EXHIBIT 99
OPTION PURCHASE AND SALE AGREEMENT
THIS OPTION PURCHASE AND SALE AGREEMENT ("Agreement") is entered into
on March 20, 1997 by and among Nextel Communications, Inc., a Delaware
corporation ("NCI"), Unrestricted Subsidiary Funding Company, a Delaware
corporation and a wholly-owned subsidiary of NCI ("USFC"; and USFC, together
with NCI, collectively referred to as "Nextel"), Comcast Corporation, a
Pennsylvania corporation ("CC") and Comcast FCI, Inc., a Delaware corporation
and a wholly-owned subsidiary of CC ("CFCI"; and CFCI, together with CC,
collectively referred to as "Comcast").
RECITALS
Nextel and Comcast have entered into a Memorandum of Agreement to
which a form of this Agreement is attached on March 18, 1997 providing for,
among other things, the purchase by USFC and the sale by CFCI of a certain
Option Agreement by and between Fleet Call, Inc., predecessor by merger to
NCI, and CFCI, originally entered into on September 14, 1992 and amended and
restated as September 11, 1995, and as otherwise amended and supplemented to
the Closing Date (as defined herein) (such Option Agreement, as so amended,
restated and supplemented, the "Option").
Subject to the terms and conditions set forth herein, USFC desires to
purchase, and CFCI desires to sell, the Option, and Nextel and Comcast desire
to set forth herein their agreements with respect to certain related matters.
NOW, THEREFORE, the parties agree as follows:
1. Purchase and Sale of Option. Subject to the terms and
conditions set forth herein, USFC shall purchase from CFCI, and CFCI shall
sell and transfer to USFC, the Option, free and clear of all Liens, for an
aggregate purchase price of Twenty Five Million Dollars ($25,000,000.00).
Such purchase price shall be paid by wire transfer to an account previously
designated by CFCI to USFC in writing, against delivery of USFC of the Option
in form appropriately endorsed by CFCI for transfer in blank. Such payment
and delivery shall occur simultaneously with the execution and delivery of
this Agreement by the parties.
2. Representations, Warranties and Covenants of Comcast. Comcast
hereby represents and warrants to Nextel as follows:
(a) CFCI is a corporation duly organized, validly existing
and in good standing under the laws of Delaware;
(b) each of CC and CFCI have the requisite power and
authority to enter into and perform this Agreement and the transactions
contemplated hereby, and have taken all requisite corporate and shareholder
action in connection therewith. This Agreement has been duly executed and
delivered by each of CC and CFCI, and constitutes a legal, valid and binding
obligation of each of them enforceable in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles;
(c) Neither the execution, delivery or performance of this
Agreement, or the consummation of the transactions contemplated herein, will
violate or conflict with the articles or by-laws (or similar constitutive
documents) of either of CC or CFCI, or any Requirements of Law applicable to
either of them, or any material contract to which either of them is a party or
by which either of them or their respective properties is bound, or requires
that any consent, approval, waiver or report be obtained, made or filed with
any third party (including, without limitation, any Governmental Authority) by
or on behalf of CC, CFCI or any of their controlling Persons; and
(d) CFCI is a wholly-owned subsidiary of Comcast, and is the
sole record owner and holder of the Option and all rights and interests
therein, and the Option is not subject to any Lien, nor has any third party
been promised any interest therein or rights with respect thereto (unless such
promised interests or rights have been terminated with the agreement of any
such third party prior to the date hereof).
3. Representations, Warranties and Covenants of Nextel. Nextel
hereby represents and warrants to Comcast as follows:
(a) USFC is a corporation duly organized, validly existing
and in good standing under the laws of Delaware;
(b) each of NCI and USFC have the requisite power and
authority to enter into and perform this Agreement and the transactions
contemplated hereby, and have taken all requisite corporate and shareholder
action in connection therewith. This Agreement has been duly executed and
delivered by each of NCI and USFC, and constitutes a legal, valid and binding
obligation of each of them enforceable in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles;
(c) Neither the execution, delivery or performance of this
Agreement, or the consummation of the transactions contemplated herein, will
violate or conflict with the articles or by-laws (or similar constitutive
documents) of either of NCI or USFC, or any Requirements of Law applicable to
either of them, or any material contract to which either of them is a party or
by which either of them or their respective properties is bound, or requires
that any consent, approval, waiver or report be obtained, made or filed with
any third party (including, without limitation, any Governmental Authority) by
or on behalf of NCI, USFC or any of their controlling Persons;
(d) USFC is a wholly-owned subsidiary of NCI and has liquid
assets having a value in excess of the amount of the purchase price that are
not subject to any material restrictions on usage that do or reasonably would
be expected to make such liquid assets unavailable as a source of funds for
payment of the purchase price for the Option as contemplated herein, and will
not be rendered insolvent as a result of the consummation of the transactions
contemplated herein; and
(e) As of the date hereof, there are no material agreements
between Nextel and any third party relating to the business, prospects,
financial condition or results of operations of Nextel and its subsidiaries,
taken as a whole, that have not been disclosed in the reports and other
information filed by NCI with the Securities and Exchange Commission pursuant
to the Exchange Act or otherwise publicly disclosed, and Nextel acknowledges
that Section 10(b) of the Exchange Act is applicable to the purchase and sale
of the Option hereunder.
