Contract
Exhibit 4.32
Summary in English of the Assignment Agreement with respect to the Shareholders’ and Share Purchase
Agreement (the “Assignment Agreement”)
The Assignment Agreement was entered into on April 7, 2011 by and between Mexico Media Investments
S.L., Sociedad Unipersonal, as assignor (the “Assignor”), and Corporativo Xxxxx xx Xxxxxxx,
S.A. de C.V., as assignee (the “Assignee”), with the consent of Grupo Xxxxxxx Telecom, S.A.
de C.V. (“GST”), GSF Telecom Holdings, S.A.P.I. de C.V. (“GSF”), Orilizo Holding
B.V. (“Orilizo”) and Grupo Iusacell, S.A. de C.V. (“GI”).
On April 7, 2011 the Assignor assigned to the Assignee all of its rights and obligations (the
“Assignment”) under the Shareholders’ and Share Purchase Agreement entered into on December
16, 2010 by and between GST, the Assignor, GSF, Orilizo and GI (the “Shareholders’
Agreement”). The Assignee assumed all the rights and obligations of the Assignor under the
Shareholders’ Agreement. As a result, the Assignee is considered the Holder of the Series B and BB
Shares for all purposes of the Shareholders’ Agreement. GST and GSF released the Assignor from any
and all liability arising under the Shareholders’ Agreement, and any and all rights and obligations
thereunder.
Each of GSF, GST, Orilizo and GI granted its full consent for the Assignment.
The parties to the Assignment Agreement submitted to the applicable laws of Mexico and to the
jurisdiction of the courts sitting in Mexico City, Federal District.
Summary in English of the Shareholders’ and Share Purchase Agreement (the “Shareholders’
Agreement”)
The Shareholders’ and Share Purchase Agreement was entered into on December 16, 2010, among Grupo
Xxxxxxx Telecom, S.A. de C.V. (the “Holder of the Series A and AA Shares”), Mexico Media
Investments, S.L., Sociedad Unipersonal,(the “Holder of the Series B and BB Shares” and,
together with the Holder of the Series A and AA Shares, the “Shareholders”), GSF Telecom
Holdings, S.A.P.I. de C.V. (the “Mexican Holding Company”), Orilizo Holding B.V. (the
“Non-Mexican Subholding Company”) and Grupo Iusacell, S.A. de C.V. (“Iusacell”) and
was amended on April 7, 2011.
| A. | Capital Contribution by the Holder of the Series B and BB Shares |
Subject to the terms of the Shareholders’ Agreement, the Holder of the Series B and BB Shares will
contribute to the Mexican Holding Company up to U.S.$1,600,000,000.
The Holder of Series B and BB Shares agrees to purchase (i) 1,658,960 shares, representing
1.093875% of the outstanding stock of the Mexican Holding Company (the “Initial Series B and BB
Shares”) for a total of U.S.$35,004,000, and (ii) the Series 1 Debentures and the Series 2
Debentures (collectively, the “Debentures”). The portion of the Purchase Price payable in
respect of the Initial Series B and BB Shares and the Series 1 Debentures is due on the date of
execution of the Shareholders’ Agreement. The portion of the Purchase Price payable in respect of
the Series 2 Debentures is due no later than October 31, 2011.1
The conversion of the Series 1 Debentures and the Series 2 Debentures into Series B and BB shares
of stock of the Mexican Holding Company entitles the Holder of the Series B and BB Shares to
acquire 49.45% of the outstanding capital stock of the Mexican Holding Company, and, together with
the purchase of the Initial Series B and BB Shares, entitles the Holder of the Series B and BB
Shares to acquire 50% of the outstanding capital stock of the Mexican Holding Company.
The Holder of Series B and BB Shares will pay a premium of U.S.$400,000,000 (the “EBITDA
Premium”) if the combined EBITDA for the Mexican Holding Company and Iusacell reaches
U.S.$3,472,000,000 at any time during the period from 2011 to 2015. Such EBITDA shall be net of the
relevant subscriber acquisition cost. The determination as to whether such EBITDA has been achieved
will be based on the financial statements of the Mexican Holding Company and the consolidated
financial statements of Iusacell and its subsidiaries for the relevant fiscal year and, as the case
may be, the internal financial statements for such year, as reviewed by the external auditors.
The Series 1 Debentures and the Series 2 Debentures are convertible into 34,596,821 and 113,744,219
Series BB shares of common stock, respectively, representing 11.53% and 37.91% of the outstanding
shares of stock of the Mexican Holding Company, respectively. Upon conversion of all the
Debentures, the Holder of the Series A and AA Shares and the Holder of
the Series B and BB Shares will each own 50% of the outstanding shares of stock of the Mexican
Holding Company.
| 1 | Note: As of June 28, 2011, U.S.$600,000,000 of the Purchase Price payable in respect of the Series 2 Debentures had been paid, and U.S.$600,000,000 remains to be paid. |
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Guaranty Trust
As security for the performance of their respective obligations in the Shareholders’ Agreement,
concurrently with the execution of the Shareholders’ Agreement, the Holder of the Series A and AA
Shares and the Holder of the Series B and BB Shares will establish a guaranty trust (the
“Guaranty Trust”), and will transfer thereto all except one of the shares of stock of the
Mexican Holding Company owned by each of them.
