CONFIDENTIAL TREATMENT REQUESTED
Exhibit 10.107
March 16, 1998
International Wireless Communications Holding, Inc.
000 Xxxxx Xx Xxxxxx Xxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Esq.
Re: Acquisition of Stock of RMD Venezuela and Venetel Owned Beneficially
by IWCH
Gentlemen:
This binding letter of intent (this "Agreement") embodies the
principal terms of the acquisition (the "Acquisition") by [*] a Delaware limited
liability company [*], or an affiliate of [*] (collectively, the "Purchaser"),
of (a) [*] of the outstanding capital stock of Radio Movil Digital de Venezuela,
C.A., a Venezuela corporation ("RMD Venezuela"), (b) an option (the "RMD
Venezuela Option") to acquire the remaining [*] of the outstanding capital stock
of RMD Venezuela, (c) [*] of the outstanding capital stock of Venezolana De
Telecomunicaciones, C.A., a Venezuela corporation ("Venetel" and, together with
RMD Venezuela, the "Companies") and (d) an assignment of two options
exercisable, respectively, until [*] and [*] (the "Venetel Option" and together
with RMD Venezuela Option, the "Options"), to acquire, in the aggregate, the
remaining [*] of the outstanding capital stock of Venetel, together with an
assignment of any and all rights, and the assumption of any and all obligations,
of any Shareholder under any agreement between or among any Shareholder on the
one hand and Venetel or any other shareholder of Venetel on the other
(collectively, including the Options, the "Shares"). The Shares are held by
International Wireless Communications Holdings, Inc. ("IWCH") or by entities
controlled by IWCH (IWCH, together with such other entities, the
"Shareholders"). The transactions described in this Agreement shall be
consummated in one closing, (the "Closing"). At the Closing, Purchaser shall
acquire the Shares. The Shares will be transferred to the Purchaser free and
clear of all liens and encumbrances; provided, however, that Purchaser may elect
within 20 business days from the Effective Date (as hereinafter defined), to, in
cooperation with the Shareholders, permit the outstanding loan to RMD Venezuela
from OPIC (the "OPIC Loan") to remain outstanding following the Closing, in
which case the RMD Venezuela Shares may continue to be encumbered pursuant to
such loan.
The Purchaser and the Shareholders hereby agree that, subject to the
conditions stated in this Agreement, the terms of the Acquisition shall be as
follows:
----------------------------
* Confidential portion has been omitted and filed separately with the
Commission.
CONFIDENTIAL TREATMENT REQUESTED
International Wireless Communications Holdings, Inc.
March 16, 1998
Page 2
1. SALE OF RMD VENEZUELA AND VENETEL. At the Closing, Purchaser
will acquire from the Shareholders shares of capital stock representing [*] of
the outstanding capital stock of each of RMD Venezuela and Venetel (the "Initial
Shares"), the RMD Venezuela Option and the Venetel Option. The exercise price
of the RMD Venezuela Option (the "RMD Venezuela Option Price") shall be [*].
IWCH represents that (a) the exercise price of the Venetel Option is a total of
approximately [*] of which [*] was advanced by the Shareholders as of [*] and is
not refundable, (b) the remaining [*] (the "Venetel Option Price") is to be paid
once the Venezuelan regulatory authorities approve the transfer of the
remaining [*] of the outstanding capital stock of Venetel to the Shareholders,
and (c) the Venetel Option is assignable by the Shareholders. In addition, at
the Closing, the Shareholders shall (i) cause each of the Companies to grant a
limited power of attorney, in form and substance customary for transactions of
the type contemplated by this Agreement (the "Power of Attorney"), to
representatives of the Purchaser to represent the Companies before Conatel and
other competent authorities to the extent (x) necessary to obtain all necessary
government approvals and make all necessary governmental filings to consummate
the Options and (y) permissible pursuant to the terms of the concession
agreements between each of the Companies and the Republic of Venezuela and
(ii) cause each of the Companies to enter into a marketing and management
services agreement, in form customary for transactions of the type contemplated
by this Agreement (each a "Marketing Agreement"), with Purchaser or an affiliate
thereof under which Purchaser or such affiliate shall have the exclusive rights
to market telecommunications products and services on behalf of the Companies
for the duration of the telecommunications licenses granted to the Companies;
the use of funds, if any, payable to the Companies by subscribers or by
Purchaser or such affiliate pursuant to the Marketing Agreement shall be subject
to the prior approval of Purchaser and shall exclusively be used to finance the
operations and infrastructure of the Companies.
