Exhibit 4.19
(Translation)
AGREEMENT MADE BY AND AMONG XX. XXXX XXXXX XXXXXXXX XXXXX ("JREA"); GRUPO
IUSACELL, S.A. DE C.V. (FORMERLY, NUEVO GRUPO IUSACELL, S.A. DE C.V.), AND GRUPO
IUSACELL CELULAR, S.A. DE C.V. (FORMERLY, GRUPO IUSACELL, S.A. DE C.V.)
(JOINTLY, "IUSACELL"); AND IUSACELL'S SUBSIDIARIES, NAMELY, IUSACELL PCS, S.A.
DE C.V., IUSATEL, S.A. DE C.V., IUSATELECOMUNICACIONES, S.A. DE C.V.,
INFOTELECOM, S.A. DE C.V., AND PUNTO-A-PUNTO IUSACELL, S.A. DE C.V.
(COLLECTIVELY, "IUSACELL SUBSIDIARIES"), PURSUANT TO THE FOLLOWING BACKGROUND,
REPRESENTATIONS AND CLAUSES:
B A C K G R O U N D :
1. On November 1st, 1998, JREA and IUSACELL entered into a Joint
Venture Formation Agreement (the "Joint Venture Agreement") pursuant to which
JREA would make capital contributions to the IUSACELL SUBSIDIARIES. Such capital
contributions would be effected by subscribing to and paying for the following
shares of stock (the "Shares") of the IUSACELL SUBSIDIARIES:
a) IUSACELL PCS, S.A. DE C.V.
41,581,658 shares
b) IUSATEL, S.A. DE C.V.
235,720 shares
c) IUSATELECOMUNICACIONES, S.A. DE C.V.
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8,063,804 shares
d) INFOTELECOM, S.A. DE C.V.
2,002 shares
e) PUNTO-A-PUNTO IUSACELL, S.A. DE C.V.
2,550 shares
A copy of the Joint Venture Agreement is hereto attached (Exhibit
A).
2. Under the Joint Venture Agreement, IUSACELL and JREA granted each
other an option to sell and buy the IUSACELL SUBSIDIARIES Shares.
3. On July 29, 2003, Movil Access, S.A. de C.V., acquired in a
public offering 74.6317% of the shares of stock of Grupo Iusacell, S.A. de C.V.
4. On October 3, 2003, JREA served a notice on IUSACELL to advise it
that he was exercising his option to sell the IUSACELL SUBSIDIARIES Shares under
the Joint Venture Agreement. A copy of such notice is hereto attached (Exhibit
B).
5. The parties have negotiated the Shares transfer and payment
mechanism and have reached the covenants set forth in the Clauses of this
Agreement.
R E P R E S E N T A T I O N S :
The parties represent that they are legally qualified to bind
themselves in the terms of the following
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C L A U S E S :
FIRST. The IUSACELL SUBSIDIARIES will hold such Shareholders'
Meetings and take such action as may be necessary in order to redeem, by means
of capital stock reductions, or otherwise transfer all of the Shares owned by
JREA in each of the IUSACELL SUBSIDIARIES.
SECOND. The full amount of the capital reimbursements resulting from
the redemption of the IUSACELL SUBSIDIARIES Shares to be paid to JREA must be
such that JREA receive US$11,193,883.50 (Eleven Million One Hundred and Ninety
Three Thousand Eight Hundred and Eighty Three Dollars 50/100, currency of the
United States of America), free of any income or any other tax withholding,
pursuant to Section 5.5(e) of the Joint Venture Agreement.
THIRD. Pursuant to the preceding Clause, Iusacell PCS, S.A. de C.V.,
will pay JREA, on account of itself and/of the other IUSACELL SUBSIDIARIES, the
full amount of the capital reimbursements mentioned above, within a term not to
exceed 2 (two) years following October 3, 2003. The reimbursement will be paid
to JREA in partial weekly installments which will be either deposited in or
transferred to the account indicated for such purpose by JREA, at the rate of at
least US$100,000 (One Hundred Thousand Dollars No/100 currency of the United
States of America) from
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November 3, 2003, onward, which is the date on which the Shareholders' Meeting
of Iusacell PCS, S.A. de C.V., the first of the IUSACELL SUBSIDIARIES, that will
approve the respective capital stock reductions.
FOURTH. Grupo Iusacell, S.A. de C.V., and Grupo Iusacell Celular,
S.A. de C.V., agree to be jointly and severally liable to JREA for the payment
obligations assumed by Iusacell PCS, S.A. de C.V., or any of the other IUSACELL
SUBSIDIARIES hereunder. Therefore, Grupo Iusacell, S.A. de C.V., and Grupo
Iusacell Celular, S.A. de C.V., are liable to JREA under Articles 1988 and 1989
of the Federal Civil Code [CODIGO CIVIL FEDERAL].