Liquidated Damages
If the Holder of the Series B and BB Shares does not pay the portion of the Purchase Price payable
in respect of the Series 2 Debentures (U.S.$1,200,000,000), on the terms of the Shareholders’
Agreement and the indenture relating to the Debentures, it will forfeit all of its rights thereto,
and the Series B and BB Shares shall be cancelled. In addition, all amounts outstanding under the
Series 1 Debentures will be deemed paid and the Mexican Holding Company will have no further
obligations in respect thereof. The Holder of the Series B and BB Shares shall not be deemed to
have defaulted with its payment obligations by virtue of paying an amount less than
U.S.$1,200,000,000 as a result of any adjustment to the Purchase Price pursuant to, or the exercise
of any right under, the Shareholders’ Agreement.
If the Holder of the Series A and AA Shares interferes with the payment of the portion of the
Purchase Price payable in respect of the Series 2 Debentures or the conversion of the Debentures or
takes any action to challenge the validity of the Debentures or certain related matters, the Holder
of the Series A and AA Shares and the Mexican Holding Company will be jointly and severally liable
to the Holder of the Series B and BB Shares for reimbursement of the portion of the Purchase Price
paid by the Holder of the Series B and BB Shares in respect of the Initial Series B and BB Shares
(U.S.$35,004,000) and the Series 1 Debentures (U.S.$364,996,000), plus interest, plus
U.S.$400,000,000 on account of liquidated damages.
If the Holder of the Series A and AA Shares does not pay the amount finally determined pursuant to
the Shareholders’ Agreement as an adjustment to the Purchase Price, or does not deliver the
information requested for purposes of determining such adjustment, it shall pay to the Holder of
the Series B and BB Shares, as liquidated damages, an amount equal to the adjustment in Purchase
Price.
Use of Proceeds
The amounts actually paid to the Mexican Holding Company by the Holder of the Series B and BB
Shares will be contributed to IF Telecoms, S.A. de C.V. for their use in such manner consistent
with the business plan of the Mexican Holding Company and Iusacell and its subsidiaries as the
board of directors of the Mexican Holding Company may determine.
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| B. | Management of the Mexican Holding Company, the Non-Mexican Subholding Company, Iusacell and its subsidiaries |
Until such time as the Condition Precedent (as defined below) shall have been satisfied, the board
of directors of the Mexican Holding Company and the executive committee of Iusacell and its
subsidiaries will be composed of four members, one of whom will be appointed by the Holder of the
Series B and BB Shares. Following the satisfaction of the Condition Precedent, the board of
directors and the executive committee will be composed of six and four members, respectively, half
of whom will be appointed by the Holder of the Series B and BB Shares.
Certain matters specified in the Shareholders’ Agreement are subject to approval by the affirmative
vote of at least three of the four or five of the six members, as the case may be, of the board of
directors of the Mexican Holding Company, Iusacell or the relevant subsidiary of Iusacell, as the
case may be.
| C. | Advertising |
Iusacell will purchase advertising services with an aggregate value of U.S.$125,000,000 over the
five year period following the execution of the Shareholders’ Agreement.
| D. | Financial Advisors |
The Mexican Holding Company will pay financial advisory or other fees, commissions or consideration
for the negotiation and implementation of the purchase of the shares and/or the Debentures, and/or
ancillary services. These fees will be payable to the persons designated by the Holder of the
Series A and AA Shares and the Holder of the Series B and BB Shares.2
| E. | Authorizations |
The conversion of the Debentures is subject to the Federal Competition Commission not issuing any
objection as with respect to the conversion of the Debentures by the Holder of the Series B and BB
Shares, on or before the Final Conversion Date for the Series 2 Debentures (as such term is defined
in the indenture relating to the issuance of the Debentures) (the “Condition Precedent”).
| F. | Impasse |
In the event of certain circumstances under which the parties fail to reach an agreement in
relation to certain matters specified in the Shareholders’ Agreement (an “Impasse”), either
party (the “Sender”) shall, subject to certain conditions, have the right to give the other
party (the “Recipient”) notice of the Impasse, setting forth a price per share in respect
of the shares of stock of the Mexican Holding Company. Following receipt of such notice, the
Recipient shall give the Sender notice of its intent to either sell to the Sender all of the shares
of stock of the Mexican Holding Company held by the Recipient, or purchase from the Sender all of
the shares of stock
of the Mexican Holding Company held by the Sender, at such price per share, upon which each party
shall be obliged to sell or purchase such shares to or from the other party, as the case may be, at
such price per share.