2. CONSIDERATION. The Shareholders shall sell the Initial Shares
and the Options to the Purchaser for a total price (the "Purchase Price") of
[*], which shall be subject to adjustment as set forth herein. The Purchaser
Price shall be payable in cash at the Closing, except that the sum of (a) the
Venetel Option Price and (b) all outstanding principal and interest under the
OPIC Loan that is not repaid by the Companies as of the Closing shall be
deducted from the amount payable to the Shareholders on a dollar-for-dollar
basis. If, at the time of the earlier of the consummation of the Venetel Option
and the expiration of the Venetel Option, the amount actually paid by the
Purchaser with respect to the Venetel Option is less than the Venetel Option
Price, the Purchaser shall pay to the Shareholders the difference (up to [*]
between the Venetel Option Price and the amount actually paid (which amount
could be zero if the Venetel Option expires) by the Purchaser to the holders of
the remaining [*] of the outstanding capital stock of Venetel upon consummation
of the Venetel Option. If the Venetel Option expires unexercised and subsequent
to the payment contemplated by the immediately preceding sentence, the Purchaser
acquires and pays for additional shares of Venetel, the Shareholders shall
reimburse to the Purchaser the amount so paid up to [*].
CONFIDENTIAL TREATMENT REQUESTED
International Wireless Communications Holdings, Inc.
March 16, 1998
Page 3
The Purchase Price shall be subject to adjustment to the extent the
telecommunications frequencies (the "Channels") of the Companies do not, as of
the applicable date of determination, constitute "Qualified Channels" as defined
in this Agreement. In order for a channel to be considered a Qualified Channel
for purposes of this Agreement, Purchaser, in cooperation with IWCH and the
Companies, must have been able to obtain confirmation, to the reasonable
satisfaction of Purchaser (the "Required Comfort"), that such Channels meet any
of the following standards: (i) in order for Channels to be considered
"Confirmed Original Channels" held by one of the Companies, such Channels must
have been legally and validly assigned to one of the Companies by Conatel and
there must be no reasonable evidence nor any notice received from the Venezuelan
regulatory authorities that such assignment is no longer in effect or reasonably
likely to be revoked; (ii) in order for Channels to be considered "Confirmed
Reserved In Use Channels" held by one of the Companies, such Channels must have
been previously reserved by Conatel in accordance with its usual and customary
practices in favor of one of the Companies, there must be a showing that the
requirements to begin use of such reserved Channels were complied with, there
must be no reasonable evidence nor any notice received from the Venezuelan
regulatory authorities that such reservation is no longer in effect or
reasonably likely to be revoked, and there must have been at least an oral
communication from Conatel made jointly to representatives of the Companies and
the Purchaser confirming that the use of such Channels is valid; and (iii) in
order for Channels to be considered "Confirmed Reserved Channels" held by one of
the Companies, such Channels must have been reserved by Conatel in accordance
with its usual and customary practices in favor of one of the Companies, there
must be a showing that the requirements to continue to hold such reserved
Channels and to apply to use them in the future have been complied with, there
must be no reasonable evidence nor any notice received from the Venezuelan
regulatory authorities that such reservation is no longer in effect or
reasonably likely to be revoked, and there must have been at least an oral
communication from Conatel made jointly to representatives of the Companies and
the Purchaser confirming that the reservation of such Channels is valid.
