1
EXHIBIT 10.7
===============================================================================
AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
DATED AS OF AUGUST 23, 1996
AMONG
NEXTEL INVESTMENT COMPANY,
NEXTEL COMMUNICATIONS, INC.,
GRUPO COMUNICACIONES SAN XXXX, S.A. DE C.V.,
ASSOCIATED SMR, INC.,
WIRELESS VENTURES OF MEXICO, INC.,
CARLYLE-TRICOM INVESTORS, L.L.C.,
AND
CORPORACION MOBILCOM, S.A. DE C.V.
===============================================================================
2
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.3 Determination of Outstanding Securities . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2. ACQUISITIONS BY THE NEXTEL GROUP . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.1 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.2 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.3 Nextel's First Merger Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3. TREASURY SHARES; PREEMPTIVE RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.1 Agreement to Issue Treasury Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.2 Certain Antidilution Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.3 Notice of Estatutos Pre-Emptive Rights . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4. REGISTRATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5. CERTAIN COVENANTS OF THE PRINCIPAL SHAREHOLDERS AND THE COMPANY . . . . . . . . . . 16
5.1 Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.2 IPO and Alternate Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.3 Contracts with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.4 Foreign Corrupt Practices Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.5 Books, Records and Reports; Listing . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.6 Right of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.7 Obligation to Transfer Voting Securities to Control Trust . . . . . . . . . . . . . . 21
5.8 Nextel's Technology Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.9 WVM's Technology Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6. CONFIDENTIALITY COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 7. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.3 Benefits; Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.4 Entire Agreement; Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . . . 26
7.5 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.7 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.8 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.11 English Version Governs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.12 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.13 Relationship to Estatutos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.14 Nextel to Act as Agent and Primary Obligor . . . . . . . . . . . . . . . . . . . . . 29
i
3
7.15 Termination of Joint Venture Agreement . . . . . . . . . . . . . . . . . . . . . . . 29
7.16 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.17 Subordinated Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.18 Company Covenant Regarding Certain Actions . . . . . . . . . . . . . . . . . . . . . 30
7.19 [Intentionally Deleted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.20 Termination of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.21 Inconsistency with Put-Call Agreement . . . . . . . . . . . . . . . . . . . . . . . . 30
ANNEXES
ANNEX A: Registration Rights
ANNEX B: Estatutos
ANNEX C: Amendment
ANNEX D: List of Investment Banks
ANNEX E: Representations and Warranties
ANNEX F: Nextel Purchase Agreement
ANNEX G: Shareholders Resolutions
ANNEX H: [Intentionally Deleted]
ANNEX I: Bridge Note Documentation
ANNEX J: Put-Call Agreement and Amendment
ii
4
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT (including the annexes
hereto, and as such agreement and annexes may be amended or supplemented from
time to time, the "Agreement") dated as of August 23, 1996 among NEXTEL
COMMUNICATIONS, INC., a Delaware corporation formerly known as Fleet Call, Inc.
(together with its successors, "Nextel"), NEXTEL INVESTMENT COMPANY, a
wholly-owned subsidiary of Nextel Communications, Inc., (together with its
successors, "Nextel Investment"), GRUPO COMUNICACIONES SAN XXXX, S.A. DE C.V.,
a corporation organized under the laws of Mexico (together with its successors,
"Grupo"), ASSOCIATED SMR, INC., a Delaware corporation (together with its
successors, "ACC"), WIRELESS VENTURES OF MEXICO, INC., a Virginia corporation
(together with its successors, "WVM"), CARLYLE-TRICOM INVESTORS, L.L.C., a
Delaware limited liability company (together with its successors, "Carlyle"),
and CORPORACION MOBILCOM, S.A. DE C.V., a corporation organized under the laws
of Mexico (together with its successors, the "Company"). As of the Closing
Date (as defined below), this Agreement shall supersede and replace in its
entirety the original Shareholders Agreement (the "Original Shareholders
Agreement"), dated as of March 3, 1995, among the parties hereto and the
Amendment thereto, dated as of the date hereof and attached hereto as Annex C,
except for the Surviving Sections (as defined in such Amendment) of such
Amendment which are incorporated herein; provided that this Agreement shall not
be effective prior to the Closing Date (as defined below).
W I T N E S S E T H :
WHEREAS, pursuant to the terms of the Subscription Agreement, dated as
of March 3, 1995, among the Company, Nextel and Nextel Investment (as amended
or supplemented from time to time, the "Nextel Purchase Agreement") annexed
hereto as Annex F, the Company issued and sold, and Nextel purchased,
newly-issued shares of the Company's capital stock;
WHEREAS, in satisfaction of a condition to the obligations of each of
the Company, Nextel and Nextel Investment to consummate the transactions
contemplated by the Nextel Purchase Agreement, the Original Shareholders
Agreement was executed and delivered by Nextel and the Company and the other
parties hereto;
WHEREAS, pursuant to the terms of a Subscription Agreement, dated as
of the date hereof, among the Company and Nextel Investment (the "Subscription
Agreement"), the Company has agreed to issue and sell, and Nextel Investment
has agreed to purchase, newly issued shares of the Company's capital stock;
WHEREAS, pursuant to the terms of the Share Purchase and Call Option
Agreement (the "Share Purchase and Call Option Agreement"), dated as of the
date hereof, among certain shareholders of Grupo (the "Mexican Individuals")
and Nextel Investment, (i) the Mexican Individuals have agreed to sell, and
5
Nextel Investment has agreed to purchase from the Mexican Individuals, Voting
Securities and (ii) Nextel Investment has agreed to grant to each of the
Mexican Individuals the right to require Nextel Investment to sell to each of
the Mexican Individuals Voting Securities under certain circumstances;
WHEREAS, pursuant to the terms of the Put-Call Agreement (the
"Put-Call Agreement"), dated as of June 13, 1996, as amended as of the date
hereof, among ACC, WVM, Carlyle, Nextel, Nextel Investment and certain other
shareholders of the Company, Nextel Investment has agreed to grant certain
shareholders of the Company the right to sell their Beneficially Owned Voting
Securities under certain circumstances, and certain shareholders of the Company
have agreed to grant Nextel Investment the right to buy their Beneficially
Owned Voting Securities under certain circumstances, and the parties hereto
acknowledge that the Put-Call Agreement shall become effective on the Closing
Date (as defined below).
NOW, THEREFORE, in consideration of the premises and for good and
valuable consideration, the receipt of which is acknowledged, the parties
hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
1.1. Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ACC" has the meaning set forth in the first paragraph hereof.
"Accredited Investor" has the meaning set forth in Regulation D of the
Securities Act, as amended.
"Affiliate" means, as to any Person, any other Person (other than the
Company) (i) that is a Subsidiary of such Person or (ii) that directly or
indirectly through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person. For the purposes of this
definition, "control" when used with respect 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; the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" has the meaning set forth in Section 7.14 hereof.
"Agreement" has the meaning set forth in the first paragraph hereof.
