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EXHIBIT 10.16
AMENDED AND RESTATED RIGHT OF FIRST OPPORTUNITY AGREEMENT
AMENDED AND RESTATED RIGHT OF FIRST OPPORTUNITY AGREEMENT, dated as of
March 12, 1998 (the "Agreement"), between NEXTEL COMMUNICATIONS, INC., a
Delaware corporation ("Nextel Communications") and NEXTEL INTERNATIONAL, INC., a
Washington corporation and a wholly owned subsidiary of Nextel Communications
("Nextel International").
W I T N E S S E T H :
WHEREAS, Nextel International is offering $730 million aggregate principal
amount at maturity of its 12 1/8% Senior Discount Notes due 2008 (the "Notes")
at a price of 54.915% (the "Offering"); and
WHEREAS, Nextel Communications and Nextel International entered into that
certain Right of First Opportunity Agreement, dated as of March 6, 1997 (the
"Right of First Opportunity Agreement"), in connection with Nextel
International's offering of 951,463 Units, each unit consisting of one 13%
Senior Discount Note due 2007 (the "Existing Notes") and one warrant (the
"Warrants") to purchase .10616 shares of common stock, no par value, at an
exercise price of $36.45 per share, to provide for certain matters concerning
Nextel Communications' and Nextel International's respective involvement in the
wireless telecommunications industry.
WHEREAS, to facilitate the Offering, the parties hereto desire to amend and
restate the Right of First Opportunity Agreement for the benefit of the holders
of the Notes.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, receipt of which is acknowledged, the parties, intending
to be legally bound hereby, hereto agree as follows:
SECTION 1. First Opportunity Procedures. Nextel Communications hereby
agrees that until the earliest to occur of (i) April 15, 2007 and (ii) the date
on which a Change of Control (as such term is defined in the respective
indentures pursuant to which the Existing Notes and the Notes were issued (the
"Indentures")) occurs, neither Nextel
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Communications nor any Affiliate that is controlled by Nextel Communications
(other than Nextel International or any Restricted Group Member (as such term is
defined in the Indentures; collectively, the "Nextel International Group"))
shall be a party to any Future Wireless Opportunity (as such term is defined
below) except in compliance with the procedures set forth in this Section 1. A
"Future Wireless Opportunity" shall mean any transaction in which Nextel
Communications or any Affiliate that is controlled by Nextel Communications
would hold any equity securities or similar instrument representing an ownership
interest ("Equity Interest") in another Wireless Entity (as such term is defined
below), or would direct or otherwise participate in the management of another
Wireless Entity; provided that the term "Future Wireless Opportunity" shall not
mean or include any of the following: (i) holding any Equity Interest in any
member of the Nextel International Group or directing or participating in the
management of any member of the Nextel International Group, (ii) holding any
securities in or issued by any Wireless Entity which are not convertible into or
exercisable or exchangeable for any Equity Interest in a Wireless Entity, (iii)
holding any Equity Interest (or securities that are convertible into or
exercisable or exchangeable for any Equity Interest) in a Wireless Entity that
represents, on a fully-diluted basis, five percent (5%) or less of the total
fully-diluted Equity Interests in such Wireless Entity, (iv) continuing to hold
any investment in a wireless communications service business with operations
outside the United States of America (including its territories, possessions and
protectorates) that was made by Nextel Communications prior to March 6, 1997
with respect to the Existing Notes and Warrants and prior to the date hereof
with respect to the Notes and was not contributed to Nextel International prior
to March 6, 1997 with respect to the Existing Notes and Warrants and the date on
which the Offering is consummated with respect to the Notes, as the case may be,
or continuing to exercise rights to direct or participate in the management of
any such business or (v) any commercial relationship with any Wireless Entity
(including, without limitation, channel or frequency sharing, roaming, the
purchase, sale or exchange of goods and/or services, licensing of intellectual
property or other intangible rights or Nextel International business related
arrangement) that does not involve directing or participating in the management
of such Wireless Entity. A "Wireless Entity" shall mean any corporation,
partnership, trust, association or other form of business organization
("Entity") whose principal business activity involves the
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direct or indirect ownership or operation of two-way terrestrial-based mobile
wireless communications systems anywhere in the world other than (A) the United
States of America (including its territories, possessions and protectorates) and
(B) so long as Nextel Communications has any direct or indirect Equity Interest
(other than those held by or through a member of the Nextel International Group)
in Clearnet Communications, Inc. (including any successor to such entity or to
all of the specialized mobile radio communications business activities conducted
by such entity or its subsidiaries; "Clearnet"), in any of the provinces and
territories that, on March 6, 1997, collectively constitute Canada (the areas
described in the foregoing clauses (A) and (B), the "Excluded Areas"), but shall
not mean or include any such Entity in which Nextel Communications or its
controlled Affiliates (other than any member of the Nextel International Group)
first acquired an Equity Interest or first became entitled to direct or
participate in the management of following compliance with the procedures set
forth in the next paragraph of this Section 1. Except at Nextel Communications'
specific request or with Nextel Communications' prior written consent, no member
of the Nextel International Group shall hold, acquire or direct or otherwise
participate in the management of any wireless communications service business
(other than Clearnet) having any operations in the Excluded Areas.
