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EXHIBIT 10.20
RIGHT OF FIRST OPPORTUNITY AGREEMENT
RIGHT OF FIRST OPPORTUNITY AGREEMENT, dated as of March 6,
1997 (the "Agreement"), between NEXTEL COMMUNICATIONS, INC., a Delaware
corporation ("Nextel") and XXXXX INTERNATIONAL, LTD., a Washington corporation
and wholly owned subsidiary of Nextel ("MIL").
W I T N E S S E T H :
WHEREAS, MIL is offering 951,463 Units, each Unit consisting
of one 13% Senior Discount Note due 2007 of MIL (the "Notes") and one warrant
(the "Warrants") to purchase .10616 shares of common stock, no par value, of
MIL at an exercise price of $36.45 per share, subject to adjustment (the
"Offering"); and
WHEREAS, to facilitate the Offering, the parties hereto
desire to provide for certain matters concerning Nextel's and MIL's respective
involvement in the international wireless telecommunications industry.
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 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 Indenture pursuant to
which the Notes were issued; the "Indenture") occurs, neither Nextel nor any
Affiliate that is controlled by Nextel (other than MIL or any Restricted Group
Member (as such term is defined in the Indenture; collectively, the "MIL
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. A "Future Wireless Opportunity" shall mean any transaction in which
Nextel or any Affiliate that is controlled by Nextel 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
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Wireless Opportunity" shall not mean or include any of the following: (i)
holding any Equity Interest in any member of the MIL Group or directing or
participating in the management of any member of the MIL 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 prior to
the date hereof and was not contributed to MIL prior to the date on which the
Offering is consummated, 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
similar 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
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 has any direct or indirect Equity Interest (other
than those held by or through a member of the MIL 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 the date of this Agreement, 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 or its
controlled Affiliates (other than any member of the MIL 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. Except at Nextel's specific
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request or with Nextel's prior written consent, no member of the MIL 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 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 MIL of such Future Wireless
Opportunity and, to the extent known, of the terms, conditions and
circumstances applicable to such Future Wireless Opportunity (such notice the
"Initial Notice"). If either (i) the Board of Directors of MIL (or of the
appropriate member of the MIL Group) thereafter notify Nextel that such member
of the MIL Group is not able or elects not to pursue such Future Wireless
Opportunity or (ii) the appropriate member of the MIL Group has not notified
Nextel, 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 an
MIL Group member, Nextel will not be deemed to have been notified that an MIL
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 MIL Group member that will be used to
satisfy such financial commitment and that such financing is permitted under
the Indenture and the other loan documents, if any, to which the applicable MIL
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 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 MIL 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 or any
of its controlled
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Affiliates may pursue for itself and consummate, without further obligation,
condition or restriction under this Section, 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's election, on terms and conditions in
the aggregate no more favorable to Nextel or its appropriate controlled
Affiliate than those (if any) advanced by any member of the MIL Group that
previously elected to pursue such Future Wireless Opportunity as acceptable to
such member). Nothing in this Section shall obligate Nextel or any of its
controlled Affiliates to provide any financing or any other assistance to any
member of the MIL Group in connection with such member's consideration and/or
pursuit of any such Future Wireless Opportunity.
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 Notes
and the Warrants shall be third party beneficiaries of the agreements made
hereby between Nextel, on the one hand, and MIL on the other hand, and each
holder of Notes and Warrants 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 the Notes and the Warrants
thereunder, provided, that such rights may only be exercised through the
Trustee under the 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 Notes or Warrants, as the case may be, with the
power to bind all holders of Notes and Warrants.
SECTION 3. Severability. In the event that any one or more of
the provisions contained herein, or the
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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 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 MIL and Nextel. MIL and
Nextel agree, for the benefit of the holders of Notes and Warrants, not to
amend this Agreement in any respect material and adverse to the holders of
Notes or Warrants 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. 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.
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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
XXXXX INTERNATIONAL, LTD.
By: /s/ HENG-PIN KIANG
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Name: Heng-Pin Kiang
Title: Senior Vice President
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