"Alternate Offering" means (a) a private placement of Shares (including
a private placement of Shares to be resold
2
6
under Rule 144A under the Securities Act) and/or (b) an offering of Shares
pursuant to Regulation S under the Securities Act; provided, that a private
placement of Shares or an offering of Shares pursuant to Regulation S under the
Securities Act shall constitute an "Alternate Offering" only if either (i) it
shall be a firm commitment equity placement under Rule 144A or a firm
commitment Regulation S offering that is managed by an underwriter or
underwriters of national standing in the United States or Mexico and is
conducted in a manner that is customary for Rule 144A placements or Regulation
S offerings, as the case may be, using customary preliminary and final offering
memoranda, customary contractual documentation and roadshows in which potential
investors have an opportunity to hear from and question management of the
Company or (ii) the number of Institutional Accredited Investors purchasing
Shares in such private placement or offering under Regulation S is at least
equal to twenty. For purposes of the foregoing proviso, two or more Affiliates
purchasing Shares in a private placement shall constitute a single
institutional Accredited Investor.
"Antidilution Exercise Date" has the meaning set forth in Section
3.2(b) hereof.
"Antidilution Purchaser" has the meaning set forth in Section 3.2(a)
hereof.
"Antidilution Securities" has the meaning set forth in Section 3.2(a)
hereof.
"Beneficially Own" or "Beneficial Ownership" with respect to any
shares of capital stock means having beneficial ownership of such shares of
capital stock, including, without limitation, having ownership of the
Beneficiary Rights relating to Shares. For purposes of this definition and any
other agreement referring to this definition, (i) possession of the right to
acquire shares of capital stock shall not constitute "Beneficial Ownership" of
such shares unless such acquisition has closed, (ii) the grant of the right to
acquire shares of capital stock shall not constitute a transfer of "Beneficial
Ownership" of such shares unless such acquisition has closed, (iii) any Shares
subject to a pledge shall be deemed to be Beneficially Owned by the pledgor
unless both (a) the pledgor has breached any of its obligations under any such
pledge or any other agreement or instrument related thereto and (b) the pledgee
has exercised its rights to obtain or otherwise execute the foreclosure of such
Shares in accordance with the terms of the pledge. Notwithstanding the above,
Nextel Investment shall also be deemed to Beneficially Own the Voting
Securities subject to the Bridge Note Documentation in accordance with Section
4.06(b) of the Pledge Agreement, for so long as Grupo is in default of any of
its payment obligations (whether such payment obligations are for dollars or
otherwise) under the Bridge Note Documentation and notice is given to Grupo of
such default.
3
7
"Beneficiary Rights" has the meaning set forth in the Control Trust
Agreement.
"Board", "Board of Directors" and "Directors" refer, unless otherwise
specified, to the Company's Board of Directors.
"Bridge Note" means the promissory note issued by Grupo in favor of
Nextel Investment dated as of the date hereof and annexed hereto in Annex I.
"Bridge Note Documentation" means the Bridge Note, the Share Transfer
Agreement and the Pledge Agreement.
"Business Combination" of any corporation means a merger or
consolidation in which such corporation is a constituent corporation and
pursuant to which capital stock of such corporation is exchanged for cash,
securities or other property or a sale of all or substantially all of the
assets of such corporation and its Subsidiaries taken as a whole; provided,
however, that (i) a merger, consolidation or sale of assets of any corporation
shall not be a "Business Combination" if the ultimate Beneficial Ownership of
the capital stock of such corporation immediately after the consummation of
such transaction is substantially the same as the Beneficial Ownership of such
corporation's capital stock immediately prior to such transaction and (ii) a
"Business Combination" shall not include the merger or consolidation between
any corporation and any Subsidiary of such corporation.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in either New York, New
York or Mexico D.F., Mexico are authorized or obligated to close by law or
executive order.
"Carlyle" has the meaning set forth in the first paragraph hereof.
"Change of Control Date" means the date upon which any Person that is
(or has a Majority Affiliate that is) a manufacturer of mobile communications
equipment or mobile communications software (i) becomes a Control Owner of more
than 50% of the outstanding Voting Shares (as defined below) of Nextel, (ii)
elects or designates more than 50% of the board of directors, or comparable
governing body, of Nextel, (iii) has a legal right or power to control actions
in respect of, or a legal consent right or other legal power to veto (through
share ownership, board of director's representation, or any agreement) the
selection of, or actions or decisions taken by, any representative of Nextel or
any Qualified Affiliate thereof on the Technology Committee established
pursuant to the Estatutos or (iv) consummates a Business Combination with
Nextel in which the shareholders of such Person are the Control Owners of more
than 50% of the outstanding Voting Shares of the surviving entity. As used
herein, "Voting Shares" means shares of capital stock, or
4
8
other rights, of a Person (of whatever class) that entitle the holders thereof
to vote generally (whether at all times or only so long as no senior class of
securities has such voting power by reason of any contingency) in the election
of members of the board of directors, or comparable governing body, of such
Person.
"Closing Date" means the first date by which a closing has occurred
under each of the Share Purchase and Call Option Agreement and the Subscription
Agreement.
"Commission" means the United States Securities and Exchange
Commission or its successor.
"Company" has the meaning set forth in the first paragraph hereof.
"Company Securities" means (i) Voting Securities or other Shares and
(ii) any other agreement or security convertible into, exercisable for or
representing any other right to acquire from the Company (whether or not
currently convertible or exercisable) Voting Securities or other Shares of the
Company.
"Confidential Information" means mailing lists, customer lists,
subscription lists, processes, trade secrets, software, research, techniques,
designs or other technical data, know-how or other proprietary or confidential
information furnished by the Company and contained in or concerning the
operation or affairs of the Company whether or not such information is
described as confidential; provided that "Confidential Information" shall not
include information in the public domain other than as a result of a breach of
this Agreement or other duty of confidentiality to any party hereto.
"Control Owner" means a beneficial owner as defined in Rules 13d-3 and
13d-5 under the Exchange Act (or any successor rules), including the provision
of such Rules that a Person shall be deemed to have beneficial ownership of all
securities that such Person has a right to acquire within 60 days; provided
that, for purposes of this definition, a Person will not be deemed a beneficial
owner of, or to own beneficially, any securities if such beneficial ownership
(1) arises solely as a result of a revocable proxy delivered in response to a
proxy or consent solicitation made pursuant to, and in accordance with, the
Exchange Act and the applicable rules and regulations thereunder and (2) is not
also then reportable on Schedule 13D (or any successor schedule) under the
Exchange Act.
"Control Trust" means the trust established under the Control Trust
Agreement.
"Control Trust Agreement" means the Amended and Restated Irrevocable
Trust Agreement, dated as of the date hereof, among the parties hereto (other
than the Company) and the Control Trustee.
5
9
"Control Trust Modification Date" means March 3, 1998, in the event
the Payment Amount is greater than zero on March 3, 1998.
"Control Trustee" means the trustee of the Control Trust.
"Disinterested Director" means a member of the Board of Directors who
was not a Nominee, whether under the Control Trust or otherwise, of the Nextel
Group (or any representative thereof) and, for purposes of Section 2.3, a
member of the Board of Directors who was not a Nominee, whether under the
Control Trust or otherwise, of (a) any Principal Shareholder (or representative
thereof) that has made the Third Party Merger Proposal at issue under Section
2.3 or (b) the Nextel Group.
