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EXHIBIT 10.9
AMENDMENT TO PUT-CALL AGREEMENT
THIS AMENDMENT AGREEMENT (this "Agreement") is entered into as
of August 23, 1996 to the Put-Call Agreement, dated as of June 13, 1996 (the
"Put-Call Agreement") by and among NEXTEL COMMUNICATIONS, INC., a Delaware
corporation (together with its successors, "Nextel"), NEXTEL INVESTMENT
COMPANY, a Delaware corporation and a wholly owned subsidiary of Nextel
(together with its successors, "Nextel Investment"), ASSOCIATED SMR, INC., a
Delaware corporation (together with its successors, "Associated"), WIRELESS
VENTURES OF MEXICO, INC., a Virginia corporation (together with its successors,
"WVM"), and CARLYLE-TRICOM INVESTORS, L.L.C., a Delaware limited liability
company (together with its successors, "Carlyle", and collectively with
Associated and WVM, the "Selling Shareholders").
For good and valuable consideration, the receipt of which is
hereby acknowledged by the parties, the parties agree as follows:
1. Definitions. Capitalized terms not defined herein
shall have the meanings given to such terms in the Put-Call Agreement.
2. Effective Date. The parties hereby acknowledge that
the Effective Date shall occur upon a closing under each of the Share Purchase
and Call Option Agreement, dated as of the date hereof, among certain
shareholders of Grupo and Nextel Investment and the Subscription Agreement,
dated as of the date hereof, among the Company and Nextel Investment.
3. Amendment to "Current Market Price" Definition. The
definition of "Current Market Price" in the Put-Call Agreement is hereby
amended and restated as follows:
"Current Market Price" per share of common stock of an issuer
as of the applicable Determination Date shall be deemed to be
the average of the daily closing price per share of such
common stock for the 30 consecutive Trading Days immediately
prior to such date; provided, however, that in the event that
during such 30-Trading Day period (and for purposes of Section
7(b), in the event that during such 30-Trading Day period and
after such 30-Trading Day period and prior to the Put Closing
or the Call Closing, as the case may be) there occurs a record
date or effective date in respect of any changes of or to such
common stock as a result of any dividend or other distribution,
split-up, combination, recapitalization, reclassification,
exchange, merger, consolidation or any other change or
adjustment in respect of such common stock (including without
limitation an extraordinary cash dividend) then the "Current
Market Price" shall be adjusted appropriately. The closing
price for each such Trading Day shall be the last sale price,
regular way, or, in case no such sale takes place on such day,
the average of the
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closing bid and asked prices, regular way, on the Trading
Market, as reported in the principal consolidated transaction
reporting system or by the NNM with respect to securities
listed or admitted to trading on such Trading Market,
respectively.
4. Put Events. Section 4(a) of the Put-Call Agreement
is hereby amended and restated in its entirety to read as follows:
"(a) Events Constituting Put Events. A "Put Event"
shall be deemed to have occurred (i) automatically on the date
which is 1095 days after the Effective Date or (ii) if after
365 days after the Effective Date, and prior to 1095 days after
the Effective Date, any of the events set forth in clauses (1),
(2), (3) or (4) below shall have occurred:
(1) The Company has taken action with respect to any of
the items listed on Exhibit A hereto and any Director
directly or indirectly designated by one or more of
the Selling Shareholders shall have voted against
such action or any Selling Shareholder shall have
voted all the Shares held by such Selling Shareholder
against such action; provided that if the Company
takes any of the actions listed on Exhibit A without
a vote of the Board or the Company's shareholders,
such action shall constitute a "Put Event" unless the
Company prior to taking such action has provided
written notice to the Selling Shareholders of its
intention to take such action, in which case a "Put
Event" shall only be deemed to occur, if within
fifteen days after provision of such written notice,
Associated and WVM indicate in writing their
disagreement with such proposed action; or
(2) The Selling Shareholders shall cease to be entitled
to directly or indirectly designate (or shall cease
to have the voting power to elect) at least two
Directors on the Board for any reason other than as a
result of the sale or other transfer of the Shares
Beneficially Owned by one or more of the Selling
Shareholders; provided that to the extent the event
resulting in the Selling Shareholders ceasing to be
entitled to directly or indirectly designate (or
ceasing to have the voting power to elect) at least
two Directors, resulted in a "Put Event" occurring
under clause (1) of Section 4(a), no "Put Event"
shall deem to occur under this clause (2);
(3) Section 5.10 of the Shareholders Agreement shall have
been breached; or
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(4) Neither the Board nor the Company's shareholders
shall have voted on the adoption of, or approval of
any material deviation from, a business plan,
marketing plan, capital expenditure plan or operating
budget of the Company or of its direct or indirect,
majority or minority owned subsidiaries within 90
days after the date which is 365 days after the
Effective Date, unless during such 90 day period one
of the events listed in clauses (1), (2) or (3) of
this Section 4(a) has occurred."
