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EXHIBIT 10.8
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PUT-CALL AGREEMENT
DATED AS OF JUNE 13, 1996
AMONG
ASSOCIATED SMR, INC.
WIRELESS VENTURES OF MEXICO, INC.
CARLYLE-TRICOM INVESTORS, L.L.C.
THE PERSONS AND ENTITY SET FORTH ON SCHEDULE I HERETO,
NEXTEL COMMUNICATIONS, INC. AND
NEXTEL INVESTMENT COMPANY,
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NEITHER THIS PUT-CALL AGREEMENT NOR THE SHARES DESCRIBED IN
THIS PUT-CALL AGREEMENT HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") OR UNDER THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THIS AGREEMENT
AND UNLESS EITHER (A) THEY ARE REGISTERED UNDER THE ACT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR (B) NEXTEL
INVESTMENT COMPANY HAS RECEIVED EVIDENCE SATISFACTORY TO IT
(WHICH MAY INCLUDE AN OPINION OF COUNSEL) THAT SUCH PROPOSED
DISPOSITION IS EXEMPT FROM SUCH REGISTRATION.
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TABLE OF CONTENTS Page
1. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Put Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3. Call Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. Put Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5. Put Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6. Determination of Fair Value of the Company . . . . . . . . . . . . 12
7. Payment of Put Price and Call Price . . . . . . . . . . . . . . . 15
8. Representations and Warranties . . . . . . . . . . . . . . . . . . 19
9. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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PUT-CALL AGREEMENT
PUT-CALL AGREEMENT dated as of June 13, 1996, by and among
NEXTEL COMMUNICATIONS, INC., a Delaware corporation (together with its
successors, "Nextel"), NEXTEL INVESTMENT COMPANY, a Delaware corporation and a
wholly owned subsidiary of Nextel (together with its successors, "Nextel
Investment"), ASSOCIATED SMR, INC., a Delaware corporation (together with its
successors, "Associated"), WIRELESS VENTURES OF MEXICO, INC., a Virginia
corporation (together with its successors, "WVM"), and CARLYLE-TRICOM
INVESTORS, L.L.C., a Delaware limited liability company (together with its
successors, "Carlyle", and collectively with Associated and WVM, the "Selling
Shareholders"), and the other persons and entities that become parties hereto
in accordance with the terms of Section 10(p) hereof (together with their
respective successors, the "Other Shareholders").
The parties hereto (other than the Other Shareholders), Grupo
Communicaciones San Xxxx, S.A. de C.V., a corporation organized under the laws
of Mexico (together with its successors "Grupo") and Corporacion Mobilcom, S.A.
de C.V., a corporation organized under the laws of Mexico (together with its
successors, the "Company") are parties to a Shareholders Agreement dated as of
March 3, 1995, as previously or hereafter amended (the "Shareholders
Agreement"), and the parties hereto (other than the Other Shareholders) and
Grupo and Banco del Atlantico, S.A., as Trustee, are parties to an Irrevocable
Trust Agreement dated as of March 3, 1995, as previously or hereafter amended
(the "Control Trust Agreement").
Nextel Investment, Grupo and the Company desire to consummate
certain transactions with respect to which they are executing certain
amendments to the Shareholders Agreement and the Control Trust Agreement.
The Selling Shareholders have required, as a condition to
agreeing to execute the amendments to the Shareholders Agreement and the Control
Trust Agreement and to consent to certain other transactions, that Nextel and
Nextel Investment enter into this Agreement, the provisions of which will become
effective upon the effectiveness of (i) the amendments to the Shareholders
Agreement and Control Trust Agreement, whereby Nextel Investment or its
Affiliates becomes entitled to designate a majority of the members of the Board
of Directors of the Company, and (ii) the amendments to the Control Trust
Agreement, the Shareholders Agreement and the Estatutos of the Company whereby
the Selling Shareholders are no longer entitled to take actions, as either
shareholders or through their designees on the Board of Directors, that would
enable them to prevent any of the actions listed on Exhibit A (the date and time
the amendments referred to in clauses (i) and (ii) become effective is herein
referred to as the "Effective Date").
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In consideration of the foregoing, and the representations,
covenants and agreements contained herein, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Defined Terms.
(a) As used in this Agreement, the following terms shall
have the following meanings:
"AAA" means the American Arbitration Association.
"Affiliate" means, as to any Person, any other Person (other
than the Company and its Subsidiaries) (i) that is a Subsidiary of such Person
or (ii) that directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such Person. For
the purposes of this definition, "control" when 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, by contract or otherwise; the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Associate" has the meaning set forth in Rule 12b-2 of the
Exchange Act.
"Associated" has the meaning set forth in the first paragraph
hereof.
"Beneficially Own" or "Beneficial Ownership" with respect to
any shares of capital stock means having beneficial ownership of such shares of
capital stock, including, without limitation, having ownership of the
Beneficiary Rights relating to Shares.
"Beneficiary Rights" has the meaning set forth in the Control
Trust Agreement.
"Board" and "Board of Directors" refer, unless otherwise
specified, to the Company's Board of Directors.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York are authorized or obligated to close by law or executive order.
"Call Closing" has the meaning set forth in Section 2(b)
hereof.
"Call Price" shall be equal to the Put Price determined in
accordance with Section 5, except that for purposes of paragraph (i) and clause
(x) of paragraph (ii) of Section 5(a), the
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Ownership Number of the Selling Shareholder shall be determined as of the Call
Closing Date.
"Carlyle" has the meaning set forth in the first paragraph
hereof.
"Commission" means the United States Securities and Exchange
Commission or its successor.
"Company" has the meaning set forth in the second paragraph
hereof.
"Control Trust" means the trust established under the Control
Trust Agreement.
"Control Trust Agreement" has the meaning set forth in the
second paragraph hereof.
"Current Market Price" per share of common stock of an issuer
as of the applicable Determination Date shall be deemed to be the average of
the daily closing prices per share of such common stock for the 30 consecutive
Trading Days immediately prior to such date; provided, however, that in the
event that the Current Market Price per share of such common stock is
determined during a period following the announcement by the issuer of such
common stock of (A) a dividend or distribution on such common stock payable in
shares of such common stock or securities convertible into shares of such
common stock or (B) any subdivision, combination, consolidation, reverse stock
split or reclassification of such common stock, and prior to the expiration of
the requisite 30-Trading Day as set forth above, after the ex-dividend date for
such dividend or distribution, or the record date for such subdivision,
combination, consolidation, reverse stock split or reclassification, then, and
in each such case, "Current Market Price" shall be properly adjusted to take
into account ex-dividend trading. The closing price for each such Trading Day
shall be the last sale price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices, regular way, on
the Trading Market, as reported in the principal consolidated transaction
reporting system or by the NNM with respect to securities listed or admitted to
trading on such Trading Market, respectively.
"Determination Date" means the date as of which a particular
determination, calculation or valuation is made in accordance with the provision
hereof providing for such determination, calculation or valuation as of such
date.
"Director" or "Directors" refers to a member or members of the
Board.
"Effective Date" has the meaning set forth in the fourth
paragraph hereof.
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"Equity Interest" means, as of the applicable Determination
Date and in respect of any Selling Shareholder or Other Shareholder, all of the
Shares that are Beneficially Owned by such Selling Shareholder or Other
Shareholder and its respective Affiliates that are either (x) owned as of the
date hereof or (y) acquired after the date hereof directly from the Company.
"Estatutos" means the corporate organizational and governance
documents of the Company bearing such name under Mexican legal principles.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated therein.
"Fair Value of the Company" has the meaning set forth in, and
shall be determined as provided in, Section 6 hereof.
"Fair Market Value of a Share" has the meaning set forth in,
and shall be determined as provided in, Section 5(b) hereof.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, and any entity or official
properly exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"IPO" means (x) an initial public offering of Shares in the
United States registered with the Commission pursuant to the Securities Act, as
a result of which Shares of the class(es) and series held by the Selling
Shareholders (or into which such Shares are then convertible) are listed and
traded on a United States national securities exchange (including for this
purpose the NNM) or (y) an initial public offering of Shares in Mexico, as a
result of which shares of the class(es) and series held by the Selling
Shareholders (or into which such Shares are then convertible) are listed and
traded on a Mexican national securities exchange.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien, option to purchase or sell, right of first refusal or charge
of any kind (including, without limitation, any conditional sale or other title
retention agreement and any capital lease).
"Nextel" has the meaning set forth in the first paragraph
hereof.
"Nextel Investment" has the meaning set forth in the first
paragraph hereof.
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"Nextel Stock Consideration" has the meaning set forth in
Section 7(a).
"NNM" means the Nasdaq National Market.