It is understood and agreed that the Shareholders and the Companies
shall be entitled to take such actions as may be legally necessary in order to
cause Channels assigned to or reserved for the Companies as of the date hereof
to be confirmed by Conatel as Qualified Channels. However, in no event shall a
Channel that was neither assigned to, previously reserved for and currently used
by, nor reserved for, the Companies as of the date of this Agreement constitute
a Qualified Channel for purposes of this Agreement. Purchaser and the
Shareholders agree to cooperate with each other, and to use their respective
commercially reasonable best efforts, to promptly obtain the Required Comfort
both prior to and after the Closing; in connection therewith Purchaser agrees
not to discuss the Companies or the Channels with Conatel except following prior
consultation with IWCH and, at the request of IWCH, in the presence of an IWCH
representative.
CONFIDENTIAL TREATMENT REQUESTED
International Wireless Communications Holdings, Inc.
March 16, 1998
Page 4
In the event that the aggregate number of (i) Confirmed Original
Channels for immediate use in Caracas, (ii) Confirmed Reserved In Use Channels
in Caracas and (iii) Confirmed Reserved Channels reserved for use in Caracas
(collectively, "Caracas Qualified Channels") is less than [*], then the Purchase
Price shall be reduced by the product of (x) the difference between [*] and the
actual number of Caracas Qualified Channels times (y) [*] (such product being
the "Caracas Shortfall"). In the event that the number of (i) Confirmed
Original Channels for immediate use outside Caracas, (ii) Confirmed Reserved In
Use Channels outside Caracas and (iii) Confirmed Reserved Channels reserved for
use outside Caracas (collectively, "Non-Caracas Qualified Channels") is less
than [*] then the Purchase Price shall be reduced by the product of (x) the
difference between [*] and the actual number of Non-Caracas Qualified Channels
times (y) [*] (such product being the "Non-Caracas Shortfall").
At the time of the execution of the Purchase Agreement (as defined
below), the Purchaser shall place in escrow with an independent escrow agent
(which may be any commercial banking institution or trust company with at least
$1 billion in assets within the United States (the "Escrow Agent")), pursuant to
an escrow agreement, in customary form and in substance consistent with the
provisions of this paragraph, an amount (the "Pre-Closing Escrow") equal to the
sum of (a) the number of Caracas Qualified Channels for which Purchaser shall
have by such date received the Required Comfort times [*] plus (b) the number of
Non-Caracas Qualified Channels for which Purchaser shall have by such date
received the Required Comfort times [*]. The Pre-Closing Escrow shall be,
together with the balance of the Purchase Price payable at the Closing pursuant
to this Agreement, paid to IWCH (on behalf of the Shareholders) in cash at the
Closing.
During the 24-month period following the Closing (the "Post-Closing
Security Period"), as and when additional Channels constitute Qualified
Channels, IWCH (on behalf of the Shareholders) shall be paid by Purchaser or the
Escrow Agent promptly, but in any event within five (5) business days of written
demand by IWCH, the following: (a) with respect to additional Caracas Qualified
Channels, the product of (x) the number of Channels that became Caracas
Qualified Channels times (y) [*] and (b) with respect to additional Non-Caracas
Qualified Channels, the product of (x) the number of Channels that became
Non-Caracas Qualified Channels times (y) [*] (any additional amounts that become
payable to IWCH pursuant to this sentence being referred to therein as the
"Additional Channel Payments"). If at the Closing in order to fulfill the
condition set forth in subsection (i) of the second paragraph of Section 5 of
this Agreement, Purchaser is prepared to pay and pays IWCH and amount in excess
of the amount that would be required to be paid at such time based on the number
of Channels then constituting Qualified Channels, the Purchaser shall be
entitled to a credit against Additional Channel Payments and the Shortfall (as
hereafter defined), which credit shall be applied to the first payments that
would be required to be paid as Additional Channel Payments.
CONFIDENTIAL TREATMENT REQUESTED
International Wireless Communications Holdings, Inc.
March 16, 1998
Page 5
In no event shall the Shareholders be required to refund any amount of such
excess otherwise than by way of credit against Additional Channel Payments.