"Effective Date" has the meaning set forth in Section A.1 of Annex A.
"Estatutos" means the corporate organizational and governance
documents of the Company substantially in the form of Annex B hereto.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
"Exit Rights Agreement" has the meaning set forth in the Control Trust
Agreement.
"Fair Cash Value" has the meaning set forth in Section 2.3(a) hereof .
"FCPA" has the meaning set forth in Section 5.4 hereof.
"Fiscal Year" means the 12-month period beginning on January 1 and
ending on December 31, unless otherwise changed by the Company.
"Fully Diluted Ownership" means, as of any time of determination
thereof and in respect of any Person or group of Persons, the number of Voting
Securities that are Beneficially Owned by such Person or group of Persons and
all other Voting Securities of which such Person or group of Persons have the
right to acquire Beneficial Ownership directly or indirectly from the Company,
whether or not any such right is currently exercisable. For purposes of this
Agreement, when used with respect to Nextel and its Qualified Affiliates, Fully
Diluted Ownership shall include, without limitation, the Revised Option Shares
and Three Year Option Shares to the extent Nextel or its Qualified Affiliates
Beneficially Own or have a right to acquire Beneficial Ownership of such
Shares.
"Fully Diluted Ownership Percentage" means, as of any time of
determination thereof and in respect of any Person or
6
10
group of Persons, the percentage equivalent of a fraction determined by
dividing (i) such Person's or group's Fully Diluted Ownership by (ii) the
number of Fully Diluted Shares.
"Fully Diluted Shares" means, at any time of determination thereof,
the number of Voting Securities outstanding, assuming the full and
contemporaneous issuance of Shares that the Company is obligated to issue and
exercise of all options, warrants and rights then outstanding to acquire Voting
Securities from the Company, whether or not vested and whether or not treated
as outstanding by the Company. Notwithstanding the foregoing, treasury shares
as to which no Person has a right of acquisition or the Company has no
obligation to transfer shall not be deemed to be Fully Diluted Shares.
"GAAP" means generally accepted accounting principles, applied on a
consistent basis.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity or official properly
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Grantor" has the meaning set forth in the Control Trust Agreement.
"Grupo" has the meaning set forth in the first paragraph hereof.
"ICC" has the meaning set forth in Section 7.7(a) hereof.
"ICC Rules" has the meaning set forth in Section 7.7(a) hereof.
"IPO" means an initial public offering of Shares in the United States
and any other jurisdiction (if any) in which a concurrent offering is made.
"Joint Venture Agreement" has the meaning set forth in Section 7.15
hereof.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement and any capital lease).
"Majority Affiliate" means, as to any Person, another Person which
controls, is controlled by or is under common control with such Person. For
purposes of this definition, a Person shall be deemed to "control" another
Person only if such Person is a Control Owner of more than 50% of the
outstanding Voting Shares of such other Person or has elected or designated
7
11
more than 50% of the board of directors (or other governing body) of such other
Person.
"Majority Vote of the Disinterested Directors" means, with respect to
any matter, (i) the vote of a majority of the Disinterested Directors or (ii)
the written consent of a majority of the Disinterested Directors acting without
a meeting.
"Market Issuance" has the meaning specified in Section 3.2(a) hereof.
"Mexican GAAP" means GAAP as applied in Mexico.
"Mexican Individual" has the meaning set forth in the recitals hereof.
"Mexico" means the United Mexican States.
"Natel" means Nacional de Telecomunicaciones, S.A. de C.V.
"New Person" has the meaning set forth in Section 7.3(b) hereof.
"Nextel" has the meaning set forth in the first paragraph hereof.
"Nextel Group" means Nextel, its Affiliates, each Offeree Designate of
Nextel and its Affiliates.
"Nextel Investment" has the meaning set forth in the first paragraph
hereof.
"Nextel Purchase Agreement" has the meaning set forth in the recitals
hereof.
"Nominee" of any Person means each member of the Board of Directors of
the Company nominated by such Person. For purposes of this definition, a
Director shall be deemed to have been nominated by a Person through the Control
Trust if such Person (A) has by itself (or with its Qualified Affiliates) cast
the minimum number of votes in favor of such Director in the Cumulative Voting
Process under Section 6.3(a)(iii) of the Control Trust Agreement that are
necessary for such Director to be selected in such Cumulative Voting Process
under Section 6.3(a)(iii) for nomination by the Control Trustee and election to
the Board, (B) individually nominates such Director under Section 6.3(a)(i) or
6.3(a)(ii) of the Control Trust Agreement or (C) if the Control Trust is not in
effect, if such Person has by itself (or with its Qualified Affiliates) cast a
sufficient number of votes in favor of such Director to cause the election of
such Director at the shareholders meeting at which such Director was elected to
the Board.
8
12
"Offeree Designate" has the meaning set forth in the Control Trust
Agreement.
"Original Shareholder Party" means each of ACC, Carlyle, Grupo, Nextel
and WVM.
"Party" means each of the Company and each Principal Shareholder.
"Payment Amount" means $76,818,182 less (i) the amount of indebtedness
outstanding under the Bridge Note Documentation on March 3, 1998 less (ii) the
amount paid by Nextel and its Qualified Affiliates for Voting Securities in
purchases from each of the Mexican Individuals and/or the Company, under the
Share Purchase and Call Option Agreement (excluding any amounts set off as the
result of the exercise of the Call Option (as defined in the Share Purchase and
Call Option Agreement)), the Subscription Agreement, the Revised Option
Agreement, the Three Year Option Agreement and the Bridge Note Documentation,
less (iii) the U.S. dollar value (attributed to consideration under the terms
of the RadioCel Acquisition Agreement or in the Company's shareholders
resolutions in connection therewith) contributed (whether in securities,
through the incurrence of transaction costs or otherwise) by Nextel and its
Qualified Affiliates to the Company in a capital increase, to the extent that
the shareholders resolution authorizing such capital increase requires the
Company or its designee to transfer such consideration to RadioCel, S.A. de
C.V. or its designee under the terms of the RadioCel Acquisition Agreement or
otherwise recognizes the value of such consideration in connection with the
RadioCel Acquisition Agreement, including, without limitation, as transaction
costs in connection with the RadioCel Acquisition Agreement (it being
understood, that the aggregate dollar value under this clause (iii) may not
exceed US$45 million) less (iv) the amount paid by Nextel and its Qualified
Affiliates for Voting Securities in purchases from the Company, in connection
with any capital increase to the extent such amount is not covered by clause
(ii) or (iii) above, if both (a) any Original Shareholder Party together with
its Qualified Affiliates fails to contribute, in the aggregate, a percentage of
such capital increase which is calculated by means of a fraction, the numerator
of which is the number of Voting Securities Beneficially Owned by such Original
Shareholder Party immediately prior to such capital increase and the
denominator of which is the number of outstanding Voting Securities
Beneficially Owned by all shareholders who participate in the capital increase
immediately prior to such capital increase and (b) Nextel and its Qualified
Affiliates contribute, in the aggregate, at least a percentage of such capital
increase which is calculated by means of a fraction, the numerator of which is
the number of Voting Securities Beneficially Owned by Nextel and its Qualified
Affiliates immediately prior to such capital increase and the denominator of
which is the number of outstanding Voting Securities Beneficially Owned by all
9
13
shareholders who participate in the capital increase immediately prior to such
capital increase.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity, of whatever nature.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof and annexed hereto in Annex I, which secures obligations of Grupo under
the Bridge Note.