"Other Shareholders" has the meaning set forth in the first
paragraph hereof.
"Outstanding Shares" means, as of the applicable Determination
Date, the total number of Shares then outstanding.
"Ownership Number" means, as of the applicable Determination
Date and in respect of each Selling Shareholder or Other Shareholder, as the
case may be, the number of Outstanding Shares comprising such Selling
Shareholder's or Other Shareholder's, as the case may be, Equity Interest.
"Ownership Percentage" means, as of the applicable
Determination Date and in respect of each Selling Shareholder or Other
Shareholder, as the case may be, the percentage equivalent to a fraction
determined by dividing such Selling Shareholder's or Other Shareholder's, as
the case may be, Ownership Number by the number of Outstanding Shares.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity, of whatever nature.
"Put Closing" has the meaning set forth in Section 2(b)
hereof.
"Put Event" has the meaning set forth in Section 4 hereof.
"Put Exercise Termination Date" has the meaning set forth in
Section 2(b) hereof.
"Put Notice" has the meaning set forth in Section 2(b) hereof.
"Put Price" has the meaning set forth in, and shall be
determined as provided in, Section 5 hereof.
"Put Right" has the meaning set forth in Section 2 hereof.
"Representatives" has the meaning set forth in Section 10(l)
hereof.
"Requirement of Law" means, as to any Person, any law, rule,
regulation, order, judgment, decree or determination of any arbitrator, a court
or other Governmental Authority, in each case applicable to or binding upon
such Person or any of its
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properties or to which such Person or any of its properties is subject.
"Securities Act" means the United States Securities Act of
1933, as amended and the rules and regulations promulgated therein.
"Shares" means the shares of capital stock of the Company, in
any class or series, and any shares of capital stock of the Company issued by
way of dividend or other distribution, combination, recapitalization,
reclassification, exchange, merger, consolidation or any other change or
adjustment in respect of such capital stock, including, without limitation, any
American Depositary Receipts or Global Depositary Receipts that represent
interests in such shares of capital stock of the Company.
"Shareholder" means any Person that has Beneficial Ownership
of Shares.
"Shareholders Agreement" has the meaning set forth in the
second paragraph hereof.
"Subsidiary" of any Person, means any other Person (except, in
the case of the "Subsidiary" of any Shareholder, the Company or any of its
Subsidiaries) as to which such Person possesses, directly or indirectly, either
(i) the voting securities having more than 50% of the voting power of all then
outstanding voting securities of such other Person or (ii) the power to direct
or cause the direction of the management and policies of such other Person
whether through the ownership of voting securities, by contract or otherwise.
"Trading Day" shall mean, for purposes of calculating the
Current Market Price of an issuer's common stock, a day on which the Trading
Market with respect to such common stock is open for the transaction of
business.
"Trading Market" with respect to an issuer's common stock
means (x) the United States national securities exchange (including for this
purpose the NNM) which is the principal United States trading market for such
common stock, if such common stock is traded solely on a United States trading
market or is traded both on a United States trading market and a Mexican
national securities exchange and/or other trading markets, or (y) a Mexican
national securities exchange, if such common stock is traded on a Mexican
national securities exchange and not on a United States national securities
exchange (including for this purpose the NNM).
"Transaction Agreements" has the meaning set forth in the
Shareholders Agreement, as amended through the date hereof.
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"United States" or "U.S." means the United States of America.
"WVM" has the meaning set forth in the first paragraph hereof.
(b) Other Definitional Provisions.
(i) Any term defined in the singular shall have a
comparable meaning when used in the plural, and vice versa.
(ii) As used herein, the neuter gender shall also denote
the masculine and feminine, and the masculine gender shall also denote the
neuter and feminine, where the context so permits.
(iii) The words "hereof", "herein" and "hereunder", and
words of a similar import, when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
References to Sections shall refer to Sections of this Agreement, unless
otherwise expressly provided.
(iv) All references to "$" or "dollars" refer to United
States dollars.
(v) An amount to be paid in "$" or "dollars" shall be
paid in U.S. dollars.
2. Put Rights.
(a) Selling Shareholders Right to Put Shares. Upon the
terms and subject to the conditions of this Agreement, if and at each time that
a Put Event occurs, the Selling Shareholders shall have the collective right
(the "Put Right") to require that Nextel Investment purchase from the Selling
Shareholders, and upon exercise by the Selling Shareholders of the Put Right in
accordance with the terms hereof, Nextel Investment agrees to purchase, all,
but not less than all of, each of the Selling Shareholders' Equity Interest for
consideration equal to the Put Price.
(b) Exercise of Put Rights; Put Closings. If the Selling
Shareholders desire to exercise the Put Right, the Selling Shareholders shall,
within sixty (60) days after the occurrence of the Put Event giving rise to
such Put Right (such sixtieth day being referred to as a "Put Exercise
Termination Date"), cause the Representatives to deliver a written notice (a
"Put Notice") to Nextel Investment, identifying such Put Event and requesting
that Nextel Investment purchase each of the Selling Shareholders' Equity
Interest. Notwithstanding anything contained herein to the contrary, the
Selling Shareholders shall under no circumstances be permitted to cause the
Representatives to deliver a Put Notice after 1155 days after the Effective
Date. Each Put Notice shall specify a place and date not earlier than
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thirty (30) nor later than ninety (90) days from the date such Put Notice is
given for the closing of such purchase (a "Put Closing"), provided that such
date shall be deferred to the later of (i) ten days after the date of obtaining
any consents or approvals of any Governmental Authority which are required by
any Requirement of Law to effect the transfer to Nextel Investment of such
Selling Shareholder's Equity Interest in accordance with this Section 2(b),
(ii) if Nextel Investment elects to make payment using Nextel Common Stock, the
date a registration statement is declared effective permitting resales of such
Nextel Common Stock for a thirty (30) day period thereafter (provided that if
the Representatives deliver a notice to Nextel Investment that the Selling
Shareholders are willing to receive Nextel Common Stock without there being an
effective registration statement under which to make resales, the date for the
Put Closing shall not be deferred pursuant to this clause (ii) for a period
greater than ten (10) days after the date Nextel Investment receives such
notice), and (iii) if applicable, to the extent necessary to complete the
appraisal procedure described in Section 6 hereof. The date on which a Put
Closing occurs is referred to herein as a "Put Closing Date". Each Put Closing
shall be held at such location within New York, New York as shall be designated
in the Put Notice. At any Put Closing, Nextel Investment shall deliver to each
Selling Shareholder, subject to the continuing accuracy of such Selling
Shareholder's representations and warranties in Section 8, the applicable Put
Price as contemplated by Section 7 hereof, and each Selling Shareholder shall
deliver to Nextel Investment a certificate or certificates representing the
Shares constituting such Selling Shareholder's Equity Interest, free and clear
of all Liens (other than arising solely as a result of the existence of the
Shareholders Agreement and the Control Trust Agreement), duly endorsed or
accompanied by appropriate stock powers to effect the transfer to Nextel
Investment of such Selling Shareholder's Equity Interest. It is understood and
agreed that (i) with respect to any Shares included in a Selling Shareholder's
Equity Interest which are held in the Control Trust, such Selling Shareholder
shall be deemed to have satisfied its obligations to deliver certificates under
the immediately preceding sentence if it delivers to Nextel Investment the
instructions and certification referred to in clauses (a) and (b) of Section
5.2 of the Control Trust Agreement with respect to such Selling Shareholder's
Beneficiary Rights relating to such Shares, and (ii) failure of any Selling
Shareholder to perform any of its obligations or the inaccuracy of any
representations and warranties of any Selling Shareholder in Section 8, and any
action taken by Nextel Investment to exercise any of its rights in respect
thereof, shall not affect the rights of any other Selling Shareholder or the
rights of Nextel Investment under this Agreement, including without limitation
the right of other Selling Shareholders to sell their Shares to Nextel
Investment or the right of Nextel Investment to purchase the Shares of other
Selling Shareholders. It is similarly understood and agreed that Nextel
Investment's failure to perform any of its obligations
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with respect to any Selling Shareholder will not affect its right to purchase
the Shares of any other Selling Shareholder.
(c) Lapse of Put Right. If, with respect to a particular
occurrence of any particular Put Event, the Selling Shareholders fail to
exercise the Put Right in accordance with Section 2(b) hereof, the Selling
Shareholders' Put Right shall, with respect to such particular occurrence of
such Put Event, automatically lapse and shall be of no further force or effect
with respect to such Put Event. However, the Selling Shareholders' failure to
exercise the Put Right in accordance with Section 2(b) hereof with respect to a
particular occurrence of a particular Put Event shall not be deemed to be or
construed as a further or continuing waiver of any other occurrence of such Put
Event or any other Put Event, and the Put Right shall continue to be
exercisable in accordance with the terms hereof with respect to any other
occurrence of such Put Event or any other Put Event.