Grupo Iusacell, S. A. de C. V., and Grupo Iusacell Celular, S.A. de
C.V., further jointly undertake to post a civil bond [FIANZA CIVIL] in JREA's
favor in order to guarantee fulfillment of the payment obligations assumed by
Iusacell PCS, S.A. de C.V., and the other IUSACELL SUBSIDIARIES hereunder. Such
bond will be posted directly by Grupo Iusacell, S.A. de C.V., and Grupo Iusacell
Celular, S.A. de C.V., but it need not be issued by a bonding company, for which
purpose the parties must execute the respective contract within ten (10)
calendar days following the execution date hereof. Grupo Iusacell, S.A. de C.V.,
and Grupo Iusacell Celular, S.A. de C.V., hereby undertake to
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waive the benefits of order and excussio granted by Articles 2814 and 2815 of
the Federal Civil Code.
FIFTH. The unpaid balance of the full amount of the capital
reimbursements to which reference is made in Clause Second hereof will bear
interest at the rate of 14% (fourteen per cent) per annum from the date hereof,
payable by Iusacell PCS, S.A. de C.V., or any of the other IUSACELL SUBSIDIARIES
or else by IUSACELL to JREA on each anniversary date of the term mentioned in
Clause Third hereof, until payment in full of such amount.
SIXTH. Within a term not to exceed thirty (30) calendar days, all of
the Shares which are the subject matter of this transaction will be conveyed to
a trust created with a Mexican credit institution, whose main purpose will be,
among others:
(a) To guarantee payment to JREA of the capital reimbursement
resulting from the redemption of the IUSACELL SUBSIDIARIES
Shares.
(b) To guarantee the return of the Shares to the IUSACELL
SUBSIDIARIES after full payment of the capital reimbursement.
SEVENTH. From the creation date of the trust mentioned in Clause
Sixth hereof onward, the voting rights vested by the IUSACELL SUBSIDIARIES
Shares conveyed in trust will be exercised at all times by the trust company as
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directed by IUSACELL. In the event that Iusacell PCS, S.A. de C.V., any of the
other IUSACELL SUBSIDIARIES or IUSACELL fails to pay 4 (four) or more of the
weekly installments to which reference is made in Clause Third hereof, the right
to direct the trustee as to how the Shares will be voted will be exercised only
by JREA.
In the event that (a) the IUSACELL SUBSIDIARIES' Shareholders'
Meetings to approve the capital reimbursements mentioned throughout this
Agreement are not held, or else that the transfer of the IUSACELL SUBSIDIARIES
Shares is not completed on or before October 3, 2005, or (b) Iusacell PCS, S.A.
de C.V., any of the other IUSACELL SUBSIDIARIES or IUSACELL does not pay JREA
the amount of the capital reimbursements resulting from the redemption of the
IUSACELL SUBSIDIARIES Shares plus interest, as and when agreed upon hereunder,
namely, during a term of 4 (four) or more weeks (consistent with the weekly
installment system established in Clause Third hereof), JREA may retain and take
possession of any amounts already paid to him, as liquidated damages [XXXX
CONVENCIONAL] for the default of Iusacell PCS, S.A. de C.V., any of the other
IUSACELL SUBSIDIARIES or IUSACELL. Furthermore, JREA may demand Iusacell PCS,
S.A. de C.V., any of the other IUSACELL SUBSIDIARIES or IUSACELL strict
fulfillment of their obligations under the Joint Venture
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Agreement and this Agreement, as provided in Article 1949 of the Federal Civil
Code.
EIGHTH. In view of the preceding Clauses, the parties will enter
into such contracts, agreements and covenants and hold such Shareholders'
Meetings and take such action as may be necessary in order to effect the capital
reimbursements resulting from the redemption of the IUSACELL SUBSIDIARIES
Shares, in accordance with the system agreed upon by the parties in order to
obtain the maximum tax benefit pursuant to the applicable statutes, regulations
and circular letters.
NINTH. The parties will make their best efforts in order to agree
upon, as soon as possible and with the aid of their tax advisors and legal
counsel, the best structure to carry out and formalize the transaction which is
the subject matter of this Agreement within no more than thirty (30) calendar
days.
This Agreement is signed in the City of Mexico, Federal District, on
this 3rd day of November, 2003.
Grupo Iusacell Celular, S.A. de C.V.
Grupo Iusacell, S.A. de C.V.
By:
(An illegible signature) (An illegible signature)
Xxxx Xxxxx Xxxxxxxx Xxxxx Xxxxx Xxxxxxx Longoria
Attorney in fact
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(An illegible signature)
Xxxx Xxxxxxx Xxxxxxx Elcoro
Attorney in fact
Iusacell PCS, S.A. de C.V.
Iusatel, S.A. de C.V.
Iusatelecomunicaciones, S.A. de C.V.
Punto-a-Punto Iusacell, S.A. de C.V.
Infotelecom, S.A. de C.V.
By:
(An illegible signature)
Xxxxx Xxxxxxx Longoria
Attorney in fact
(An illegible signature)
Xxxx Xxxxxxx Xxxxxxx Elcoro
Attorney in fact