At the Closing, the amount of the Caracas Shortfall and the
Non-Caracas Shortfall (collectively, the "Shortfall") shall be secured for the
duration of the Post Closing Security Period pursuant to an escrow agreement
which is in customary form and in substance consistent with the provisions of
the immediately preceding paragraph, this paragraph and the immediately
succeeding paragraph (the "Post Closing Escrow Agreement") by the Purchaser
either: (a) placing the amount of the Shortfall in cash in escrow pursuant to
the Post-Closing Escrow Agreement (the "Post-Closing Escrow"); (b) depositing
with the Escrow Agent publicly-traded securities (which securities may be
replaced and substituted by Purchaser from time to time) (the "Stock Pledge")
having a minimum aggregate market value at all times during the Post-Closing
Security Period equal to at least twice the amount of the balance of the
Shortfall as of such time; or (c) delivering to the Escrow Agent an irrevocable
standby letter of credit issued in favor of the Escrow Agent by a commercial
banking institution reasonably acceptable to IWCH and in form reasonably
satisfactory to IWCH (the "L/C") having a minimum outstanding draw amount as of
any time during the Post-Closing Security Period equal to at least the amount of
the balance of the Shortfall as of such time, and having a term equal to at
least twenty-one (21) days subsequent to the end of the Post Closing Security
Period or if such term is for a shorter period, providing that the L/C can be
drawn against in full at any time during the last five business days of its term
if not replaced prior to such period by a form of Security Method (as
hereinafter defined) meeting the requirements of this Agreement. Any securities
to be included in the Stock Pledge shall be publicly traded U.S. government
securities, commercial paper or corporate debt securities rated in each case B2
or higher by Xxxxx'x Investor Service and B or higher by Standard and Poor's, or
securities listed on any national securities exchange or the NASDAQ National
Market; provided, however, such securities issued to Purchaser by any of its
affiliates shall be qualified to be pledged under the Stock Pledge only if such
securities are either (a) as to stock or corporate debt, registered for sale
under the Securities Act of 1933, as amended, or (b) as to stock, freely
tradable by a pledgee pursuant to Rule 144 under such Act. The Purchaser shall
have the right of elect which of the Post-Closing Escrow, the Stock Pledge and
the L/C (collectively, the "Security Methods") to provide to the Escrow Agent
and the Purchaser shall have the right, form time to time, to substitute one
type of Security Method for another type.
If the Security Method then in effect during the Post-Closing Security
Period is the Post-Closing Escrow or the L/C, the Escrow Agent shall have the
obligation to pay any Additional Channel Payments to IWCH (on behalf of the
Shareholders) directly from the Post-Closing Escrow or by the Post Closing
Escrow Agent making draws against the L/C, respectively, as and when such
Additional Channel Payments are payable pursuant to this Agreement. If the
Security Method then in effect during the Post-Closing Security Period is the
Stock Pledge, and IWCH has provided written notice to the Post Closing Escrow
Agent that any
CONFIDENTIAL TREATMENT REQUESTED
International Wireless Communications Holdings, Inc.
March 16, 1998
Page 6
Additional Channel Payments have not been paid to IWCH (on behalf of the
Shareholders) by Purchaser after such payments were payable pursuant to this
Agreement, the Escrow Agent shall have the obligation to liquidate the Stock
Pledge in accordance with the terms of the Post Closing Escrow Agreement, apply
the proceeds to any portion of the Shortfall then payable and retain the balance
of such proceeds as if they had been deposited by Purchaser into the
Post-Closing Escrow. At the end of the Post-Closing Security Period, any amount
remaining in the Post-Closing Escrow, any securities remaining under the Stock
Pledge or any undrawn portion of the L/C shall be released to Purchaser.