"Principal Shareholder" means (a) each Original Shareholder Party, (b)
each Qualified Affiliate thereof and (c) each Offeree Designate that has
acquired Beneficiary Rights pursuant to Section 5 of the Control Trust
Agreement, in the case of each such Person under clauses (a), (b) and (c)
above, in its capacity as a Person Beneficially Owning Shares.
"Principal Shareholder Group" means each Original Shareholder Party
and its Qualified Affiliates.
"Put-Call Agreement" has the meaning set forth in the recitals hereof.
"Qualified Affiliate" means an Affiliate of an Original Shareholder
Party: (a) that has agreed (i) to be bound by the terms of this Agreement and,
if in effect, the Control Trust Agreement with respect to its Beneficial
Ownership of any of the Company Securities and (ii) prior to ceasing to be an
Affiliate of such Original Shareholder Party, to Transfer Beneficial Ownership
in all Company Securities and rights and obligations under this Agreement and,
if in effect, the Control Trust Agreement to such Original Shareholder Party or
another Qualified Affiliate thereof; and (b) as to which such Original
Shareholder Party has agreed to be liable as a primary obligor, and not merely
as a surety, for the obligations of such Qualified Affiliate under this
Agreement and, if in effect, the Control Trust Agreement and any other
agreement or instrument executed and delivered by such Qualified Affiliate
pursuant hereto or thereto. Nextel Investment shall be deemed to be a
Qualified Affiliate of Nextel.
"Qualified IPO" has the meaning set forth in the Control Trust
Agreement.
"RadioCel Acquisition Agreement" means an 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.
"Register", "registered" and "registration" has the meaning set forth
in Section A.1 of Annex A.
10
14
"Registration Right Transferee" has the meaning set forth in Section
A.1 of Annex A.
"Registrable Securities" has the meaning set forth in Section A.1 of
Annex A.
"Representative" has the meaning set forth in Section A.1 of Annex A.
"Requirements of Law" means, as to any Person, any law, rule,
regulation, order, judgment, decree or determination of any arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its properties or to which such Person or any of its
property is subject.
"Revised Option Agreement" means the option, issued as of March 3,
1995, originally titled the "Eighteen Month Option Agreement", and amended and
restated as of the date hereof, by the Company to Nextel, which grants Nextel
or its Qualified Affiliate the right to acquire, and to obligate the Company to
issue and sell, newly issued Voting Securities.
"Revised Option Shares" mean the Voting Securities that would be
acquired by Nextel or its Qualified Affiliate, and issued and sold by the
Company, under the Revised Option Agreement.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Share Purchase and Call Option Agreement" has the meaning set forth
in the recitals hereto.
"Share Transfer Agreement" means the Share Transfer Agreement, dated
as of the date hereof and annexed hereto in Annex I.
"Shares" means the shares of capital stock of the Company, in any
class or series.
"Shareholder" means any Person that has Beneficial Ownership of
Shares.
"Subscription Agreement" has the meaning set forth in the recitals
hereto.
"Subsidiary" of any Person, means any other Person (except that
neither the Company nor any of its Subsidiaries shall be deemed a "Subsidiary"
of any Shareholder) as to which such Person possesses, directly or indirectly,
either (i) more than 50% of the voting securities of such other Person or (ii)
the power to direct or cause the direction of the management
11
15
and policies of such other Person whether through the ownership of voting
securities, by contract or otherwise.
"Technical Committee" has the meaning set forth in the Control Trust
Agreement.
"Technology Committee" has the meaning set forth in the Control Trust
Agreement.
"Third Party Merger Proposal" has the meaning set forth in Section
2.3(a) hereof.
"Three Year Option Agreement" has the meaning set forth in the Nextel
Purchase Agreement.
"Three Year Option Shares" has the meaning set forth in the Nextel
Purchase Agreement.
"Threshold Percentage" means 15%; provided, however, that the
"Threshold Percentage" shall be 5% so long as Grupo and its Qualified
Affiliates have not disposed after January 31, 1996 of Beneficial Ownership of
any Voting Securities to any Person other than (a) to the Mexican Individuals
who have subsequently transferred such Voting Securities to members of Nextel's
Principal Shareholder Group, (b) to the Company pursuant to the resolutions
attached hereto as Annex G or (c) to any member of Grupo's Principal
Shareholder Group.
"Transfer" means any registration of transfer, transfer, assignment,
sale, pledge, hypothecation or other change of ownership of any kind.
"Treasury Securities" has the meaning set forth in Section 3.2(a)
hereof.
"Treasury Stock" has the meaning set forth in Section 3.1 hereof.
"United States" or "U.S." means the United States of America.
"U.S. GAAP" means GAAP as applied in the United States.
"Voting Securities" means all shares of capital stock of the Company
(of whatever class) that entitle the holders thereof to vote generally in the
election of Directors.
"WVM" has the meaning set forth in the first paragraph hereof.
"WVM Group" means WVM, its Affiliates, each Offeree Designate of WVM
and its Affiliates.
12
16
1.2 Other Definitional Provisions. (a) All terms defined in this
Agreement shall have the defined meanings when used in any certificate, report
or other document prepared or delivered pursuant hereto, unless the context
otherwise requires.
(b) Any term defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
(c) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the neuter
and feminine, where the context so permits.
(d) The words "hereof", "herein" and "hereunder", and words of
similar import, when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. References to
Sections and Annexes shall refer to Sections of and Annexes to this Agreement,
unless otherwise expressly provided.
(e) All references to "$" or "dollars" refer to United States
dollars.
(f) An amount to be paid in "$" or "dollars" shall be paid in U.S.
dollars, but any amount to be measured for purposes of determining compliance
with a standard set forth in this Agreement in "$" or "dollars" may be so
measured in a foreign currency and shall be translated into U.S. dollars at the
average of the then prevailing free market buy and sell rates published, as of
the date of determination, in The Wall Street Journal or another newspaper in
wide circulation in the United States.
(g) For purposes of this Agreement, a Subsidiary shall be deemed
to be wholly-owned by the Company notwithstanding the fact that a nominee of
the Company owns certain Shares of such Subsidiary to comply with the
requirements of Mexican law that a sociedad anonima or sociedad anonima de
capital variable have more than one shareholder, provided that the Company
directly or indirectly owns at least 98% of the equity of such Subsidiary.
(h) As used herein, "preemptive rights" includes any antidilution
rights under Section 3.2 hereof.
(i) For purposes of this Agreement, in calculating the Beneficiary
Rights of Grupo and/or its Qualified Affiliates or otherwise in connection with
the Voting Securities relating to Beneficiary Rights of Grupo and/or its
Qualified Affiliates, shares held by employees of the Company, whether through
the Control Trust or otherwise, shall not be deemed to be Beneficially Owned by
the Principal Shareholder Group of Grupo until Grupo or any of its Qualified
Affiliates Beneficially Owns such shares.