4. Other Matters to, at and after the Closing, Nextel and Comcast
agree as follows:
(a) Registration Statement. There is currently effective a
"shelf" Registration Statement on Form S-3 (Registration No. 333-1486) filed
by NCI to register the resale of certain shares of NCI common stock owned by
Comcast (the "Registration Statement"). Nothing in this Agreement is intended
to terminate or suspend the effectiveness of such Registration Statement, or
to make such Registration Statement unavailable to Comcast for resales of any
remaining shares of NCI common stock covered thereby. Notwithstanding any
prior agreement among Nextel and Comcast, NCI shall bear all of the costs
associated with the preparation and filing, and of maintaining the
effectiveness, of such Registration Statement, other than costs arising by
reason of sales of shares of NCI common stock thereunder, including
underwriting discounts and fees, if any, which shall continue to be borne by
Comcast;
(b) Certain Closing Matters. On the date hereof,
automatically and without the need for any further action on the part of
Comcast or Nextel, the following rights arising under the SPA or the
appropriate identified other documents shall be deemed to have been
permanently and irrevocably waived and/or terminated by Comcast: (i) the
anti-dilutive rights provided pursuant to Section 1.10 of the SPA; (ii) the
right to request compliance or to enforce any of the covenants set forth in
Sections 4.1(d), 4.1(e), 4.1(f), 4.1(g) and 4.1(h) of the SPA, (iii) the
rights relating to the appointment of NCI Directors pursuant to Article V of
the SPA, (iv) the registration rights (except those relating to the
Registration Statement, as provided in Section 4(a) above) contained in
Article VII of the SPA; and (v) the entirety of the rights provided pursuant
to the Stockholders' Voting Agreement referred to in the SPA; and
(c) Certain Other Matters. Upon the earliest to occur of (i)
the date on which all remaining shares of NCI common stock covered by the
Registration Statement have been sold thereunder or (ii) the second
anniversary of the declaration of effectiveness of such Registration Statement
(or such earlier date as CC and NCI may agree is the date on which such
Registration Statement may be terminated), automatically and without the need
for any further action on the part of Comcast or Nextel, the SPA, and each of
the other agreements, instruments or documents relating thereto, including
without limitation the Transaction Agreements (but excluding the Option and
this Agreement), shall be deemed conclusively and permanently terminated and
of no further force or effect, except that the indemnification and
contribution provisions and the confidentiality provisions (including the
Confidentiality Agreements referred to in the SPA) contained or referred to in
any such agreement, instrument or document shall remain in force and shall
survive such termination unaffected, together with such procedural or general
provisions as are contemplated or required to enforce such provisions or
otherwise to give such provisions their intended effect.
5. General Provisions. (a) Headings. The headings and captions
in this Agreement are for reference only and shall not be considered in
construing this Agreement.
(b) Counterparts. This Agreement may be executed in any
number of counterparts each of which when so executed and delivered shall
constitute an original and all together shall constitute one and the same
Agreement.
(c) Communications. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received only when
delivered (personally, by courier service or by other messenger, or by
telecopy with confirmed answerback received and a copy mailed as indicated
below) against receipt or on the third Business Day after the proven date of
dispatch of such item by registered or certified mail, return receipt
requested, addressed as provided below:
(1) If to NCI or USFC: c/o Nextel Communications, Inc.