(d) Other Shareholders. Upon the exercise of the Put
Right, each Other Shareholder shall have the right, and the obligation, to sell
such Other Shareholder's Equity Interest to Nextel Investment at the Put
Closing with respect thereto, at the same Put Price and on the other terms and
conditions provided herein with respect to such exercise, and for such purpose
each Other Shareholder shall be treated as the Selling Shareholders.
3. Call Rights.
(a) Nextel Investment's Right to Call Shares. Upon the
terms and subject to the conditions of this Agreement, 1095 days after the
Effective Date, Nextel Investment shall have the right to require Selling
Shareholders to sell to Nextel Investment, and upon exercise by Nextel
Investment of its Call Right in accordance with the terms hereof, the Selling
Shareholders agree to sell to Nextel Investment, all, but not less than all of
the Selling Shareholders' Equity Interest (the "Call Right") at a purchase
price equal to the Call Price.
(b) Exercise of Call Right; Call Closings. If Nextel
Investment is entitled to exercise its Call Right and desires to do so, Nextel
Investment shall, within 1155 days after the Effective Date, deliver a written
notice (a "Call Notice") to the Representatives specifying a place and date not
earlier than thirty (30) nor later than ninety (90) days from the date such
Call Notice is given for the closing of the purchase by Nextel Investment of
the Selling Shareholders' Equity Interest (a "Call Closing"), provided that
such date shall be deferred to the later of (i) ten (10) days after the date of
obtaining any consents or approvals of any Governmental Authority which are
required by any Requirement of Law to effect the transfer to Nextel Investment
of such Selling Shareholder's Equity Interest in accordance with this Section
3(b), (ii) if Nextel Investment elects to make payment using Nextel Common
Stock, the date a registration
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statement is declared effective permitting resales of such Nextel Common Stock
for a thirty (30) day period thereafter (provided that if the Representatives
deliver a notice to Nextel Investment that the Selling Shareholders are willing
to receive Nextel Common Stock without there being an effective registration
statement under which to make resales, the date for the Call Closing shall not
be deferred pursuant to this clause (ii) for a period greater than ten (10)
days after the date Nextel Investment receives such notice) and (iii) if
applicable, to the extent necessary to complete the appraisal procedure
described in Section 6 hereof. The date on which a Call Closing occurs is
referred to herein as a "Call Closing Date." Any Call Closing shall be held at
such location within New York, New York as shall be designated in the Call
Notice. At any Call Closing, Nextel Investment shall deliver to each Selling
Shareholder, subject to the continuing accuracy of such Selling Shareholder's
representations and warranties in Section 8, the applicable Call Price as
contemplated by Section 7 hereof, and each Selling Shareholder shall deliver to
Nextel Investment a certificate or certificates representing the Shares
constituting such Selling Shareholder's Equity Interest, free and clear of all
Liens (other than arising solely as a result of the existence of the
Shareholders Agreement and the Control Trust Agreement), duly endorsed or
accompanied by appropriate stock powers to effect the transfer to Nextel
Investment of such Selling Shareholder's Equity Interest. It is understood and
agreed that (i) with respect to any Shares included in a Selling Shareholder's
Equity Interest which are held in the Control Trust, such Selling Shareholder
shall be deemed to have satisfied its obligations to deliver certificates under
the immediately preceding sentence if it delivers to Nextel Investment the
instructions and certification referred to in clauses (a) and (b) of Section
5.2 of the Control Trust Agreement with respect to such Selling Shareholder's
Beneficiary Rights relating to such Shares, and (ii) the failure of any Selling
Shareholder to perform its obligations or the inaccuracy of any representations
and warranties in Section 8, and any action taken by Nextel Investment to
exercise any of its rights in respect thereof, shall not affect the rights of
any other Selling Shareholders or the rights of Nextel Investment under this
Agreement, including without limitation the right of other Selling Shareholders
to sell their Shares to Nextel Investment or the right of Nextel Investment to
purchase the Shares of other Selling Shareholders. It is similarly understood
and agreed that Nextel Investment's failure to perform any of its obligations
with respect to any Selling Shareholder will not affect its right to purchase
the Shares of any other Selling Shareholder.
(c) Other Shareholders. Upon the exercise of the Call
Right, each Other Shareholder shall have the right, and the obligation, to sell
such Other Shareholder's Equity Interest to Nextel Investment at the Call
Closing with respect thereto, at the same Call Price and on the other terms and
conditions provided herein with respect to such exercise, and for such
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purpose each Other Shareholder shall be treated as the Selling Shareholders as
to which Nextel Investment has exercised its Call Right.
4. Put Events.
(a) Events Constituting Put Events. A "Put Event" shall be
deemed to have occurred (i) automatically on the date which is 1095 days after
the Effective Date or (ii) if after 365 days after the Effective Date, and
prior to, 1095 days after the Effective Date, any of the events set forth in
clause (1) or (2) below shall have occurred:
(1) The Board or the Company's shareholders shall have taken
action with respect to any of the items listed on Exhibit A hereto and any
Director directly or indirectly designated by one or more of the Selling
Shareholders or all the Shares held by any Selling Shareholder shall not have
voted in favor of such action; or
(2) Solely as a result of the Selling Shareholders' failure
to participate in a capital call approved by the Board in a vote in which any
Director directly or indirectly designated by one or more of the Selling
Shareholders shall not have voted in favor, the Selling Shareholders shall
cease to be entitled to directly or indirectly designate (or shall cease to
have the voting power to elect) at least two Directors on the Board.
5. Put Price.
(a) Calculation of Put Price. The Put Price for a Selling
Shareholder's or Other Shareholder's Equity Interest shall be the greater of
the amounts determined in accordance with paragraphs (i) and (ii) below:
(i) The product of (A) the Fair Market Value of a Share
as of the date of the Put Event (the "Put Price Determination Date") and (B)
such Selling Shareholder's Ownership Number as of the Put Closing Date; and
(ii) The product of (A) $150 million and (B) the product
of (1) the Ownership Percentage of such Selling Shareholder as of the date of
this Agreement and (2) a fraction, (x) the numerator of which is the Ownership
Number of such Selling Shareholder as of the Put Closing Date and (y) the
denominator of which is the Ownership Number of such Selling Shareholder as of
the date of this Agreement.
(b) Fair Market Value of a Share. For purposes of this
Section 5, the "Fair Market Value of a Share" means, as of the applicable
Determination Date:
(i) if thirty percent (30%) or more of the Outstanding
Shares are then held by Persons who are not Affili-
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ates or Associates of the Company and if such Shares are of the same or an
equivalent class and series as those that comprise the Selling Shareholders'
Equity Interest (or into which the Selling Shareholders' Equity Interest is
then convertible) and such class(es) or series of Shares is(are) then listed
and traded on a Trading Market, the Current Market Price per share of such
Shares as of such date, provided that if the product of the Fair Market Value
of a Share as of the applicable Determination Date multiplied by the
Outstanding Shares as of such date is a number which exceeds $250 million, then
the "Fair Market Value a Share" (determined as provided in this clause (i))
shall mean such number, reduced by an amount equal to the quotient of (x)
one-half of the amount by which such number exceeds $250 million, divided by
(y) the Outstanding Shares as of such date; or
(ii) if the class(es) and series of Shares which comprise
the Selling Shareholder's or Other Shareholder's, as the case may be, Equity
Interest (or into which the Selling Shareholders' Equity Interest is then
convertible) is (are) not then listed and traded on a Trading Market or if
fewer than thirty percent (30%) of such Shares are then held by Persons who are
not Affiliates or Associates of the Company, the quotient obtained by dividing
the Fair Value of the Company, determined as provided in Section 6, as of the
Put Price Determination Date, by the Outstanding Shares as of the Put Price
Determination Date.
(c) If the Shares, as a result of a dividend or other
distribution, combination, recapitalization, reclassification, exchange,
merger, consolidation or any other change or adjustment in respect of such
capital stock, consist of more than one class or series of capital stock and
each such Share of a different class or series does not have the same value or
is not then convertible into the same class and series, Nextel Investment and
the Representatives shall adjust the foregoing provisions in order to achieve
the same economic result contemplated by this Agreement.