The Purchase Price assumes that, at the Closing, the Companies shall
each have zero cash and Non-Cash Working Capital balances. Accordingly, the
Purchase Price shall be adjusted upwards or downwards, respectively, on a dollar
for dollar basis by the amount that Non-Cash Working Capital exceeds or is below
zero and by the amount of cash balances. "Non-Cash Working Capital" shall mean
current assets (excluding cash) less current liabilities, excluding the current
portion of long term debt. The Purchase Price shall also be adjusted downward
by the amount of long-term debt (including the current portion thereof) of the
Companies outstanding as of the Closing. The Non-Cash Working Capital and the
amount of long-term debt shall be determined in accordance with U.S. generally
accepted accounting principles consistently applied. The payment by Purchaser
at the Closing shall be based on a good faith estimate by the parties of the
Non-Cash Working Capital and long-term debt outstanding. Purchaser shall
conduct, within 90 days after the Closing, a post-closing review as of the date
of the Closing upon which the final Purchase Price adjustments with respect to
Non-Cash Working Capital and outstanding long-term debt shall be used. Such
review shall be subject to review by IWCH for a subsequent 30-day period; any
disputes concerning the amount of the Non-Cash Working Capital and the
outstanding long-term debt remaining after such 30-day period shall be promptly
submitted by the parties to an independent accounting firm of national standing
within the United States whose good faith determination of the disputed matters
shall be binding upon all parties. The parties agree to make payments to each
other as required based on such review within five (5) business days after all
disputes are settled and to share equally any fees and disbursements payable to
such independent accounting firm.
The Purchaser shall have a period of ten (10) years from the date of
the Closing within which to exercise and consummate the RMD Venezuela Option
(such ten-year period or such shorter period ending on the date on which the RMD
Venezuela Option shall have been exercised and consummated in full being
referred to as the "RMD Venezuela Option Period"). Notwithstanding the
immediately preceding sentence, however, neither the RMD Venezuela Option nor
the Venetel Option shall be exercisable until, and the RMD Venezuela Option
shall be promptly exercised in accordance with its terms following, the receipt
of all necessary Venezuelan regulatory approvals required for the consummation
of such Options.
CONFIDENTIAL TREATMENT REQUESTED
International Wireless Communications Holdings, Inc.
March 16, 1998
Page 7
3. DUE DILIGENCE. Purchaser shall use its best efforts to complete
all necessary due diligence with respect to the Companies within fifteen
business days of the effective date of this Agreement. Purchaser acknowledges
that in connection with this Agreement or its due diligence review of the
Companies, it has taken, and will take, no actions with Venezuelan regulatory
authorities that reasonably could be anticipated to negatively impact the
business or operations of the Companies and that no such actions are required
for Purchaser to complete its due diligence review; provided, however, that the
foregoing shall not restrict the ordinary and customary business and government
relations activities of the Purchaser or its affiliates, in each case to the
extent unrelated to this Agreement and the purchase of the Shares or exercise of
the Options.
4. ACCESS. From and after the effective date of this Agreement, the
Shareholders and the Companies shall (i) provide Purchaser and Purchaser's
attorneys, accountants, advisors, representatives, affiliates and prospective
lenders with full and complete access to all assets, contracts, books and
records and financial statements of the Companies during normal business hours;
and (ii) provide Purchaser with such other information as Purchaser may
reasonably request. IWCH shall provide Purchaser as soon as practicable but in
any event within seven (7) days of the Effective Date with a list, which is, to
the best of the Shareholders' belief, true, complete and correct, in all
material respect, of all of the Companies' channels setting forth each channel
number, licensed service area, loading requirement and compliance therewith, and
operational and regulatory status, a copy of all licenses issued to the
Companies by Conatel for their channels and a copy of all interconnection
agreements. The terms of the Confidentiality Agreement dated January 22, 1998
are incorporated by reference herein and shall survive the termination hereof.
5. CONDITIONS. Although the parties intend to enter into a
definitive purchase agreement for the purchase of the Shares consistent with the
provisions of this Agreement (the "Purchase Agreement"), the parties hereto
acknowledge and agree that this Agreement is intended to be a legally binding
agreement, enforceable in accordance with its terms, and is not intended to be
subject to the execution of such additional documentation. Such definitive
Purchase Agreement shall be negotiated in good faith and contain reasonable and
customary representations, warranties, conditions, indemnification agreements,
and covenants. The parties will use their best efforts to cause the definitive
agreement to be prepared in final form and executed not later than 30 days after
the execution of this Agreement.