| 2 | It is expected that the persons designated to receive these fees and other consideration will be independent advisors. |
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| G. | Other Rights and Obligations |
(i) The amount payable by the Holder of the Series B and BB Shares in respect of the Series 2
Debentures, or (ii) the Purchase Price, will be U.S.$1,200,000,000 less the difference between
U.S.$140,000,000 and the decrease in liabilities attributable to the Notes whose holders shall have
joined certain reorganization plans by a certain date. The Holder of the Series B and BB Shares
will be liable for payment of any further decrease in the liabilities that is attributable to the
Notes whose holders join these reorganization plans by a certain later date.
| H. | Indemnification Obligations of the Holder of the Series A and AA Shares |
The Holder of the Series A and AA Shares agrees to (i) indemnify the Holder of the Series B and BB
Shares for losses incurred by Iusacell and its subsidiaries from any discrepancy between the
information contained in the representations and warranties of the Holder of the Series A and AA
Shares and Iusacell and the outcome of the Review (as defined below), or any fact, act or omission
occurred prior to the date of execution of the Shareholders’ Agreement and (ii) indemnify Iusacell,
its subsidiaries and the Holder of the Series B and BB Shares against any claim resulting from a
discrepancy between such representations and warranties and the outcome of the Review.
| I. | Review |
The Holder of the Series B and BB Shares is entitled to instruct auditors to perform a review (the
“Review”) of certain financial statements of Iusacell and its subsidiaries. The Purchase
Price shall be adjusted in the event that certain inaccuracies in such financial statements or in
certain representations and warranties of the Holder of the Series A and AA Shares and Iusacell are
identified. In addition, the Purchase Price may be adjusted if, subsequent to the Review, Iusacell
and/or any of its subsidiaries becomes aware of any fact or act predating the execution of the
Shareholders’ Agreement and resulting in a loss for Iusacell or any of its subsidiaries.
| J. | Termination |
The Shareholders’ Agreement will terminate upon the transfer by any party, to any third party, of
all the shares of stock of the Mexican Holding Company, the Non-Mexican Subholding Company,
Iusacell, and the subsidiaries of Iusacell held by such party, or of its rights under the Guaranty
Trust, in accordance with the applicable bylaws, except transfers to certain pre-approved
transferees.
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| K. | Assignment of Rights and Obligations |
No party may assign or transfer any of its rights and obligations under the Shareholders’
Agreement, except to certain pre-approved transferees or with the prior written consent of the
other parties.
| L. | Change in Control |
If (i) the Holder of the Series A and AA Shares or the Holder of the Series B and BB Shares
transfers any portion of its ownership interest in the Mexican Holding Company, the Non-Mexican
Subholding Company, Iusacell, or the subsidiaries of Iusacell, in violation of the Shareholders’
Agreement or the corporate bylaws of any such entity, or (ii) the person or persons currently in
control of the Holder of the Series A and AA Shares or the Holder of the Series B and BB Shares,
ceases to exercise the control of either such shareholder, then the Holder of the Series A and AA
Shares or the Holder of the Series B and BB Shares who made such transfer or suffered such change
in control will pay to the other shareholder, as liquidated damages, an amount equal to the
consideration received by it as a result of such event, or U.S.$500,000,000, whichever is higher.
The Holder of the Series B and BB Shares will not be deemed to have suffered a change in control if
a particular assignment or transfer is made to certain pre-approved transferees.
| M. | Applicable Law; Jurisdiction |
The parties submitted to the applicable laws of Mexico and to the jurisdiction of the courts
sitting in Mexico City, Federal District.
| N. | Certain Definitions |
“EBITDA” shall mean the operating profit for any given year, as determined in accordance
with the financial reporting standards (Normas de Información Financiera) issued by the Mexican
Council for the Research and Development of Financial Reporting Standards (Consejo Mexicano para la
Investigación y Desarrollo de Normas de Información Financiera) (“Mexican NIF”), plus
depreciation and amortization.
“Notes” shall mean the Senior Secured Notes due 2013, issued by Iusacell, and the
Senior Subordinated First Lien Notes due 2011 and Senior Subordinated Second Lien Notes due 2012,
issued by Grupo Iusacell Celular, S.A. de C.V.
“Purchase Price” shall mean the aggregate consideration payable in respect of the Series B
and BB Shares, the Series 1 Debentures and the Series 2 Debentures, irrespective of whether the
Series 1 Debentures or the Series 2 Debentures shall have been converted into shares of stock of
the Mexican Holding Company.
“Series 1 Debentures” shall mean the Series 1 Debentures in the aggregate principal amount
of U.S.$364,996,000.
“Series 2 Debentures” shall mean the Series 2 Debentures in the aggregate principal amount
of U.S.$1,200,000,000.
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