6. Determination of Fair Value of the Company.
The "Fair Value of the Company" as of the applicable
Determination Date shall be (A) the fair value of the Company as of such date
determined by mutual agreement of Nextel Investment and the Representatives or
(B) if no such agreement is reached within ten (10) days after the date a Put
Notice or a Call Notice, as applicable, is delivered (such date of delivery
being referred to as a "Notice Date"), the fair value of the Company as of such
date determined as follows:
(a) Selection of Appraisers. The Selling Shareholders
collectively through the Representatives, and Nextel Investment, shall each
designate by written notice to the other a firm of recognized national standing
familiar with appraisal techniques applicable to an evaluation of the Company
to serve as an Appraiser pursuant to this Section 6 (the firms designated by
the
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15
Selling Shareholders and Nextel Investment being referred to herein as the
"Selling Shareholders Appraiser" and the "Nextel Appraiser," respectively)
within fifteen (15) days after the applicable Notice Date (or such later date
as to which Nextel Investment and the Representatives agree in writing). In
the event that either the Selling Shareholders or Nextel Investment fails to
designate its Appraiser within the foregoing fifteen (15)-day time period, the
Appraiser designated shall deliver an Appraiser Certificate as described in
Section 6(b) and the Fair Value of the Company shall be determined on the basis
of such Appraiser Certificate.
(b) Evaluation Procedures. Each Appraiser shall be
directed to determine the fair value of the Company (which for purposes of such
determination shall be what a willing buyer would pay a willing seller in an
arm's length transaction without application of any minority, liquidity or
other discounts or any control or other premiums) as of the applicable
Determination Date. Each Appraiser will be directed to deliver an appraiser's
certificate to the Selling Shareholders and Nextel Investment on or before the
forty-fifth (45th) day after the last date by which Nextel Investment and the
Representatives must designate an Appraiser pursuant to Section 6(a) (the
"Certificate Date"), upon the conclusion of its evaluation, which appraiser's
certificate shall set forth such Appraiser's determination of such fair value
of the Company as of such Determination Date (an "Appraiser Certificate").
Each Appraiser will keep confidential all information disclosed by the Company
in the course of conducting its evaluation and, to that end, will execute such
customary documentation as any party or the Company may reasonably request with
respect to such confidentiality obligation. The Company will provide each
Appraiser with such information concerning the Company as may be reasonably
requested in writing by each Appraiser for purposes of its evaluation
hereunder. The same information shall be provided to each Appraiser. The
Appraisers may, but shall be under no obligation to, consult with each other in
the course of conducting their respective evaluations. Each Appraiser will be
directed to comply with the provisions of this Section 6, and to that end, the
Selling Shareholders and Nextel Investment will provide to their respective
Appraisers a complete and correct copy of this Section 6 (and the definitions
of capitalized terms used in this Section 6 that are defined elsewhere in this
Agreement).
(c) Fair Value Determination. On the first Business Day
after the Certificate Date, the Fair Value of the Company shall be determined
on the basis of the respective Appraisers' Certificates in accordance with the
provisions of this Section 6(c). The higher of the values set forth on the
Appraisers' Certificates is hereinafter referred to as the "Higher Value" and
the lower of such values is hereinafter referred to as the "Lower Value". If
the Higher Value is not more than one hundred ten percent (110%) of the Lower
Value, the Fair Value of the Company will be the arithmetic average of such two
values. If the Higher
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16
Value is more than one hundred ten percent (110%) of the Lower Value, a third
appraiser shall be selected in accordance with the provisions of Section 6(d)
below, and the Fair Value of the Company will be determined in accordance with
the provisions of Section 6(e) below.
(d) Selection of and Procedure for Third Appraiser. If the
Higher Value is more than one hundred ten percent (110%) of the Lower Value,
within seven (7) days of the Certificate Date the Selling Shareholders
Appraiser and the Nextel Appraiser shall agree and jointly designate by written
notice to each party a third firm of recognized national standing familiar with
appraisal techniques applicable to an evaluation of the Company, and which has
not been engaged by any of the Selling Shareholders or Nextel Investment or
their respective Affiliates within the immediately preceding 18 months to
perform material services, to serve as an appraiser pursuant to this Section
6(d) (the "Third Appraiser"). If for any reason a Third Appraiser is not so
designated within such seven (7) day period, either Appraiser, or any party
hereto, shall have the right to request that the AAA promptly designate a Third
Appraiser which satisfies the criteria set forth above. The parties shall
direct the Third Appraiser to determine the fair value of the Company as of the
Determination Date (the "Third Value") in accordance with the provisions of
Section 6(b) above, and to deliver to the parties an Appraiser's Certificate on
or before the 30th day after the designation of such Third Appraiser. The
Third Appraiser will be directed to comply with the provisions of this Section
6(d), and to that end the parties will provide to the Third Appraiser a
complete and correct copy of this Section 6(d) (and the definitions of
capitalized terms used in this Section 6(d) that are defined elsewhere in this
Agreement).
(e) Alternative Determination of Fair Value. On the first
Business Day after the date of delivery of the Appraiser's Certificate of the
Third Appraiser, the Fair Value of the Company will be determined as provided
in this Section 6(e). The Fair Value of the Company will be (w) the Lower
Value, if the Third Value is less than the Lower Value, (x) the Higher Value,
if the Third Value is greater than the Higher Value, (y) the arithmetic average
of the Third Value and the other Value (Lower or Higher) that is closer to the
Third Value if the Third Value falls within the range between (and including)
the Lower Value and the Higher Value and (z) the Third Value, if the Lower
Value and the Higher Value are equally close to the Third Value.
(f) Fair Value if Appraiser Valuation Exceeds $250 Million.
Notwithstanding the foregoing provisions of this Section 6, if the Fair Value
of the Company determined in accordance with such provisions is a number which
exceeds $250 million, then the Fair Value of the Company will be such number,
reduced by one-half of the amount by which such number exceeds $250 million.
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17
(g) Costs. The Selling Shareholders and Nextel Investment,
respectively, will bear the cost of the respective Appraisers designated. If
the Higher Value is not more than one hundred fifteen percent (115%) of the
Lower Value, or if the Higher Value and the Lower Value are equally close to
the Third Value, the Selling Shareholders collectively, and Nextel Investment,
shall each bear fifty percent (50%) of the cost of the Third Appraiser, if any;
otherwise, the party (which for this purpose shall mean the Selling
Shareholders collectively or Nextel Investment) whose Appraiser's determination
of the fair value of the Company is further away from the Third Value shall
bear the entire cost of the Third Appraiser. The parties agree to pay when due
the fees and expenses of the Appraisers in accordance with the foregoing
provisions.
(h) Conclusive Determination. To the fullest extent
permitted by law, the determination of the Fair Value of the Company made
pursuant to this Section 6 shall be final and binding on the parties hereto,
and such determination shall not be appealable to any court; provided that the
foregoing shall not limit a party's rights to seek judicial enforcement of the
obligations of the other parties hereunder, including enforcement of a party's
right to receive the Put Price or Call Price as determined pursuant to this
Agreement.
7. Payment of Put Price and Call Price.
(a) Form of Payment. Subject to the further provisions of
this Xxxxxxx 0, Xxxxxx Xxxxxxxxxx shall pay the Put Price or Call Price to each
Selling Shareholder or Other Shareholder at any Put Closing or Call Closing in
any combination that Nextel Investment may elect (such combination to be the
same combination with respect to each such Selling Shareholder, but which
combination may differ with respect to each such Other Shareholder) of (i) cash
in United States dollars delivered, with respect to amounts of or in excess of
one million dollars ($1,000,000), by wire transfer of immediately available
funds to the account or accounts designated at least five (5) Business Days
prior to such Put Closing or Call Closing by such Selling Shareholder to Nextel
Investment, or with respect to amounts of less than one million dollars
($1,000,000) by bank check and (ii) a certificate or certificates representing
duly authorized, validly issued, fully paid and nonassessable shares of Nextel
Common Stock, which upon delivery at the Put Closing or the Call Closing, as
applicable, shall be free and clear of any Liens and (unless the
Representatives have delivered a notice to Nextel Investment that the Selling
Shareholders are willing to receive Nextel Common Stock without there being an
effective registration statement under which to make resales) shall be freely
transferable for a thirty (30) day period after the Put Closing or the Call
Closing (subject to the terms of Section 7(d)) by such Selling Shareholder or
Other Shareholder pursuant to an effective registration statement under the
Securities Act covering the resale by such Selling Shareholder or Other
Shareholder of such
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18
shares and which shares shall have been approved for listing and trading on a
United States national securities exchange or the NNM (the "Nextel Stock
Consideration"), having a total value equal to the applicable Put Price.