5. Valuation of Nextel Common Stock. Section 7(b) of
the Put-Call Agreement shall be amended and restated in its entirety to read as
follows:
"(b) Valuation of Nextel Common Stock. For purposes
of this Section 7, the value of the Nextel Stock Consideration
shall be the product of the Current Market Price per share of
the shares of Nextel Common Stock comprising the Nextel Stock
Consideration as of three Business Days prior to the Put
Closing Date or the Call Closing Date, as applicable, times
the number of such shares."
6. Nextel Stock Consideration. Sections 7(f), 7(g) and
7(h) shall be added to Section 7 of the Put-Call Agreement and shall read as
follows:
"(f) Nextel Stock Consideration. If any or all of
the Put Price or Call Price to be paid by Nextel Investment to
each Selling Shareholder and Other Shareholder pursuant to
Section 7 consists of Nextel Stock Consideration and a
registration statement is filed and declared effective by the
Securities Exchange Commission to effectuate the resale of the
Nextel Common Stock delivered to the Selling Shareholders and
Other Shareholders (the "Registration Statement") and the
Selling Shareholders and Other Shareholders have complied
promptly with any reasonable requests from Nextel's
accountants for opinions or letters required under the
Statement of Auditing Standards with respect to Letters to
Underwriters as promulgated by the American Institute of
Certified Public Accountants, then Nextel shall provide each
Selling Shareholder and Other Shareholder holding Nextel
Common Stock included in the Registration Statement with (i) a
customary "negative assurances" letter from counsel to Nextel
in form and substance reasonably satisfactory to the Selling
Shareholders and (ii) a customary comfort letter from Nextel's
certified independent public accountants, in form and
substance reasonably satisfactory to the Selling Shareholders.
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(g) Indemnification by Nextel for Securities Law
Violations. (i) With respect to the Registration Statement,
Nextel shall indemnify each Selling Shareholder and Other
Shareholder whose securities are included therein, from and
against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on: (1)
any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statement; (2) any
omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading; or (3) any violation by
Nextel of the Securities Act or the Exchange Act or any rule
or regulation promulgated thereunder applicable to Nextel, or
any blue sky or state securities laws or any rule or
regulation promulgated thereunder applicable to Nextel, in
each case, relating to action or inaction required of or on
behalf of Nextel in connection with such Registration
Statement, and will reimburse each Selling Shareholder and
Other Shareholder entitled to indemnity hereunder for any
legal and other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage,
liability or action; provided that, the foregoing indemnity
and reimbursement obligation shall not be applicable to the
extent that any such claim, loss, damage or liability arises
out of or is based on any untrue statement (or alleged untrue
statement) or omission (or alleged omission) made in reliance
upon and in conformity with written information furnished to
Nextel by or on behalf of such a holder or by or on behalf of
an underwriter specifically for use in such prospectus,
offering circular or other document; and further provided
that, with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary
prospectus, the indemnity agreement contained in this Section
7(g) shall not inure to the benefit of any Selling Shareholder
or Other Shareholder to the extent that any such losses,
claims, damages or liabilities result from the fact that there
was not sent or given to any person who purchased securities
in connection with such registration, at or prior to the
written confirmation of the sale of securities to such person,
a copy of the prospectus relating to such registration, as
then amended or supplemented (exclusive of material
incorporated by reference), if Nextel had previously furnished
to the Selling Shareholder or Other Shareholder copies
thereof.
(h) Indemnification by Selling Shareholders and
Other Shareholders for Securities Law Violations. Each
Selling Shareholder and Other Shareholder that includes
securities in the Registration Statement shall indemnify
Nextel from and against all claims, losses,
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damages and liabilities (or actions in respect thereof)
arising out of or based on: (1) any untrue statement (or
alleged untrue statement) of a material fact contained in the
Registration Statement; (2) any omission (or alleged omission)
to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; or
(3) any violation by such holder of the Securities Act or any
rule or regulation promulgated thereunder applicable to such
holder, or of any blue sky or other state securities law or
any rule or regulation promulgated thereunder applicable to
such holder, in each case, relating to action or inaction
required of or on behalf of such holder in connection with
such Registration Statement, and will reimburse each such
Person entitled to indemnity hereunder for any legal and other
expenses reasonably incurred in connection with investigating
or defending any such claim, loss, damage, expense, liability
or action, but in each case only to the extent that such
untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such prospectus, offering
circular or other document in reliance upon and in conformity
with written information furnished to Nextel by or on behalf
of such holder specifically for use therein."