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopier Number: (000) 000-0000
with a copy to the General Counsel at the same address
(2) If to CC or CFCI: c/o Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Telecopier Number: (000) 000-0000
(d) Non-Waiver; Further Assurances. No failure or delay by
Comcast or Nextel to exercise its rights or enforce any remedies hereunder
shall be deemed to constitute or to operate as a waiver by such party of such
rights or remedies, or of any other provisions of this Agreement. Each of
Comcast and Nextel agrees that, should any party hereto request the taking of
any action or the execution and delivery of any document reasonably required
to evidence or implement all or any part of the transactions or actions
contemplated hereby, such action shall be taken, and such document shall be
executed and delivered, promptly by (and without the need of any payment to)
the party or parties receiving such a request.
(e) Definitions. All capitalized terms that are used but are
not expressly defined herein shall have the meanings assigned to such terms in
the SPA.
(f) Successors and Assigns. This Agreement shall bind and
inure to the benefit of NCI's, USFC's, CC's and CFCI's respective successors
and permitted assigns, provided that no party shall assign any of its rights
or delegate any of its obligations herein or hereunder without obtaining the
prior written consent of the others thereto, and any such purported assignment
or delegation made without obtaining such written consent shall be null and
void.
(g) Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such costs and
expenses. Nextel and Comcast each represent and warrant to the other that
they have not retained any broker or finder or any other person entitled to
claim a commission or other similar compensation in connection with the
consummation of any of the matters contemplated herein.
(h) Arbitration; Injunctive Relief. Each of Nextel and
Comcast agrees that violation of the terms of this Agreement may result in
irreparable injury to the non-violating party, and therefore mutually
acknowledge that in the event of any violation hereof, the non-violating party
shall be entitled to seek preliminary and permanent equitable relief
(including, without limitation, the remedy of specific performance and the
entry of injunctions) without being required to allege or prove the inadequacy
of monetary damages as a remedy or the fact or irreparable injury, and that
such equitable rights and remedies shall be cumulative and in addition to any
other rights or remedies to which the non-violating party may be entitled.
Unless a party is seeking equitable relief (for which an appropriate action
may be commenced in any state or federal court having jurisdiction over the
relevant parties), any controversy or claims arising out of or relating to
this agreement or the transactions contemplated hereby shall be settled by
binding arbitration to be held and conducted as provided in Section 9.16 of
the SPA.
(i) Savings Clause; Entire Agreement. If any term or
provision of this Agreement, or the application thereof to any Person or
circumstances, shall to any extent be invalid or unenforceable, the remaining
terms and provisions of this Agreement or the application thereof to other
Persons or circumstances shall not be invalidated or rendered unenforceable
thereby, and each term and provision hereof shall be construed with each other
remaining term and provision hereof to effect the intent of the parties to the
fullest extent permitted by law. This Agreement and the other writings
delivered in connection herewith contain the entire understanding of the
parties hereto with respect to the subject matter hereof, and supersede all
other prior or contemporaneous agreements and understandings, inducements or
conditions concerning such subject matter, whether express or implied, oral or
written, including, without limitation, the Memorandum of Agreement (and the
related Term Sheet attached thereto) among Nextel and Comcast entered into on
March 18, 1997.
(j) Disclosure. This Agreement, and the transactions and
actions contemplated herein, may be disclosed by the parties only to the
extent the disclosing party determines in good faith that such party may be
legally obligated to do so. The parties will coordinate in good faith to
apprise each other of the timing and content of any proposed disclosure
containing previously non-public information concerning this Agreement, or any
of the transactions or actions contemplated herein.
(k) Governing Law. This Agreement shall be construed and
enforced in accordance with and shall be governed by the laws of the
Commonwealth of Pennsylvania applicable to contracts executed by residents of,
and fully to be performed in, that state.
(l) Termination. This Agreement may be terminated by any
party by written notice to that effect given to the others if the closing of
the purchase and sale of the Option has not occurred by March 21, 1997;
provided, that such date shall be extended as reasonably requested by any
non-violating party, and no termination hereof may be effected, if such
closing has not occurred due to failure to obtain any necessary governmental
or regulatory approval; and further provided that no such notice of
termination may be given by a party whose breach, violation or non-compliance
with the applicable provisions of this Agreement is preventing such closing
from occurring. No termination of this Agreement, however effected, shall
release or relieve any party hereto from the consequences of any violation,
breach or non-compliance by such party with the terms hereof to the extent
occurring arising or accruing prior to the time of such termination.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
NEXTEL COMMUNICATIONS, INC. COMCAST CORPORATION
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Block
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UNRESTRICTED SUBSIDIARY COMCAST FCI, INC.
FUNDING COMPANY
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Block
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