Notwithstanding the foregoing, if Nextel Investment does not make payment in
whole in cash at the Put Closing or Call Closing, Nextel Investment will be
deemed to have elected (as of the date of the Put Notice or Call Notice, as
applicable) to pay the Put Price or Call Price in Nextel Common Stock to the
extent payment is not made in cash. Each of the Selling Shareholders and Other
Shareholder will pay all stamp and other similar taxes, if any, which may be
payable in respect of the sale and delivery by such Selling Shareholder or
Other Shareholder to Nextel Investment of any of its Shares and will save
Nextel Investment harmless against any loss or liability resulting from
nonpayment or delay in payment of any such tax. All payments to be made by
Nextel Investment may be reduced by any taxes or other fees that Nextel
Investment is required to withhold, under any applicable Requirement of Law.
(b) Valuation of Nextel Common Stock. For purposes of this
Section 7, the value of the Nextel Stock Consideration shall be the product of
the Current Market Price per share of the shares of Nextel Common Stock
comprising the Nextel Stock Consideration as of the Put Closing Date or the
Call Closing Date, as applicable, times the number of such shares.
(c) Definition of "Nextel Common Stock". For purposes of
this Agreement, "Nextel Common Stock" means and includes (i) the class of stock
designated on the date hereof as the Class A common stock, par value $0.001 per
share, of Nextel and (ii) any other class of stock of Nextel or equity
securities of another corporation or other business entity resulting from any
changes of or to such common stock as a result of any dividend or other
distribution, split-up, combination, recapitalization, reclassification,
exchange, merger, consolidation or any other change or adjustment in respect of
such common stock.
(d) Registration Mechanics. If Nextel Investment elects
(or is deemed to have elected) to make payment of the Put Price or Call Price
using Nextel Common Stock, Nextel shall as soon as practicable after delivery
of the Put Notice or Call Notice use all reasonable efforts to cause a
registration statement to be filed and declared effective permitting the
Selling Shareholders and the Other Shareholders to transfer for a thirty (30)
day period after the Put Closing or Call Closing, as the case may be, the
Nextel Stock Consideration to be received by such Selling Shareholder or Other
Shareholder hereunder, provided that, Nextel may postpone filing a registration
statement at any time when: (i) financial statements meeting the requirements
of the Commission cannot with reasonable efforts be obtained; (ii) Nextel is in
possession of material non-public information, the disclosure of which at that
time Nextel's Board of Directors determines in good faith would not be in the
best interests of Nextel or (iii) such registration would adversely affect in a
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19
significant manner (including, without limitation, through the premature
disclosure thereof) a proposed financing, reorganization, recapitalization,
merger, consolidation or similar transaction involving Nextel or its
Affiliates; provided, however, that Nextel may postpone filing a registration
statement pursuant to clauses (i), (ii) or (iii) for such reasons only for up
to one hundred twenty (120) days from the date of receipt of the Put Notice or
Call Notice. If during the 30-day period after the Put Closing or Call Closing
there occurs any development or event which requires the making of any change
in such registration statement or the related prospectus (in each case as
amended or supplemented) so that they will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading: (i) Nextel shall
immediately notify each Selling Shareholder or Other Shareholder; (ii) upon
receipt of such notice, such persons shall discontinue dispositions of the
Nextel Stock Consideration until such persons shall have received copies of the
amended or supplemented prospectus contemplated above or have been advised by
Nextel in writing that use of the prospectus may be resumed; (iii) as promptly
as practicable, but not later than one hundred twenty (120) days after such
notice, Nextel shall take such action as is necessary to amend or supplement
the registration statement to permit sales of the Nextel Stock Consideration to
be made thereunder and shall furnish such amended or supplemented prospectus in
reasonable quantities (as thereafter deliverable to the purchasers of shares of
Nextel Common Stock comprising the Nextel Stock Consideration) to each such
Selling Shareholder or Other Shareholder so that such prospectus will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made,
not misleading; and (iv) the 30-day period shall be extended by the number of
days during which the Selling Shareholder and Other Shareholders are required
to discontinue dispositions of the Nextel Stock Consideration. Each Selling
Shareholder or Other Shareholder agrees that in undertaking the registration of
Nextel Common Stock contemplated hereby Nextel shall comply with the applicable
requirements of the agreements relating to the registration of Nextel Common
Stock listed on Exhibit B hereto, as in effect on the date hereof, as well as
other registration rights agreements entered into the future, provided such
future agreements do not prohibit, or restrict in a manner which deprives the
Selling Shareholders or the Other Shareholders of the overall material benefits
of their rights with respect to, the registration of Nextel Common Stock under
this Agreement, (such agreements on Exhibit B and future agreements being
herein referred to as the "Registration Rights Agreements"), including without
limitation, rights of parties to the Registration Rights Agreements to include
Shares under the registration statement contemplated by this Agreement; it
being further agreed that, subject to the immediately preceding
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20
proviso, the Registration Rights Agreements, shall, to the extent any
inconsistency exists between this Agreement and the Registration Rights
Agreements, govern the registration process. Nextel represents and warrants to
each of the Selling Shareholders that as of the date hereof the Registration
Rights Agreements listed on Exhibit B hereto are the only agreements to which
Nextel is a party or by which it is bound relating to the registration of
Nextel Common Stock. Each Selling Shareholder or Other Shareholder shall be
solely responsible for and shall pay or cause to be paid, as appropriate, all
underwriting discounts and commissions and brokerage fees attributable to the
sale of such Selling Shareholder's Nextel Common Stock and the fees and
disbursements of any counsel or other advisors or experts retained by such
Selling Shareholder, it being understood and agreed that Nextel shall be solely
responsible for and shall pay or cause to be paid all other expenses and fees
incurred by Nextel in connection with the registration of Nextel Common Stock
pursuant to this Section 7(d).
(e) Securities Law Restrictions.
(i) Unless it sells Nextel Common Stock to be acquired under
this Agreement, pursuant to an effective registration statement that is
declared effective at the Put Closing or Call Closing, each Selling Shareholder
and Other Shareholder agrees that it shall not sell, transfer, assign, pledge
or otherwise dispose of Nextel Common Stock unless such sale, transfer,
assignment, pledge or other disposition has been registered (with respect to
which Nextel has no obligation to undertake any such registration except as
expressly provided in Section 7) or is exempt under the Securities Act and has
been registered or qualified or is exempt from registration or qualification
under applicable state securities laws and each such Selling Shareholder and
Other Shareholder provides to Nextel an opinion of counsel reasonably
satisfactory to Nextel that a sale, transfer, assignment, pledge or other
disposition of such Nextel Common Stock may be made without registration.
(ii) Each Selling Shareholder and Other Shareholder
acknowledges that until such time as the Nextel Common Stock to be acquired by
such Selling Shareholder or Other Shareholder hereunder has been sold in a
public offering pursuant to an effective registration statement under the
Securities Act, or Rules 144 or 145 thereunder (or any successor rules), each
certificate representing such Nextel Common Stock shall be endorsed with the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS
THEY HAVE FIRST BEEN REGISTERED UNDER SUCH ACT AND APPLICABLE
STATE SECURITIES LAWS OR UNLESS AN
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EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND NEXTEL
COMMUNICATIONS, INC. SHALL HAVE RECEIVED, AT THE EXPENSE OF
THE HOLDER HEREOF, EVIDENCE OF SUCH EXEMPTION REASONABLY
SATISFACTORY TO THE CORPORATION (WHICH MAY INCLUDE, AMONG
OTHER THINGS, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
NEXTEL COMMUNICATIONS, INC.).
(iii) Each Selling Shareholder and Other Shareholder
acknowledges that Nextel may place stop transfer orders against the
registration or transfer of any Nextel Common Stock until such time as the
requirements of the foregoing legend are satisfied.
(iv) At the request of a Selling Shareholder or Other
Shareholder, Nextel will promptly cause the foregoing legend to be removed and
any stop transfer orders rescinded with respect to any shares of Nextel Common
Stock acquired by such Selling Shareholder or Other Shareholder hereunder, upon
presentation to Nextel of evidence reasonably satisfactory to it (which may
include, among other things, an opinion of counsel reasonably satisfactory to
it) that such legend is no longer applicable to such shares.
8. Representations and Warranties.
(a) Selling Shareholders. Each Selling Shareholder and
Other Shareholder hereby represents and warrants (severally and not jointly,
solely with respect to such Selling Shareholder or Other Shareholder) to Nextel
Investment as follows as of the date hereof and as of the Put Closing or Call
Closing (and Nextel Investment's obligation to acquire such Selling
Shareholder's or Other Shareholder's Shares at the Put Closing or Call Closing
shall be subject to such representations and warranties being true and accurate
as of such date):
(i) Corporate Organization. Such Selling Shareholder or
any Other Shareholder that is a corporation is a corporation (or, in the case
of Carlyle, limited liability company and in the case of Other Shareholders
that are partnerships or limited partnerships, partnership or limited
partnership) duly organized and validly existing under the laws of its
jurisdiction of organization.