If Nextel Communications or any of its controlled Affiliates becomes aware
of any Future Wireless Opportunity, it shall promptly notify the Chief Executive
Officer and the Board of Directors of Nextel International of such Future
Wireless Opportunity and, to the extent known, of the terms, conditions and
circumstances applicable to such Future Wireless Opportunity (such notice is
referred to herein as the "Initial Notice"). If either (i) the Board of
Directors of Nextel International (or of the appropriate member of the Nextel
International Group) thereafter notify Nextel Communications that such member of
the Nextel International Group is not able or elects not to pursue such Future
Wireless Opportunity or (ii) the appropriate member of the Nextel International
Group has not notified Nextel Communications, within sixty (60) days after the
date of the Initial Notice, that such member intends to pursue the Future
Wireless Opportunity (provided that if such Future Wireless Opportunity involves
any financial commitment to be made by a Nextel International Group member,
Nextel Communications will not be deemed to have been notified that
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a Nextel International Group member intends to pursue the Future Wireless
Opportunity unless the notification of such intent ("Notice of Intent") is
either preceded or accompanied by (A) a statement, in reasonable detail, of the
sources of financing reasonably available to such Nextel International Group
member that will be used to satisfy such financial commitment and that such
financing is permitted under the Indentures and the other loan documents, if
any, to which the applicable Nextel International Group members are parties or
by which they are bound (a "Financing Statement") or (B) a good faith written
undertaking to identify the source and nature of such financing in a writing to
be delivered to Nextel Communications within 30 days after the date on which the
Notice of Intent is delivered ("Proposed Financing Notice"), and to deliver a
Financing Statement consistent with the Proposed Financing Notice within 60 days
after the Notice of Intent is delivered; provided, that, a failure to timely
deliver a Proposed Financing Notice or the related Financing Statement will be
treated as an election by the Nextel International Group not to pursue such
Future Wireless Opportunity) or (iii) thereafter ceases to pursue such Future
Wireless Opportunity diligently and in good faith or fails to consummate such
Future Wireless Opportunity within nine months of the date of the Initial Notice
(extended as may be reasonably required to obtain any necessary governmental
approval or clearances) then, and in any such event, Nextel Communications or
any of its controlled Affiliates may pursue for itself and consummate, without
further obligation, condition or restriction under this Section 1, such Future
Wireless Opportunity on substantially the same terms and conditions as were set
forth in the Initial Notice (or, if applicable and at Nextel Communications'
election, on terms and conditions in the aggregate no more favorable to Nextel
Communications or its appropriate controlled Affiliates than those (if any)
advanced by any member of the Nextel International Group that previously elected
to pursue such Future Wireless Opportunity as acceptable to such member).
Nothing in this Section 1 shall obligate Nextel Communications or any of its
controlled Affiliates to provide any financing or any other assistance to any
member of the Nextel International Group in connection with such member's
consideration and/or pursuit of any such Future Wireless Opportunity.
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For purposes of this Section 1:
"Affiliate" as applied to any Person, means any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled
by" and "under common control with"), as applied 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.
SECTION 2. Third Party Beneficiaries. The holders of the Existing Notes,
the Warrants and the Notes shall be third party beneficiaries of the agreements
made hereby between Nextel Communications, on the one hand, and Nextel
International on the other hand, and each holder of Existing Notes, Warrants and
Notes shall have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights or the
rights of holders of Existing Notes, Warrants, and Notes thereunder, provided,
that such rights may only be exercised through the Trustee under the applicable
Indenture or the Warrant Agent under the Warrant Agreement, or another
reasonably acceptable representative authorized to act by holders of a majority
of the outstanding Existing Notes, Warrants or Notes as the case may be, with
the power to bind all holders of the Existing Notes, Warrants and Notes.
SECTION 3. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
SECTION 4. Specific Performance. Without limiting the rights of each party
hereto to pursue any and all other legal and equitable rights available to such
party for the other parties' failure to perform their obligations under this
Agreement, the parties hereto acknowledge and
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agree that the remedy at law for any failure to perform their obligations
hereunder would be inadequate and that each of them, respectively, shall be
entitled to specific performance, injunctive relief or other equitable remedies
in the event of any such failure.
SECTION 5. Amendments. Subject to the next succeeding sentence, this
Agreement may be amended at any time by Nextel International and Nextel
Communications. Nextel International and Nextel Communications agree, for the
benefit of the holders of Existing Notes, Warrants and Notes, not to amend this
Agreement in any respect material and adverse to the holders of Existing Notes,
Warrants and Notes and to give written notice of any proposed amendment to the
Trustee and the Warrant Agent at least 30 days prior to the effectiveness
thereof.
SECTION 6. Assignment. Neither this Agreement nor any of the rights,
interests or obligations of any party hereto may be assigned by such party
without the prior written consent of the other party.
SECTION 7. Counterparts; Effectiveness. This Agreement may be executed in
one or more counterparts, all of which together shall constitute a single
agreement, and all of which shall constitute an original for all purposes. This
Agreement shall become effective without any further action on the part of
Nextel Communications or Nextel International on April 13, 1998, at which time
the Right of First Opportunity Agreement shall be deemed amended, restated and
replaced by this Agreement.
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SECTION 8. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
NEXTEL COMMUNICATIONS, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
NEXTEL INTERNATIONAL, INC.
By: /s/ HENG-PIN KIANG
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Name: Heng-Pin Kiang
Title: Vice President
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