13
17
1.3 Determination of Outstanding Securities. (a) For purposes of
this Agreement, when calculating the number of the Company Securities
outstanding at any time, such number shall be adjusted to take into account any
dividend in the form of Company Securities or other distribution in the form of
Company Securities, any issuance of Company Securities for the purpose of
capitalizing premiums, stock-split, spin-off, combination, recapitalization,
reclassification, exchange, merger, consolidation or any other change or
adjustment in respect of the total Company Securities outstanding.
(b) Company Securities held in the treasury of the Company shall
not be included when calculating the number of the Company Securities
outstanding.
SECTION 2. ACQUISITIONS BY THE NEXTEL GROUP
2.1 [Intentionally Omitted]
2.2 [Intentionally Omitted].
2.3 Nextel's First Merger Right. (a) In the event (i) a proposal
for a tender or exchange offer to acquire a majority of the outstanding Voting
Securities or to effect a Business Combination of the Company has been
presented to the Company by a Person other than Nextel or any of its Affiliates
(a "Third Party Merger Proposal"), (ii) the Board of Directors is considering,
and has not rejected, such proposal and (iii) the Fully Diluted Ownership
Percentage of Nextel and its Qualified Affiliates is at least 20%, then the
Company shall give Nextel prompt written notice of such Third Party Merger
Proposal. If such Third Party Merger Proposal provides for non-cash
consideration that can reasonably be given a fair cash value by an investment
banking firm of national standing in the United States or Mexico (a "Fair Cash
Value"), then the Company shall promptly engage an investment banking firm to
determine the Fair Cash Value of the Third Party Merger Proposal. Such
investment banking firm shall be selected by a Majority Vote of the
Disinterested Directors from a list of four nominees proposed by Nextel from
the list of investment banks set forth on Annex D; provided that if Nextel does
not submit to the Company a list of four nominees from Annex D within five days
of notice to Nextel of the Third Party Merger Proposal, then the Disinterested
Directors shall be free to select any investment bank listed on Annex D. If,
on or prior to the later of the fifth day after notice from the Company of the
Fair Cash Value of the Third Party Merger Proposal (as determined by the
investment banking firm engaged by the Company) and the twentieth day following
notice to Nextel of the Third Party Merger Proposal, Nextel shall have
submitted to the Board of Directors an alternative proposal providing for (x) a
Fair Cash Value equal to or greater than the Third Party Merger Proposal
(provided that this condition shall not be satisfied if the investment banking
firm engaged by the Company has advised the Board that, in its opinion, the
Fair Cash
14
18
Value of the Third Party Merger proposal is greater than the Fair Cash Value of
the Nextel proposal) and (y) all other terms and conditions are substantially
comparable to those of the Third Party Merger Proposal (it being understood
that Nextel shall not be required, in order to satisfy this condition, to
submit an alternative proposal providing for a closing of the proposed
transaction prior to the ninetieth day after the submission of the Third Party
Merger Proposal), then (unless the alternative offer made by Nextel expires or
is otherwise terminated or the transactions contemplated thereby fail to be
consummated in accordance with the terms thereof as a result of any action or
omission by a member of the Nextel Group) each Principal Shareholder (i) shall
not permit any of its Nominees to vote to accept or recommend approval of such
Third Party Merger Proposal and (ii) may (but shall not be required to) cause
each of its Nominees to vote to accept or recommend approval of Nextel's
proposal. Each Principal Shareholder shall vote against, shall take whatever
action is reasonably necessary in respect of the Control Trust to cause the
Voting Securities related to its Beneficiary Rights therein to be voted against
and shall not permit any of its Nominees to vote to accept or recommend,
approval of any resolution, process, procedure, requirement or other action
considered by the Board of Directors or any committee thereof with respect to
any Third Party Merger Proposal that provides the Person that has made a Third
Party Merger Proposal with any information regarding, or access to, or any
direct or indirect payment of any expense or conferral of any break-up fee or
lock-up option in any auction or bidding process from, the Company in
connection with such Third Party Merger Proposal that is not also available to
Nextel; provided, however, that any Principal Shareholder may vote for, may
take whatever action is necessary in respect of the Control Trust to cause the
Voting Securities underlying its Beneficiary Rights therein to be voted for and
may permit any of its Nominees to vote to accept or recommend any such
resolution, process, procedure or requirement in the event that (A) Nextel has
not satisfied the conditions set forth in clauses (x) and (y) above on or prior
to the later of the fifth day after notice from the Company of the Fair Cash
Value of the Third Party Merger Proposal (as determined by the investment
banking firm engaged by the Company) and the twentieth day following notice to
Nextel of the Third Party Merger Proposal or (B) the alternative offer made by
Nextel expires or is otherwise terminated or the transactions contemplated
thereby fail to be consummated in accordance with the terms thereof as a result
of any action or omission by a member of the Nextel Group.
(b) In the event that the Board accepts or recommends a Third Party
Merger Proposal in accordance with this Section 2.3 and such Third Party Merger
Proposal does not close within one year of the date of such acceptance or
recommendation, then such Third Party Merger Proposal shall be subject to
compliance again with the provisions of this Section 2.3.
15
19
(c) In the event that Nextel submits an alternative proposal pursuant
to Section 2.3(a), each Principal Shareholder shall cause its Nominees to
extend reasonable cooperation to Nextel in connection with the review and
evaluation of such proposal.
(d) Nothing in this Section 2.3 shall be construed to preclude the
Board of Directors from soliciting or considering proposals from Persons other
than Nextel or any of its Affiliates (including new or modified proposals from
any Person that has made a Third Party Merger Proposal) in addition or as
alternatives to a Third Party Merger Proposal or any proposal made by Nextel or
any of its Affiliates pursuant to this Section 2.3 or otherwise (provided that
the Company shall comply with the provisions of this Section 2.3 with respect
to any such new or modified proposal that is a Third Party Merger Proposal).
Notwithstanding any other provisions of subsections (a), (b) and (c) of this
Section 2.3, any member of the Board of Directors may take any actions that
such member determines in good faith, based on the advice of legal counsel, to
be legally required, and no Principal Shareholder shall be in breach of this
Section as a result of any such actions.
SECTION 3. TREASURY SHARES; PREEMPTIVE RIGHTS
3.1 Agreement to Issue Treasury Shares. Each of the Original
Shareholder Parties and Nextel Investment hereby consents to the issuance of
508,492 Shares of N$1,000 par value (made pursuant to a shareholders'
resolution attached hereto in Annex G) to be held in the treasury of the
Company for the purpose of subsequent resale in one or more public offerings or
private placements (the "Treasury Stock") (it being understood that such
consent to the issuance into treasury does not extend to subsequent transfers
of such shares by the Company except as provided herein). Each of the Original
Shareholder Parties and Nextel Investment hereby waives (and shall cause each
of its Affiliates to waive) any pre-emptive rights it has with respect to the
issuance of the Treasury Stock, whether arising under the Estatutos, Mexican
law or otherwise. Each of the Original Shareholder Parties and Nextel
Investment agrees to take (and to cause its Affiliates to take) such actions,
including, without limitation, any actions in respect of the Control Trust, as
are necessary or reasonably requested by the Company to effect such issuance of
Treasury Stock into the treasury of the Company and waiver of pre-emptive
rights.
