom. 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.
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
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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.
(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.
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[Signature page follows]
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The parties have executed this Restructuring Agreement as of the date
first written above.
JETCOM:
JETCOM INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Address:
Facsimile Number:
Witness:
Name:
NEXTEL:
NEXTEL INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Title: Vice President
----------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S.A.
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
TOP MEGA ENTERPRISES LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Title: Vice President
----------------------------
Address: c/o Nextel International,
Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S.A.
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
SIGNATURE PAGE TO RESTRUCTURING AGREEMENT
15
COMPANY:
INFOCOM COMMUNICATIONS
NETWORK, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title:
----------------------------
Address: 16/F, Centerpoint Building
▇▇▇▇▇ ▇▇▇▇▇▇ Avenue
Ortigas Center, Pasig, M.M.
Republic of Philippines
Facsimile Number: (▇▇ ▇) ▇▇▇ ▇▇▇▇
SIGNATURE PAGE TO RESTRUCTURING AGREEMENT