(ii) Corporate Power and Authority. Such Selling
Shareholder or any Other Shareholder that is a corporation has the requisite
corporate (or, in the case of Carlyle, limited liability company and in the
case of Other Shareholders that are partnerships or limited partnerships,
partnership or limited partnership) power and authority to enter into this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
such Selling Shareholder or any Other Shareholder that is not a natural person
of this Agreement and the consummation by
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22
such Selling Shareholder or Other Shareholder of the transactions contemplated
hereby have been duly authorized by all requisite corporate (or, in the case of
Carlyle, limited liability company and in the case of Other Shareholders that
are partnerships or limited partnerships, partnership or limited partnership)
action on the part of such Selling Shareholder or Other Shareholder, and no
other corporate (or, in the case of Carlyle, limited liability company and in
the case of Other Shareholders that are partnerships or limited partnerships,
partnership or limited partnership) proceedings on the part of such Selling
Shareholder or Other Shareholder or its stockholders (or, in the case of
Carlyle, members and in the case of Other Shareholders that are partnerships or
limited partnerships, partners) are necessary to authorize this Agreement and
transactions contemplated hereby. This Agreement has been duly executed and
delivered by, and constitutes the valid and binding obligation of, such Selling
Shareholder or Other Shareholder, enforceable against such Selling Shareholder
or Other Shareholder in accordance with its terms.
(iii) Shares Free of Liens. As of the Put Closing or Call
Closing, as the case may be, the transfer of such Selling Shareholder's or
Other Shareholder's Shares pursuant to this Agreement (A) (1) does not and
will not result in the creation or imposition of any Lien (other than any Lien
solely created by action of Nextel Investment or any of its Affiliates) upon
any of such Selling Shareholder's or Other Shareholder's Shares, (2) does not
and will not violate any Requirement of Law applicable to it and (3) does not
and will not conflict with or result in any breach of any term, condition or
provision of, or constitute (with due notice or lapse of time or both) a
default under, or pursuant to the terms of, any mortgage, deed of trust or
other agreement or instrument to which it is a party or by which it or any of
its properties is bound, other than the Control Trust Agreement and
Shareholders Agreement, and (B) if applicable, does not and will not conflict
with its charter documents. As of the Put Closing or Call Closing, as the case
may be, each of such Selling Shareholder's or Other Shareholder's Shares to be
sold to Nextel Investment hereunder will be (i) duly authorized, validly
issued, fully paid and non-assessable Shares, (ii) delivered free and clear of
all Liens (other than any Lien solely created by action of Nextel Investment or
any of its Affiliates), and not be subject to any voting or trust agreement,
proxy, buy-sell agreement, right of first refusal, preemptive-right or similar
restriction, except in the case of a Selling Shareholder, as expressly
contemplated by the Control Trust Agreement and the Shareholders Agreement.
(iv) No Conflict. The execution, delivery and performance
by it of this Agreement, and the consummation by it of the transactions
contemplated hereby (A)(1) does not and will not violate any Requirement of Law
applicable to it and (2) does not and will not conflict with or result in any
breach of any term, condition or provision of, or constitute (with due notice
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23
or lapse of time or both) a default under, or pursuant to the terms of, any
mortgage, deed of trust or other agreement or instrument to which it is a party
or by which it or its properties is bound, other than the Control Trust
Agreement and Shareholders Agreement and (B) does not and will not conflict
with its organizational documents.
(v) Consents/Approvals. As of the Put Closing or Call
Closing, as the case may be, (A) no consents of, filings with, authorizations
or other actions of, any Governmental Authority will be required to be
received, made or filed by, or taken on behalf of, such Selling Shareholder's
or Other Shareholder's transfer of the Shares pursuant to this Agreement, other
than those that have or will have been received, made, filed or taken, and (B)
no consent, approval, waiver or other action by any Person under any contract,
agreement, indenture, lease or other similar document to which such Selling
Shareholder or Other Shareholder or any of its properties is bound is required
for the transfer of the Shares pursuant to the Agreement, except for any such
consents, approvals, waivers or other actions (x) required under the Control
Trust Agreement or Shareholders Agreement, if any, and (y) that have been or
will have been previously obtained or completed.
(vi) Share Ownership. As of the date hereof, such Selling
Shareholder or Other Shareholder Beneficially Owns the Shares set forth next to
its name on Schedule II hereto. As of the date hereof, such Selling
Shareholder or Other Shareholder has entered into no agreements or arrangements
to dispose of or grant any interest in such Shares or to otherwise acquire any
Shares or any interest in any Shares, except for this Agreement and, with
respect to each Selling Shareholder, the Stockholders Agreement and the Control
Trust Agreement.
(vii) Compliance With Securities Act. Any right or Nextel
Common Stock to be acquired by such Selling Shareholder or Other Shareholder
pursuant to this Agreement will be acquired for such Selling Shareholder's or
Other Shareholder's own account and not with a view to, or present intention
of, distribution thereof in violation of the Securities Act, or any applicable
state securities laws and will not be disposed of in contravention of the
Securities Act or any applicable state securities laws. Each Selling
Shareholder or Other Shareholder is an "Accredited Investor" as such term is
defined in Rule 501 promulgated under the Securities Act. Each Selling
Shareholder or Other Shareholder understands that as a result of executing this
Agreement, it may be forced to sell its Shares in exchange for Nextel Common
Stock under this Agreement, based on decisions made by the Representatives and
Nextel Investment and is knowledgeable about Nextel and its operations, is
capable of evaluating the risks and merits of entering into this Agreement and
its possible investment in Nextel Common Stock and has had an opportunity to
ask questions and receive answers concerning Nextel and the Nextel Common
Stock. Each Selling Shareholder or Other
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Shareholder is able to bear the economic risk of any investment in the Nextel
Common Stock for an indefinite period of time.
(b) Nextel and Nextel Investment. Each of Nextel and
Nextel Investment hereby represents and warrants to each of the Selling
Shareholders as follows as of the date hereof and as of the Put Closing or Call
Closing:
(i) Corporate Organization. They are corporations duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
(ii) Corporate Power and Authority. They have the
requisite corporate power and authority to enter into this Agreement, to
perform their obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by them of this
Agreement and the consummation by them of the transactions contemplated hereby
have been duly authorized by all requisite corporate action on the part of each
of them, and no other corporate proceedings on the part of either of them or
their respective stockholders are necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by each of them and constitutes the valid and binding obligation of
each of them, enforceable against each of them in accordance with its terms.
(iii) No Conflict. The execution, delivery and performance
by them of this Agreement, and the consummation by them of the transactions
contemplated hereby (A)(1) does not and will not violate any Requirement of Law
applicable to either of them and (2) does not and will not conflict with or
result in any breach of any term, condition or provision of, or constitute
(with due notice or lapse of time or both) a default under, or pursuant to the
terms of, any mortgage, deed of trust or other agreement or instrument to which
either of them is a party or by which either of them or any of their properties
is bound and (B) does not and will not conflict with their organizational
documents.
(iv) Consents/Approvals. As of the Put Closing or Call
Closing, as the case may be, (A) no consents of, filings with, authorizations
or other actions of, any Governmental Authority will be required to be
received, made or filed by, or taken on behalf of them for Nextel Investment's
purchase of the Shares pursuant to this Agreement, other than those that have
or will have been received, made, filed or taken, and (B) no consent, approval,
waiver or other action by any Person under any contract, agreement, indenture,
lease or other similar document to which any of them or any of their properties
is bound will be required for Nextel Investment's purchase of the Shares
pursuant to this Agreement, except for any such consents, approvals, waivers or
other actions that have or will have been previously obtained or completed.
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9. Termination.
This Agreement shall terminate and be of no further force or effect
upon the consummation of an IPO in one or more of a series of public offerings
in which Shares are sold to parties other than Nextel and its Affiliates at a
price to the public resulting in gross proceeds to the Company in the aggregate
of not less than $100 million and as a result of which the class(es) and series
or equivalent class(es) and series of Shares owned by the Selling Shareholders
(including without limitation classes and series into which such Shares are
then convertible) are listed and traded on any Trading Market. This Agreement
shall also terminate if the Effective Date has not occurred on or before 1095
days after the date of this Agreement.
10. Miscellaneous.
(a) Further Assurances. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to perform its obligations hereunder and to consummate and
make effective the transactions contemplated to be consummated by such party
under this Agreement. Without limitation of the generality of the foregoing,
each party hereto agrees to cooperate with the other parties in obtaining as
promptly as practicable after the exercise of a Put Right or Call Right,
respectively, any and all consents or approvals of any Governmental Authority
referred to in Sections 2(b) or 3(b), respectively, with respect to such
exercise and the related Put Closing or Call Closing, respectively.