3.2 Certain Antidilution Rights. (a) Notwithstanding Section
3.1, in the event that the Company transfers any Shares of the Treasury Stock
or any rights, warrants or options to acquire, Shares of Treasury Stock (any
such Shares, rights, warrants or options being "Treasury Securities" and any
such transfer being a "Market Issuance"), the Company shall provide each
Principal Shareholder Group with a Fully Diluted Ownership Percentage of at
least 10% (an "Antidilution Purchaser") the
16
20
right to acquire a number of Shares, rights, warrants or options to acquire
Shares (corresponding to the form of the Treasury Securities) of Treasury Stock
(the "Antidilution Securities"), equal to the sum of (x) the product of (i) the
number of Treasury Securities being transferred in the Market Issuance
multiplied by (ii) the percentage of outstanding Shares of the Company owned by
such Antidilution Purchaser as of a date (the "Calculation Date") occurring 10
Business Days prior to the earlier of (A) the date of the notice by the Company
of the Antidilution Exercise Date referred to below and (B) the closing date of
the Market Issuance plus (y) such additional amount of Shares as will result in
such Antidilution Purchaser owning, after giving effect to the Market Issuance
and the delivery of Shares to all Antidilution Purchasers in connection with
the exercise of antidilution rights under this Section, a percentage of such
Treasury Securities and all such additional Shares delivered pursuant to this
Section equal to the percentage of outstanding shares owned by such
Antidilution Purchaser on the Calculation Date. Notwithstanding the foregoing,
the term "Treasury Securities" shall not include the Revised Option Shares, the
Three Year Option Shares, Shares issued under the employee stock option plan in
effect as of the date hereof or Shares issued under the Subscription Agreement.
(b) In order to exercise its right under this Section 3.2 to acquire
a number of Antidilution Securities as specified in Section 3.2(a) hereof each
Antidilution Purchaser must: (i) on or prior to the Antidilution Exercise Date
(as defined below) provide a written undertaking to the Company, accompanied by
such guaranties and/or collateral as the Company may reasonably require, to
purchase all or any portion (expressed as a percentage) of the Antidilution
Securities to which such Antidilution Purchaser will have the right to purchase
under Section 3.2(a) hereof at the same purchase price, at which, and on the
other terms and conditions (except for the timing of closing or otherwise as
provided in this Section 3.2) pursuant to which, such Treasury Securities are
initially sold to the underwriter(s) or, in the case of a private placement, to
the initial purchaser(s); and (ii) comply with any restrictions on resale or
other transfer of such Antidilution Securities and such other terms and
conditions in respect of the purchase of such Antidilution Securities, as shall
be reasonably requested by the Company and/or, in the case of a public
offering, the managing underwriter(s) or, in the case of a private placement,
the manager(s) for the initial purchaser(s). As used herein, "Antidilution
Exercise Date" means a date selected by the Company and notified to each
Antidilution Purchaser on at least five Business Days' written notice, which
notice shall be given not earlier than the date of the pricing of the Market
Issuance and not later than the closing of the Market Issuance. Any such
notice of the Antidilution Exercise Date shall also include the type and number
of Treasury Securities included in the Market Issuance, the terms and
conditions of the Market Issuance and the number of Antidilution Securities the
Antidilution Purchaser would be entitled to purchase under this Section 3.2.
17
21
(c) The closing for the purchase of Antidilution Securities by any
Antidilution Purchaser exercising its rights under this Section 3.2 shall occur
on the closing date of such Market Issuance or on such later date selected by
the Company on at least five Business Days' notice to the Antidilution
Purchasers provided that such date is not earlier than the closing date of the
Market Issuance and not more than five Business Days following the closing date
of the Market Issuance; it being understood that the closing of the purchase of
the Antidilution Securities may occur on the Antidilution Exercise Date. Such
closing shall occur in the Company's principal offices in Mexico City or at
such other place or on such other date as to which the Company and such
Antidilution Purchaser may mutually agree. In connection with such closing,
the Company and such Antidilution Purchaser shall deliver to each other such
customary closing certificates and legal opinions as may be reasonably
requested by such other party.
3.3 Notice of Estatutos Pre-Emptive Rights. At least fifteen days
prior to each deadline for the exercise of pre-emptive rights under Article
Seven of the Company's Estatutos, the Company shall provide each Original
Shareholder Party with notice of such Principal Shareholder's opportunity to
exercise its pre-emptive right under Article Seven of the Company's Estatutos
and any other information relevant to such opportunity to exercise pre-emptive
rights that, pursuant to such Article Seven, the Company has either published
in the Diario Oficial de la Federacion and in a newspaper of general
circulation in the Company's domicile or announced at a shareholders meeting at
which all of the Shares representing the capital stock of the Company were
represented; provided, however, that in the event the Company receives a
written opinion from counsel experienced in such matters that provision of such
notice would violate applicable Requirements of Law, the Company shall be
released from its obligations to provide such notice hereunder.
SECTION 4. REGISTRATION RIGHTS
The Principal Shareholders shall have the registration rights set
forth in Annex A, subject to the requirement that all transfers be made in
accordance with Section 5.2 of the Control Trust while the Control Trust is in
effect.
SECTION 5. CERTAIN COVENANTS OF THE PRINCIPAL SHAREHOLDERS AND THE
COMPANY
5.1 Board of Directors. (a) The number of members of the Board of
Directors of the Company will be set at nine, and will be changed only in
accordance with the Estatutos and, while in effect, the Control Trust
Agreement. Except as otherwise required by law, the Board of Directors of the
Company shall follow the procedures set forth below.
18
22
(i) Meetings. The Board of Directors shall hold at least four
regularly scheduled meetings per year at such times as may from time to time be
fixed by resolution of the Board of Directors, and no notice (other than the
resolution, a copy of which shall be delivered to each Principal Shareholder
and Director at least 30 days prior to the first meeting) need be given as to a
regularly scheduled meeting. One of the four regularly scheduled meetings of
the Board of Directors shall be held without notice immediately following the
annual meeting of the Shareholders.
(ii) Agenda. A reasonably detailed agenda shall be supplied to
each Director a reasonable time in advance of each meeting of the Board of
Directors, together with other appropriate documentation with respect to agenda
items calling for Board of Directors action, to inform adequately Directors
regarding matters to come before the Board.
(iii) Powers of the Board. Except as otherwise set forth in the
Estatutos, the Board of Directors shall reserve to itself the power to approve
transactions that are of a type customarily subject to board approval as a
matter of good corporate practice, and shall not delegate to any committee of
the Board of Directors or to any officers of the Company the authority to
deprive the Principal Shareholders of their rights under this Agreement. All
committees of the Board will report to and be accountable to the Board. The
Board of Directors shall establish, in cooperation with the Director General of
the Company, a schedule for Board review or action, as appropriate, with
respect to matters which shall typically come before the Board of Directors,
including, but not limited to:
(x) annual business plans (including capital expenditures and
operating budgets);
(y) major collaborative arrangements with third parties not in the
ordinary and normal course of business as theretofore
conducted; and
(z) appointments of officers.