The following are conditions to the respective obligations of the
Shareholders and the Purchaser, irrespective of whether a Purchaser Agreement is
executed: (i) the Shareholders' obligation to consummate the Closing shall be
subject to the condition that the amount which Purchaser is required to pay to
IWCH or is otherwise prepared to pay to IWCH in respect of the Purchase Price at
the Closing, is at least [*] and (ii) Purchaser's obligation to consummate the
CONFIDENTIAL TREATMENT REQUESTED
International Wireless Communications Holdings, Inc.
March 16, 1998
Page 8
Closing shall be subject to the following conditions: (a) all of the Shares
shall be owned by the Shareholders; (b) as of the Closing there shall be a
minimum of [*] Caracas Qualified Channels and [*] Non-Caracas Qualified
Channels; (c) the Companies with respect to all of such Channels are in
compliance in all material respects with all applicable rules and requirements
of Conatel; (d) the Shareholders, with respect to the Companies and the
Channels, and the Companies have complied in all material respects with or are
not in violation of all applicable requirements of Venezuelan and United States
law, including the United States Foreign Corrupt Practices Act; (e) all of the
representations and warranties made by the Shareholders in the Purchase
Agreement shall have been true and correct when made and as of the time of the
Closing; and (f) Purchaser shall have had the opportunity to perform such due
diligence and verifications as Purchaser shall deem reasonable with regard to
the Companies and their channels and licenses and Purchaser shall be reasonably
satisfied with the results of such verifications and due diligence.
The parties shall also use their best efforts to satisfy all
conditions to the obligations of the parties to consummate the Closing and to
cause the Closing to occur as soon as practicable. In any event the Closing
shall occur, regardless of whether the Purchase Agreement is executed, within
five business days following the determination by Purchaser that, based on the
Required Comfort received by Purchaser and the amount of then-Qualified
Channels, the amount of the Purchase Price payable at the Closing shall be a
minimum of [*] subject to the satisfaction of the conditions to the obligations
of the parties, any of which may be waived.
6. INTERIM OPERATIONS. From the date hereof through the Closing,
the Shareholders will cause the Companies to conduct their business so as to
maintain and preserve their respective properties, businesses, subscribers, and
other assets, including the goodwill of Venezuelan regulatory authorities. From
the Effective Date through the Closing, IWCH will, from time to time, advise and
consult with Purchaser concerning significant developments in the operations of
the Companies, including but not limited to, capital requirements, management
and operating developments and regulatory developments. IWCH and the Purchaser
will use their respective reasonable efforts in good faith to agree upon any
actions that may be necessary or advisable for the Companies to take in response
to any such developments, which actions may include Purchaser providing capital
for the Companies on an interim basis upon mutually acceptable terms.
Commencing upon the Closing, at the request of the Purchaser, the
Shareholders shall cooperate with Purchaser and use their respective
commercially reasonable best efforts to, and cause the Companies to, obtain all
necessary regulatory or other approvals required for the exercise of the
Options. From the Closing through the RMD Venezuela Option Closing, IWCH and
the Shareholders shall cause RMD Venezuela to not, unless expressly permitted
hereunder, unless compliance with this sentence would cause a breach of the
concession agreement between RMD Venezuela and the Republic of Venezuela, or
with the prior written consent of Purchaser:
CONFIDENTIAL TREATMENT REQUESTED
International Wireless Communications Holdings, Inc.