7. Notices. The second paragraph of Section 10(h)(i) of
the Put-Call Agreement is hereby amended and restated to read in its entirety
as follows:
"Nextel Communications, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇"
8. Release. The Put-Call Agreement is amended by adding
the following Section 11:
"11. Release. Without prejudice to the rights of
the Selling Shareholders and Other Shareholders under this
Agreement, the Selling Shareholders and Other Shareholders
(each, together with its successors, a "Releasor") agree that
upon the occurrence of a Put Closing or Call Closing, the
Company, Nextel Investment and Nextel and their respective
Affiliates shall be released and discharged from all actions,
causes of action, accounts, agreements, bills, covenants,
contracts, controversies, claims, damages, demands, dues,
extents, executions, judgments, liabilities, obligations,
promises, predicate acts, reckonings, specialties, suits,
trespasses and variances whatsoever, under any applicable law,
including, without limitation, Mexican law, United States
federal,
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state, and local law, at common law, in admiralty or in equity
(collectively, "Claims"), which any of them, ever had or now
has for, upon, or by reason of any matter, cause or thing
whatsoever in connection with any Releasor's capacity as a
shareholder or investor in the Company or any of its
subsidiaries from the beginning of the world to the date of
the Put Closing or Call Closing, including without limitation
whether arising as a result of the Company's, Nextel
Investment's or Nextel's violation of any contractual or other
duty owed to such Releasor as a shareholder of, or investor
in, the Company. Each Releasor agrees that at any Put Closing
or Call Closing it shall deliver any written acknowledgement
of the foregoing release that Nextel Investment may reasonably
request."
9. Exhibit A. Exhibit A of the Put-Call Agreement is
amended and replaced in its entirety by Exhibit A to this Agreement.
10. Miscellaneous.
(a) Governing Law. This Agreement shall be governed
by and interpreted in accordance with the internal laws of the State of New
York, without reference to its conflicts of law principles.
(b) Counterparts. This Agreement may be signed in
two or more counterparts, each of which shall be deemed an original but which
together shall constitute one and the same instrument.
(c) Headings. The headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
NEXTEL COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice Chairman
NEXTEL INVESTMENT COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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ASSOCIATED SMR, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
WIRELESS VENTURES OF MEXICO, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
CARLYLE-TRICOM INVESTORS, L.L.C.
By: /s/ ▇▇▇▇ ▇▇▇
----------------------
Name: /s/ ▇▇▇▇ ▇▇▇
Title: Vice President
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EXHIBIT A
Put Events
This is Exhibit A to the Put-Call Agreement dated as of June
13, 1996 as amended as of August __, 1996 among Associated SMR, Inc., Wireless
Ventures of Mexico, Inc., Carlyle-Tricom Investors, L.L.C., the persons and
entities set forth on Schedule I thereto that become parties thereto in
accordance with the terms of Section 10(p) thereof, Nextel Communications, Inc.
and Nextel Investment Company (the "Put-Call Agreement"). Notwithstanding the
definitions set forth in the Put-Call Agreement, references in this Exhibit A
to (i) the "Control Trust Agreement" refer to the Irrevocable Trust Agreement
dated as of March 3, 1995, as amended and as in effect on the Effective Date,
(ii) the Company's "Estatutos" refer to the corporate organizational and
governance documents of the Company bearing such name under Mexican legal
principles as in effect on the Effective Date and attached as Exhibit B to the
Shareholders Agreement. As provided for in the Control Trust Agreement,
references in the Control Trust Agreement to the "Shareholders Agreement" refer
to the Shareholders Agreement dated as of March 3, 1995, as amended and as in
effect on the Effective Date. Capitalized terms used but not defined in this
Exhibit A or the Put-Call Agreement have the respective meanings ascribed
thereto in the Control Trust Agreement.
1. Any material amendment to the Company's or any of its Subsidiaries'
(or, prior to the time Natel is a Subsidiary to the extent the Company
has the power to control such action by Natel, Natel's) Estatutos
(except that elimination of the requirement that matters listed in
items I through VI in Article 29 be considered by a shareholder
meeting shall not be deemed a Put Event).
2. Any issuance by the Company or any of its Subsidiaries (or, prior to
the time Natel is a Subsidiary to the extent the Company has the power
to control such action by Natel, Natel's) of any Shares having, or any
security or instrument which if converted into or exchanged therefor
would have (other than the issuance of Securities having the same
rights as the Voting Securities held by the Grantors as of the date of
the Control Trust Agreement, the issuance of Class N Shares, or any
security or instrument which may be converted or exchanged for such
Voting Securities or Class N Shares) either (A) voting rights
disproportionately large to the ownership interests of the Company
represented thereby or (B) a class vote on any matter, except to the
extent required by applicable corporate law.