(iv) Committees. Each Principal Shareholder Group having the right
to nominate, without the participation of any member of another Principal
Shareholder Group, at least two Directors (under Section 6.3(a) of the Control
Trust Agreement) shall have the right to include at least one of such Directors
on any executive committee, audit committee, compensation committee or any
other committee of the Board performing similar functions (other than the
Technology Committee).
(b) [Intentionally omitted]
(c) Majority Vote of Board of Directors. Except as provided in
the Estatutos, Section 2.3 hereof, as otherwise
19
23
agreed to among all of the Principal Shareholders or as required by applicable
law, all actions of the Board of Directors shall be taken upon or pursuant to a
majority vote of the Board of Directors entitled to vote thereupon.
(d) [Intentionally omitted]
(e) Influence Over Natel. The Company shall, to the extent
permitted by applicable law, require each member it has nominated to the board
of directors (or similar governing body) or committee thereof of Natel (or any
other Person which is not a Subsidiary of the Company and in which the Company
or any of its Subsidiaries has nominated a member of the board of directors or
similar governing body) (i) to consult with the Company's Board of Directors
with respect to any vote or other action taken by such board of directors (or
similar governing body) or committee thereof on any matter specified in clauses
I through VI of Article 29 of the Estatutos or Section 6.3(d) of the Control
Trust Agreement and (ii) to act only on any matter specified in clauses I
through VI of Article 29 of the Estatutos or Section 6.3(d) of the Control
Trust Agreement upon the receipt of the prior consent of (A) if Grupo and its
Qualified Affiliates Beneficially Own at least the Threshold Percentage of the
outstanding Voting Securities, Grupo and (B) if Nextel and its Qualified
Affiliates Beneficially Own at least 20% of the outstanding Voting Securities
and the Control Trust Modification Date has not occurred, Nextel.
5.2 IPO and Alternate Offering. Subject to the provisions of this
Agreement, the Control Trust and the Estatutos, each Principal Shareholder
agrees that it will take such actions as may be reasonably requested by the
Company to support an IPO or Alternate Offering. The Company hereby agrees and
each Principal Shareholder hereby agrees to (i) vote its Voting Securities,
(ii) cause its Nominees to vote, (iii) cause its representatives on the
Technical Committee to vote and (iv) instruct the Control Trustee to vote such
Principal Shareholder's Voting Securities, in the case of each of (i), (ii),
(iii) and (iv), in favor of the Company's compliance with its agreement under
this Section 5.2 that the Company Securities issued in the IPO, if any, shall
be of the same class and series as all of the Voting Securities Beneficially
Owned by each of the Principal Shareholders and their Qualified Affiliates as
of the closing of the IPO, if any (or into which all of such Voting Securities
Beneficially Owned by each of the Principal Shareholders and their Qualified
Affiliates are convertible without any restriction which would materially
prevent, impair or delay such conversion).
5.3 Contracts with Affiliates. The Company will not, and will not
permit any Subsidiary (and prior to the time Natel is a Subsidiary, to the
extent the Company has the power to control such actions by Natel, Natel) to,
enter into any contract or transaction with or for the benefit of any of its
Affiliates
20
24
(other than wholly-owned Subsidiaries of the Company) which is not at prices
and on other terms at least as favorable to the Company or such Subsidiary
(and, if applicable, Natel) as those which could be obtained on an arms-length
basis from an unaffiliated third party.
5.4 Foreign Corrupt Practices Act. The Company shall, and shall
cause each of its Subsidiaries (and, prior to the time Natel is a Subsidiary,
to the extent the Company has the power to control such compliance by Natel,
Natel) to, comply with all laws applicable to any of them or to their
businesses relating to improper or illegal payments, gifts or gratuities, and
the Company shall not, and shall cause each of its Subsidiaries (and, prior to
the time Natel is a Subsidiary, to the extent the Company has the power to
control such payment by Natel, Natel) not to, pay anything of value, directly
or indirectly, to any government official in order to obtain business in
violation of any applicable laws. The Parties acknowledge that the Foreign
Corrupt Practices Act of the United States (the "FCPA") is a criminal statute
which imposes upon United States companies mandatory affirmative duties to make
good faith efforts to influence any less-than-majority-owned foreign entity to
devise and maintain a system of internal accounting controls consistent with
the FCPA to the extent reasonable under the circumstances.
5.5 Books, Records and Reports; Listing. (a) The books and
records of the Company and its Subsidiaries (and, prior to the time Natel is a
Subsidiary, to the extent the Company has the power to control Natel's book and
record keeping, Natel) shall, subject to applicable law, be kept in the English
or Spanish language, except that books and records maintained in a country
other than Mexico, in connection with 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 Natel's book and record keeping, Natel's) conduct of business
in such country may be maintained in the official language of such country.
Each Director and Principal Shareholder Group shall be permitted to bring an
interpreter to any meeting attended by such director or any member of such
Principal Shareholder Group. Annually upon the close of the Fiscal Year (and
at such other times as shall be approved by the Board of Directors), all such
books and accounts shall be audited by the Company's independent accountants.
(b) No later than the date upon which the Company becomes subject
to the reporting requirements of the Exchange Act, the Company shall maintain
and make available to each Principal Shareholder all books, records, accounts
and reports required by (and compiled in accordance with) applicable Exchange
Act reporting requirements.
(c) The Company shall furnish each Principal Shareholder with the
following:
21
25
(i) as soon as available and in any event within 180 days after
the end of each financial year of the Company, copies of the
consolidated and consolidating balance sheets of the Company and its
Subsidiaries (and, prior to the time Natel is a Subsidiary, to the
extent the Company has the power to control Natel's preparation and
distribution of audited year-end financial statements, Natel) as of
the end of such financial year and of the related consolidated and
consolidating profit and loss account, cash flow statements and
statements of total recognized gains and losses of the Company and
such Subsidiaries for such financial year, all prepared in accordance
with Mexican GAAP (and reconciled to United States GAAP to the extent
such reconciliation had previously been done by the Company) and
stating in comparative form the respective consolidated and
consolidating figures as of the end of and for the previous financial
year and accompanied by a report thereon of independent chartered
accountants of recognized international standing;
(ii) as soon as available and in any event within 90 days after the
end of each consecutive three-month period in each financial year of
the Company (with the first such period beginning on the first day of
such financial year) other than the last such three-month period of
such financial year, copies of the consolidated and consolidating
financial statements of the Company and its Subsidiaries (and, prior
to the time Natel is a Subsidiary, to the extent the Company has the
power to control Natel's preparation and distribution of quarterly
financial statements, Natel) for such period, all prepared in
accordance with Mexican GAAP with normal recurring accruals (subject
to year-end adjustments and except for the absence of detailed notes)
and stating in comparative form the respective consolidated and
consolidating figures as of the end of and for the corresponding
period in the previous financial year;
(iii) such other financial and operating information as may be
reasonably requested by any Principal Shareholder from time to time.