March 16, 1998
Page 9
amend any provision of their constituent documents; engage in any transaction
with any Shareholder or in any transaction other than in the ordinary course of
business; make any material or substantive change in their business or capital
structure; incur any indebtedness; issue any capital stock or any rights,
warrants or options to purchase its capital stock; make any dividend or
distribution; or sell, transfer, encumber or pledge any of its assets other than
in the ordinary course of business consistent with past practice. From and
after the Closing, the Purchaser shall indemnify and hold harmless the
Shareholders and their respective directors, officers, partners, agents,
employees and controlling persons from and against any and all claims,
liabilities, costs, damages, expenses and losses suffered or incurred by them as
a result of any actions or inactions by Purchaser or any of its affiliates with
respect to RMD Venezuela, including, without limitation, actions or inactions
pursuant to the Power of Attorney or the Marketing Agreement between RMD
Venezuela and the Purchaser (the "RMD Marketing Agreement") or any violation of
the concession agreement between the Republic of Venezuela and RMD Venezuela
caused by the Purchaser during the RMD Venezuela Option Period. From and after
the Closing, each of the Shareholders shall jointly and severally indemnify and
hold harmless the Purchaser and its directors, officers, partners, agents,
employees and controlling persons from and against any and all claims,
liabilities, costs, damages, expenses and losses suffered or incurred by
Purchaser as a result of any actions or inactions (following a reasonable
request by the Purchaser to make or execute a lawful filing with any Venezuelan
governmental authority) by any of the Shareholders with respect to RMD Venezuela
or any concession agreement between the Republic of Venezuela and RMD Venezuela
by any of the Shareholders during the RMD Venezuela Option Period which prevents
the exercise or consummation of the RMD Venezuela Option or the ability of RMD
Venezuela to operate the Qualified Channels or of the Purchaser to obtain the
benefits of the RMD Marketing Agreement.
7. NEGOTIATIONS. From the Effective Date through [*] neither the
Companies, the Shareholders nor the directors, officers, agents or advisors of
any of them shall negotiate, or directly or indirectly solicit, or propose to
enter into, or continue any negotiations, or enter into any agreements or
understandings with any party other than the Purchaser which provide for or
relate to the disposition of a substantial interest in the Companies, or the
sale, transfer or other distribution of a substantial portion of the assets or
shares of the Companies, including their licenses or the Channels, nor shall the
Companies, the Shareholders or any such other person disclose to any other
person the existence of this Agreement or the status thereof except as required
to give effect to the provisions of this Agreement or as required by law,
provided that if the Closing shall have taken place, the obligations under this
section shall thereafter continue to be binding through the end of the RMD
Venezuela Option Period.
8. NO BROKERS. Except for the fees due TD Securities (USA) Inc.
from the Shareholders, for which neither the Companies nor the Purchaser shall
be liable, the Companies and the Shareholders represent and warrant that neither
has agreed to pay nor has taken any
CONFIDENTIAL TREATMENT REQUESTED
International Wireless Communications Holdings, Inc.
March 16, 1998
Page 10
action that will result in any other person or entity becoming entitled to
receive any brokerage fee, finder's fee or other similar fee or commission with
respect to the Acquisition.
9. EXPENSES. The Shareholders, on the one hand, and the Purchaser
on the other hand, will each bear their own fees and expenses, including, but
not limited to, fees and disbursements of attorneys and financial or other
advisors incurred in connection with the execution of this Agreement or the
transactions contemplated hereby.
10. GOVERNING LAW: JURISDICTION. The parties agree that the law of
the State of New York shall govern in the interpretation of this Agreement and
the Purchase Agreement. Any judicial proceeding brought against Purchaser or
IWCH or any dispute arising out of this Agreement or any matter relating hereto
may be brought in the United States District Court for the Southern District of
New York (or in the courts of the State of New York if the party bringing the
action has determined in good faith that jurisdiction may not be available in
the federal courts), and by execution and delivery of this Agreement, each of
parties to this Agreement accepts the exclusive jurisdiction of such courts, and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement.
11. TERMINATION. Notwithstanding anything to the contrary herein,
upon the execution of the Purchase Agreement, this Agreement shall terminate and
be of no further effect as of such date. In addition, this Agreement may be
terminated after [*] by either party in the event the Closing shall not have
occurred on or before such date, provided that the terminating party is not in
breach hereof. Any termination of this Agreement shall not relieve any party
from liability for breach of this Agreement; provided, however, that upon any
termination of this Agreement except (i) as the direct result of a material
breach of this Agreement by Purchaser, or (ii) by virtue of the execution of the
Purchase Agreement, any and all amounts placed in escrow by Purchaser shall be
released to Purchaser.