(b) Binding Effect; Obligations Several and Not Joint.
This Agreement shall be binding upon and inure to the benefit of the respective
successors, heirs, personal representatives and permitted assigns of the
parties hereto, provided that neither this Agreement nor any rights or
obligations hereunder may be assigned or delegated by Nextel Investment, the
Selling Shareholders or the Other Shareholders without the prior written
consent of Nextel Investment and the Representatives except that (i) Nextel
Investment may assign in whole or in part its rights and obligations to any
Affiliate of Nextel, provided that Nextel Investment continues to be bound by
its obligations hereunder (ii) Nextel Investment may assign its rights and
obligations to any Affiliate of Nextel into which Nextel Investment is merged,
consolidated or otherwise combined and (iii) subject to the terms of the
immediately following sentence, any Selling Shareholder may assign in whole
its rights and obligations hereunder to any Person in connection with a
transfer of Shares held by such Selling Shareholder to such Person, provided
such Person agrees with Nextel Investment in writing reasonably acceptable to
Nextel Investment to be bound by all of the terms of this Agreement applicable
to such Selling Shareholder and provided such transfer
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26
or disposition complies with the requirements of the Control Trust Agreement,
Shareholders Agreement and Estatutos and all applicable laws, including without
limitation the Securities Act. Notwithstanding the foregoing, (i) each of the
Selling Shareholders and Other Shareholders shall not transfer or otherwise
dispose of any interest in the Shares without obtaining a written commitment,
reasonably acceptable to Nextel Investment, from the acquiror of such interest
in the Shares that it and any other future subsequent acquirors of any interest
in such Shares shall be obligated to sell any Shares upon the exercise of the
Call Right by Nextel Investment in accordance with the terms of this Agreement
applicable to the Selling Shareholders or Other Shareholders, as the case may
be, and prior to any such transfer or disposition, a legend will be placed on
the Shares in both English and Spanish indicating that the Shares are subject
to the obligations of the Call Right under this Agreement; and (ii) the rights
of any Selling Shareholder under this Agreement shall be assignable only in
connection with a transfer of all of such Selling Shareholder's Shares to a
single Person who or which agrees with Nextel Investment in writing reasonably
acceptable to Nextel Investment to be bound by all of the terms of this
Agreement applicable to such Selling Shareholder. The obligations of the
parties hereunder shall be several and not joint, and the failure of any party
to perform its obligations hereunder shall not limit or impair the obligations
of any other party or the right of any other party to enforce such obligations.
In the event of any inconsistency or conflict between the provisions of this
Agreement and the provisions of the Shareholders Agreement or the Control Trust
Agreement which would (x) prevent, impair or delay the Selling Shareholders'
exercise of the Put Right and receipt of the Put Price (y) prevent, impair or
delay Nextel Investment's exercise of the Call Right (and upon such exercise,
the Selling Shareholders receipt of the Call Price) or (z) limit Nextel
Investment's ability to purchase Shares under this Agreement without having to
purchase Shares of other persons or waive any rights under the provisions of
the Shareholders Agreement or the Control Trust Agreement, such provisions in
the Shareholders Agreement or the Control Trust Agreement shall be deemed to be
superseded by this Agreement to the extent necessary to eliminate such
inconsistency or conflict.
(c) Entire Agreement. This Agreement and the other
agreements and instruments entered into in connection herewith constitute the
entire agreement of the parties hereto with respect to the subject matter
hereof and thereof (other than certain representations with respect to matters
related to compliance with the Securities Act obtained from the Other
Shareholders) and shall supersede any prior expressions of intent or
understanding with respect to the transactions provided for herein and therein,
provided that, except as set forth in this Section 10(c), this Section 10(c) is
not intended to and shall not alter or affect in any manner the rights and
obligations of
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27
the parties pursuant to the Transaction Agreements, as the same have been or
may be amended.
(d) Costs and Expenses. Except as otherwise set forth
herein, each party agrees to bear its own expenses, fees and costs incurred in
connection with the transactions contemplated by this Agreement.
(e) Brokerage. There are no valid claims for brokerage
commissions, finder's fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement made by or on behalf of any party hereto and each party will
indemnify and hold the other party harmless against any liability or expense to
it arising out of such a claim.
(f) Amendment. Any amendment hereto shall be effective
only if in writing and signed by each of Nextel Investment and the
Representatives.
(g) Waiver; Cumulative Rights. No provision of this
Agreement shall be deemed to have been waived by any act or knowledge of any
party or of such party's agents, officers or employees, but only by an
instrument in writing specifying such waiver signed by Nextel Investment and
delivered to the Representatives, if Nextel or Nextel Investment is the waiving
party, or in writing signed by such party or the Representatives and delivered
to Nextel Investment, if any of the Selling Shareholders or Other Shareholders
is the waiving party. The failure or delay of any party to require performance
by another party of any provision hereof shall not affect its right to require
performance of such provision unless and until such performance has been waived
in writing. Each and every right hereunder is cumulative and may be exercised
in whole or in part from time to time.
(h) Notices. All notices, demands, requests, certificates
or other communications under this Agreement shall be in writing and shall be
mailed by certified or registered mail (return receipt requested) with charges
prepaid, hand delivered or sent by facsimile transmission or by commercial
courier to the address set forth below for each of the parties (or at such
other address as shall be specified by a party by like notice to all of the
other parties):
(i) if to Nextel or Nextel Investment:
Nextel Communications, Inc.
000 Xxxxx 00 Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
with a copy to:
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28
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
(ii) if to Associated:
Associated SMR, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
with a copy to:
The Associated Group, Inc.
0 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
(iii) if to WVM:
Wireless Ventures of Mexico, Inc.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx and Xxx Xxxxxxx
Telecopier: (000) 000-0000
(iv) if to Carlyle:
Carlyle-Tricom Investors L.L.C.
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
220 South
Washington, D.C. 20004
Attention: Xxxx Xxx
Telecopier: (000) 000-0000
(v) if to any Other Shareholder, to such
Other Shareholder at the address (or facsi-
mile number) set forth under the name of such
other Shareholder on Schedule I hereto.
Notwithstanding the foregoing, Nextel or Nextel Investment may provide or make
notice, demand, requests, certificates or other communications to any of the
Selling Shareholders or the Other Shareholders by mailing by certified or
registered mail (return receipt requested) with charges prepaid, hand delivered
or sent by facsimile transmission or by commercial courier to the address set
forth above for Associated and WVM who are acting as the Representatives under
this Agreement. Notices shall be deemed
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29
delivered when received; provided that any notice delivered after business
hours or on a Saturday, Sunday or legal holiday at the place of such delivery
shall be deemed for purposes of computing any time period hereunder to have
been delivered on the next business day in such place of delivery.
(i) Governing Law. This Agreement shall be governed by and
interpreted in accordance with the internal laws of the State of New York,
without reference to its conflicts of law principles.
(j) Counterparts. This Agreement may be signed in two or
more counterparts, each of which shall be deemed an original but which together
shall constitute one and the same instrument.
(k) Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
(l) Representatives. Each of the Selling Shareholders and
the Other Shareholders has hereby appointed Associated and WVM to act jointly
as the "Representatives" and to take certain actions and to receive notices as
specified herein. Nextel and Nextel Investment shall be entitled to rely and
act on the basis of any notice or instruction that is received from the
Representatives or provided to the Representatives and the Representatives, the
Selling Shareholders and the Other Shareholders shall indemnify and hold each
of Nextel and Nextel Investment harmless from any claim that Nextel or Nextel
Investment should not have acted or otherwise relied on notice or instruction
received from, or provided to, the Representatives.
(m) Nextel Not Obligated Except If Nextel Investment Uses
Nextel Common Stock. Except to the extent expressly set forth herein as an
obligation of Nextel (by naming Nextel or by including Nextel by reference to
"a party", "each of the parties", "any party", "all parties" or similar
reference), and except for the representations of Nextel set forth in Section
8(b), the provisions of this Agreement shall create no obligations on the part
of, or owed by, Nextel; provided that if Nextel Investment pursuant to Section
7(a) hereof, elects, or is deemed to have elected, to make payment in Nextel
Common Stock, Nextel agrees to cause such Nextel Common Stock to be issued to
Nextel Investment, and to effectuate the filing of the registration statement
referred to in and to otherwise comply with all of the applicable provisions
of, Section 7 hereof.
(n) Remedies. Each party shall be entitled to obtain
specific performance of the obligations of another party hereunder and
immediate injunctive relief, and in the event any action or proceeding is
brought in equity to enforce this Agreement, no party will present as a defense
that there is an adequate remedy at law. Such remedies shall be in addition to
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30
any other remedies which any party may have under this Agreement or otherwise.