3. Any adoption by the Company or any of its Subsidiaries (or, prior to
the time Natel is a Subsidiary to the extent the Company has the power
to control such action by Natel,
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Natel) of any stockholder rights plan or any other plan or arrangement
that is designed to disadvantage any Selling Shareholder on the basis
of the size of its shareholding or Beneficial Ownership of Shares.
4. Any issuance by the Company or any of its Subsidiaries (or, prior to
the time Natel is a Subsidiary to the extent the Company has the power
to control such action by Natel, Natel) of Shares (other than pursuant
to the Nextel Purchase Agreement, the Subscription Agreement, the
Revised Option Agreement or the Three Year Option or in connection
with employee stock options and similar stock-based management
incentive plans in place as of the date hereof ("ESOP Shares") or the
agreement to which the Company or its designee and RadioCel S.A. de
C.V. or its designee are among the parties for the company or its
designee to acquire the SMR business or assets of RadioCel S.A. de
C.V. ("RadioCel Acquisition Agreement") (the "Excluded Issuances"))
(it being understood that any transfer by the Company of Shares held
in Treasury to any person shall be deemed an issuance of Shares unless
previously deemed to be an Excluded Issuance) that when added to all
other issuances of Shares by the company during the preceding 36-month
period (other than Excluded Issuances), would exceed 15% of the total
Shares outstanding at the commencement of such 36-month period, the
number of Shares outstanding being calculated to take into account any
dividend in the form of Shares or other distribution in the form of
Shares, stock-split, spin-off, combination, recapitalization,
reclassification, exchange, merger, consolidation, issuance of capital
stock for the capitalization of premiums or any other similar change
in respect of the total Shares outstanding and issuances pursuant to
the Nextel Purchase Agreement, the Subscription Agreement and in
connection with the ESOP Shares and the RadioCel Acquisition
Agreement, in each case as if such event or issuance had occurred at
the commencement of such 36-month period; provided that the issuance
of options, warrants or other securities exercisable for or
convertible into Shares shall be deemed to be the issuance of the
Shares for or into which such options, warrants and other securities
are exercisable or convertible but the Shares into which such options,
warrants and other securities are exercisable or convertible shall not
be included and, for the purposes of calculating the number of Shares
issued in any 36-month period, Shares shall be deemed to be issued on
the date that the Company becomes obligated to issue such options,
warrants or other securities; provided further, that if the issuance
of all or a portion of such options, warrants or other securities is
terminated or otherwise abandoned, then Shares shall no longer be
deemed to have been issued on the date that the Company becomes
obligated to issue such options, warrants or other securities.
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5. The establishment of any Executive Committee or Special Committee of
the Board of Directors other than the Technology Committee referred to
in Section 12 of the Control Trust Agreement.
6. Any amendment to the last paragraph of either Article 13 or Article 17
of the Estatutos.
7. The replacement of the current Trustee under the Control Trust
Agreement.
8. A transaction or a series of related transactions by the Company or
its direct or indirect, majority or minority owned (only to the extent
the Company has the power to control such decisions) subsidiaries for
the purchase of, establishment of a joint-venture in, investment in,
loans to, or guarantees of loans to third parties, having an aggregate
purchase price or principal amount in excess of U.S. $20,000,000 (or
its equivalent in other currencies).
9. A single or a related series of dispositions or encumbrances of assets
by the Company or of its direct or indirect, majority or minority
owned (only to the extent the Company has the power to control such
decisions) subsidiaries having fair market value in excess of U.S.
$20,000,000 (or its equivalent in other currencies).
10. The adoption of, or approval of any material deviation from, any
business plan, marketing plan (other than deviations in sales volume),
capital expenditure plan or operating budget of the Company or of its
direct or indirect, majority or minority owned (only to the extent the
Company has the power to control such decisions) subsidiaries.
11. The incurrence of capital expenditures in any fiscal year (other than
capital expenditures to comply with applicable law or a final judicial
or arbitration determination) by the Company or its direct or
indirect, majority or minority owned (only to the extent the Company
has the power to control such decisions) subsidiaries which in the
aggregate exceed 125% of the capital expenditures budget approved by
the Shareholders.
12. Any decision by the Company or its direct or indirect, majority or
minority owned (only to the extent the Company has the power to
control such decisions) subsidiaries to change its or their, as the
case may be, core business. For purposes of this paragraph, the term
"core business" means the provision (including, without limitation,
the supply installation and operation) of telecommunication products
and services (and the activities related thereto and supply thereof,
which are conducted in accordance with the business plan) in Mexico.
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13. The approval of the terms and conditions of any offer for subscription
of treasury shares in respect of which the shareholders' preemptive
rights have been waived.
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