12. EFFECTIVE DATE. This Agreement shall become effective upon the
signature of IWCH (the "Effective Date"). If this Agreement is not signed by
IWCH and returned to [*] within one (1) business day of its receipt by IWCH, it
shall be void and of no further effect.
13. COUNTERPARTS; FACSIMILE. This Agreement may be executed by
counterparts and by facsimile transmission.
14. CERTAIN REPRESENTATIONS. Each of Purchaser and the Shareholders
hereby represent and warrant to the other that: (a) such party has the legal
right, power and authority to enter into this Agreement and consummate the
transactions contemplated hereby; and (b) this Agreement represents the legal,
valid and binding agreement of such party, enforceable in accordance with its
terms.
CONFIDENTIAL TREATMENT REQUESTED
International Wireless Communications Holdings, Inc.
March 16, 1998
Page 11
15. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successor and legal
representatives. This Agreement constitutes the entire agreement among the
parties regarding the subject matter hereof. All prior or contemporaneous
agreements, proposals, understandings and communications among the parties,
whether oral or written are suspended by and merged into this Agreement. This
Agreement may not be modified or amended except by a written instrument executed
by all the parties hereto.
(b) All notices, consents and other communications hereunder
will be provided in writing and will be delivered personally, by a nationally
recognized overnight delivery service, by United States registered or certified
mail (return receipt requested) or by facsimile or similar method of
communication, to the parties at the respective addresses set forth below (or
such other address as may have been furnished by or on behalf of any party like
notice).
If to Purchaser: [*]
Attention: President and General Counsel
If to the Shareholders:
International Wireless Communications Holdings, Inc.
000 Xxxxx Xx Xxxxxx Xxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Fax: 000-000-0000
Attention: Senior Vice President and General Counsel
Communications sent by facsimile will be deemed effectively served upon
dispatch, transmission confirmed. Communications sent by United States
registered or certified mail, postage prepaid, will be deemed effectively served
five (5) calendar days after mailing. Communications sent by a nationally
recognized overnight delivery service will be deemed effectively served, with
confirmation of delivery, one (1) calendar day after delivery to such a service
with all delivery fees prepaid.
(c) The Shareholders acknowledge that (i) the Channels are
unique properties, (ii) each of the agreements and obligations of the
Shareholders hereunder are a material inducement to the Purchaser to enter into
this agreement and to consummate the transactions contemplated herein, and
(iii) remedies at law would be inadequate and insufficient to compensate the
Purchaser in the event of a breach of said obligations and agreements of the
CONFIDENTIAL TREATMENT REQUESTED
International Wireless Communications Holdings, Inc.
March 16, 1998
Page 12
Shareholders. Accordingly, the Shareholders agree that in the event of a breach
or threatened breach of said obligations or agreements, the Purchaser shall be
entitled to such injunctive and other equitable relief, including the relief of
specific performance, in addition to other relief as is proper in the
circumstances.
(d) The parties agree at all times to act in good faith in
performance of their respective obligations under this Agreement.
(e) In the event of the disposition by the Purchaser to a
nonaffiliated person of any of the Shares (including any shares received by the
Purchaser upon the consummation of either or both of the Options), the Purchaser
shall not be relieved of its obligations hereunder unless the new owner of such
Xxxxxx agrees to assume all of such obligations.
CONFIDENTIAL TREATMENT REQUESTED
International Wireless Communications Holdings, Inc.
March 16, 1998
Page 13
(f) Purchaser and the Shareholders affirm, that with respect to
the Companies, each of them and their respective affiliates shall comply in all
material respects with, and shall not knowingly take any action that violates,
applicable requirements of Venezuelan and United States law, including the
United States Foreign Corrupt Practices Act.
Very truly yours,
[*]
(on behalf of the Purchaser):
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
AGREED TO AND ACCEPTED
THIS ____ DAY OF ______, 1998;
INTERNATIONAL WIRELESS
COMMUNICATIONS HOLDINGS, INC.
(on behalf of itself and each of the Shareholders)
By:
------------------------
Name:
----------------------
Title:
---------------------