(o) Approval of RadioCel Transactions and Capital Call. Upon
Nextel Investment's request, each of the Selling Shareholders and Other
Shareholders shall take all actions necessary as a shareholder of the Company
and under the Shareholders Agreement and the Control Trust Agreement to permit
(including without limitation voting its Shares, and causing its designees on
the Board of Directors of the Company to vote to permit) (i) the Company or its
designee to acquire an interest in certain assets of RadioCel, S.A. de C.V. and
(ii) an $11.8 million capital call from the Company's shareholders. Failure of
WVM or ACC to take such action to comply with its obligations under this
Section 10(o) shall be deemed to be a breach of the obligations of all Selling
Shareholders hereunder.
(p) Other Shareholders or Additional Parties. Each person or
entity listed on Schedule I hereto may (without any action or consent by any
other party) become a party to this Agreement as an "Other Shareholder" upon
(i) affirming in writing to Nextel Investment certain representations requested
by Nextel Investment, including without limitation, the representations set
forth in Section 8(a)(vii) hereof with respect to an Other Shareholder, and
Nextel Investment being reasonably satisfied that on the basis thereof that
such person or entity is an "Accredited Investor" as such term is defined under
the Securities Act and execution of this Agreement by such person or entity
complies with applicable law, including without limitation the Securities Act
and state securities laws, (ii) providing a supplement to Schedule I with such
Shareholder's address and facsimile number and a supplement to Schedule II with
the information required by Section 8(a)(vi) and (iii) executing and delivering
to Nextel Investment a counterpart signature page to this Agreement.
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31
IN WITNESS WHEREOF, this Agreement has been executed by the
parties hereof on the date first above written.
NEXTEL COMMUNICATIONS, INC.
By:
--------------------------------
Name:
Title:
NEXTEL INVESTMENT COMPANY
By:
--------------------------------
Name:
Title:
ASSOCIATED SMR, INC.
By:
--------------------------------
Name:
Title:
WIRELESS VENTURES OF MEXICO, INC.
By:
--------------------------------
Name:
Title:
CARLYLE-TRICOM INVESTORS, L.L.C.
By:
--------------------------------
Name:
Title:
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32
Exhibit A
Put Events
This is Exhibit A to the Put-Call Agreement dated as of June 13, 1996
among Associated SMR, Inc., Wireless Ventures of Mexico, Inc., Carlyle-Tricom
Investors, L.L.C., the persons and entities set forth on Schedule I thereto
that become parties thereto in accordance with the terms of Section 10(p)
thereof, Nextel Communications, Inc. and Nextel Investment Company (the
"Put-Call Agreement"). Notwithstanding the definitions set forth in the
Put-Call Agreement, references in this Exhibit A to (i) the "Control Trust
Agreement" refer to the Irrevocable Trust Agreement dated as of March 3, 1995
as in effect on the date hereof, (ii) the Company's "Estatutos" refer to the
corporate organizational and governance documents of the Company bearing such
name under Mexican legal principles as in effect on the date hereof. As
provided for in the Control Trust Agreement, references in the Control Trust
Agreement to the "Shareholders Agreement" refer to the Shareholders Agreement
dated as of March 3, 1995 as in effect on the date hereof. Capitalized terms
used but not defined in this Exhibit A or the Put-Call Agreement have the
respective meanings ascribed thereto in the Control Trust Agreement.
1. Any material amendment to the Company's or any of its Subsidiaries'
(or, prior to the time Natel is a Subsidiary to the extent the Company
has the power to control such action by Natel, Natel's) Estatutos
(except that termination of the supermajority voting requirements
governing votes of the Board of Directors set forth in Article 17 of
the Estatutos shall not be deemed a Put Event).
2. Any issuance by the Company or any of its Subsidiaries (or, prior to
the time Natel is a Subsidiary to the extent the Company has the power
to control such action by Natel, Natel's) of any Shares having, or any
security or instrument which if converted into or exchanged therefor
would have (other than the issuance of Securities having the same
rights as the Voting Securities held by the Grantors as of the date of
the Control Trust Agreement, the issuance of Class L Shares, or any
security or instrument which may be converted or exchanged for such
Voting Securities or Class L Shares) either (A) voting rights
disproportionately large to the ownership interests of the Company
represented thereby or (B) a class vote on any matter, except to the
extent required by applicable corporate law.
3. Any adoption by the Company or any of its Subsidiaries (or, prior to
the time Natel is a Subsidiary to the extent the Company has the power
to control such action by Natel, Natel) of any stockholder rights plan
or any other plan or arrangement that is designed to disadvantage any
Selling
33
Shareholder on the basis of the size of its shareholding or Beneficial
Ownership of Shares.
4. Any issuance by the Company or any of its Subsidiaries (or, prior to
the time Natel is a Subsidiary to the extent the Company has the power
to control such action by Natel, Natel) of Shares (other than pursuant
to the Eighteen Month Option or the Three Year Option and it being
understood that for purposes hereof any transfer by the Company of
Treasury Securities to any person shall be deemed an issuance of
Shares unless previously deemed to be an issuance under the first
proviso hereto) that (i) when added to all other issuances of Shares
by the Company during the preceding 36-month period would exceed 15%
of the total Shares outstanding at the commencement of such 36-month
period (it being understood that Shares issuable pursuant to employee
stock options and similar stock-based management incentive plans shall
not be included) or (ii) when added to all other issuances of Shares
by the Company during the preceding 36-month period, would be equal to
or less than 15% of the total Shares outstanding at the commencement
of such 36-month period; provided that the issuance of options,
warrants or other securities exercisable for or convertible into
Shares shall be deemed to be the issuance of the Shares for or into
which such options, warrants and other securities are exercisable or
convertible but the Shares into which such options, warrants and other
securities are exercisable or convertible shall not be included and,
for the purposes of calculating the number of Shares issued in any
36-month period, Shares shall be deemed to be issued on the date that
the Company becomes obligated to issue such options, warrants or other
securities; provided further, that if the issuance of all or a portion
of such options, warrants or other securities is terminated or
otherwise abandoned, then Shares shall no longer be deemed to have
been issued on the date that the Company becomes obligated to issue
such options, warrants or other securities.
5. The establishment of any Executive Committee or Special Committee of
the Board of Directors other than the Technology Committee referred to
in Section 12 of the Control Trust Agreement.
6. Any amendment to the last paragraph of either Article 13 or Article 17
of the Estatutos.
7. The replacement of the current Trustee under the Control Trust
Agreement.
8. A transaction or a series of related transactions by the Company or
its direct or indirect, majority or minority owned (only to the extent
the Company has the power to control such decisions) subsidiaries for
the purchase of, establishment of a joint-venture in, investment in,
loans
- 2 -
34
to, or guarantees of loans to third parties, having an aggregate
purchase price or principal amount in excess of U.S. $10,000,000 (or
its equivalent in other currencies).
9. A single or a related series of dispositions or encumbrances of assets
by the Company or of its direct or indirect, majority or minority
owned (only to the extent the Company has the power to control such
decisions) subsidiaries having fair market value in excess of U.S.
$10,000,000 (or its equivalent in other currencies).
10. The adoption of, or approval of any material deviation from, any
business plan, marketing plan (other than deviations in sales volume),
capital expenditure plan or operating budget of the Company or of its
direct or indirect, majority or minority owned (only to the extent the
Company has the power to control such decisions) subsidiaries.
11. The incurrence of capital expenditures in any fiscal year (other than
capital expenditures to comply with applicable law or a final judicial
or arbitration determination) by the Company or its direct or
indirect, majority or minority owned (only to the extent the Company
has the power to control such decisions) subsidiaries which in the
aggregate exceed 125% of the capital expenditures budget approved by
the Board of Directors.
12. Any approval by the Company or its direct or indirect, majority or
minority owned (only to the extent the Company has the power to
control such decisions) subsidiaries of any tender or exchange of
voting shares of the Company, any merger or other business combination
or the voluntary liquidation of the Company or of its direct or
indirect, majority or minority owned (only to the extent the Company
has the power to control such decisions) subsidiaries.
13. Any decision by the Company or its direct or indirect, majority or
minority owned (only to the extent the Company has the power to
control such decisions) subsidiaries to change its or their, as the
case may be, core business. For purposes of this paragraph, the term
"core business" means the provision (including, without limitation,
the supply installation and operation) of telecommunication products
and services (and the activities related thereto and supply thereof,
which are conducted in accordance with the business plan) in Mexico.
14. The approval of the terms and conditions of any offer for subscription
of treasury shares in respect of which the shareholders' preemptive
rights have been waived.
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