(d) The Company, at its sole expense, will timely supply Nextel
and The Associated Group, Inc. with any financial or other information
regarding the Company that Nextel or The Associated Group, Inc., respectively,
is required to include in any report or statement Nextel or The Associated
Group, Inc. is required to file with any regulatory body, agency, stock market
or stock exchange, in a manner that complies with the requirements of the
entity with which it is to be filed, but only to the extent such information
can be made available without
22
26
unreasonable effort or expense by the Company (it being understood that after
the Company has completed an IPO or any other transaction pursuant to which the
Company becomes subject to the reporting requirements of the Exchange Act, such
information would include, without limitation, financial information concerning
the Company conformed to U.S. GAAP standards), and shall certify to Nextel and
The Associated Group, Inc. in writing as to the accuracy and completeness of
the information so furnished.
(e) After completing an IPO, the Company will (at its sole
expense) maintain the eligibility of Shares for quoting or listing on at least
one major stock exchange, over-the-counter or other securities market located
in the United States.
5.6 Right of Inspection. For so long as any Principal Shareholder
shall have a Nominee, such Principal Shareholder or its duly authorized
Representatives shall have reasonable access, at any time during normal
business hours and upon reasonable notice, to books, records and employees of
the Company and its Subsidiaries (and, prior to the time Natel is a Subsidiary,
to the extent the Company has the power to control such access to Natel,
Natel), subject to Requirements of Law and confidentiality obligations that at
the time may be owed by the Company to third parties, provided that such
Principal Shareholder and its Representatives shall have entered into such
confidentiality agreements as may be reasonably required by the Company. The
Company shall, to the extent practicable, cause each Subsidiary (and, prior to
the time Natel is a Subsidiary, to the extent the Company has the power to
control the capacity of Natel to extend such cooperation, Natel) and its and
such Subsidiary's directors, officers and employees (and, prior to the time
Natel is a Subsidiary, the directors, officers and employees of Natel to the
extent the Company has the power to control their capacity to extend such
cooperation), and the Company's independent accountants, to extend reasonable
cooperation for such purposes.
5.7 Obligation to Transfer Voting Securities to Control Trust.
While the Control Trust is in effect, upon obtaining the Beneficial Ownership
of any Voting Securities, each Principal Shareholder shall (and, upon any of
such Principal Shareholder's Affiliates which are not Qualified Affiliates
becoming a transferee of Voting Securities, shall cause such Affiliate to
become a Qualified Affiliate and to) immediately Transfer such Voting
Securities into the Control Trust.
23
27
5.8 Nextel's Technology Consent.
(a) If, at any time following the occurrence of a Change of Control
Date and prior to the termination of the Control Trust, Nextel would, but for
the occurrence of such Change of Control Date, be entitled to designate at least
one representative on the Technology Committee pursuant to Section 12 of the
Control Trust, the Company shall not make any technology decision relating to
the Company's digital mobile systems including, without limitation, technology
decisions related to vendor selection, build-out and system design, without the
consent of Nextel, such consent not to be unreasonably withheld. Notwithstanding
the foregoing, no such consent shall be required if the decision involves (i)
the selection of any mobile communications technology when one of the
alternatives under consideration is a Proprietary Technology (as defined below)
of Nextel or a Majority Affiliate (each being a "Nextel Supplier") or (ii) the
selection of a manufacturer of any mobile communications equipment when one of
the manufacturers under consideration is a Nextel Supplier; provided that the
foregoing consent right shall be reinstated at any time that all Nextel
Suppliers have been eliminated from consideration. As used herein, "Proprietary
Technology" means any technology (or component or embodiment thereof) that is
not made generally available by license or otherwise to manufacturers of
telecommunications equipment.
(b) After the termination of the Control Trust and so long as (i)
the Control Trust Modification Date has not occurred, (ii) Nextel and its
Qualified Affiliates Beneficially Own at least 10% of the Outstanding Voting
Securities and (iii) WVM has not waived its rights under Section 5.9 hereof, no
Principal Shareholder shall vote at a shareholders meeting or permit any of its
Nominees to vote at a Board of Directors meeting to approve any technology
decisions relating to the Company's digital mobile systems, including, without
limitation, technology decisions related to vendor selection, build-out and
system design, without the consent of Nextel, such consent not to be
unreasonably withheld. Notwithstanding the foregoing, no consent shall be
required if the decision involves (A) the selection of any mobile communications
technology when one of the alternatives under consideration is a Proprietary
Technology of a Nextel Supplier or (B) the selection of a manufacturer of any
mobile communications equipment when one of the manufacturers under
consideration is a Nextel Supplier (provided that the foregoing consent right
shall be reinstated at any time that all Nextel Suppliers have been eliminated
from consideration).
(c) Notwithstanding the provisions of Sections 5.8(a) and 5.8(b)
hereof, any Principal Shareholder or member of the Board of Directors may take
any action that it determines in good faith, based on the advice of legal
counsel, to be legally required, and no Principal Shareholder shall be in
breach of Section 5.8(a) or 5.8(b) hereof as a result of such action.
24
28
5.9 WVM's Technology Consent. After the termination of the
Control Trust and so long as WVM and its Qualified Affiliates Beneficially Own
at least 5% of the outstanding Voting Securities, no Principal Shareholder
shall vote at a shareholders meeting or permit any of its Nominees to vote at a
Board of Directors meeting to approve any technology decisions relating to the
Company's digital mobile systems, including, without limitation, technology
decisions related to vendor selection, build-out and system design, without the
consent of WVM, such consent not to be unreasonably withheld. Notwithstanding
the foregoing, (i) no consent shall be required if the decision involves (a)
the selection of any mobile communications technology when one of the
alternatives under consideration is a Proprietary Technology of a member of the
WVM Group (a "WVM Supplier") or (b) the selection of a manufacturer of any
mobile communications equipment when one of the manufacturers under
consideration is a WVM Supplier (provided that the foregoing consent right
shall be reinstated at any time that all WVM Suppliers have been eliminated
from consideration) and (ii) any Principal Shareholder or member of the Board
of Directors may take any action that it determines in good faith, based on the
advice of legal counsel, to be legally required, and no Principal Shareholder
shall be in breach of this Section 5.9 as a result of such action.
5.10 Business Plans. A Shareholders meeting or a Board meeting of
the Company shall be held annually at which a vote will be taken on the
adoption of a new business plan for the Company.
5.11 Transfer of Beneficial Ownership of Voting Securities.
(a) Notwithstanding anything to the contrary in this Agreement or
the Control Trust Agreement, the parties hereto hereby agree that the transfer
of Beneficial Ownership of Voting Securities by Grupo to the Mexican
Individuals shall not be subject to any provision of this Agreement or the
Control Trust Agreement, provided, that such transfer to the Mexican
Individuals consists solely of Voting Securities that are in turn transferred
immediately by the Mexican Individuals to Nextel Investment under the terms and
conditions of the Share Purchase and Call Option Agreement.
(b) Notwithstanding anything to the contrary in this Agreement or
the Control Trust Agreement, the parties hereto hereby agree that the
redemption by the Company of Voting Securities Beneficially Owned by Grupo
pursuant to the resolutions attached hereto as Annex G shall not be subject to
any provision of this Agreement or the Control Trust Agreement.
25
29
SECTION 6. CONFIDENTIALITY COVENANTS.
From and after the date hereof, each Original Shareholder Party shall,
and shall cause each of its Affiliates to, keep confidential any Confidential
Information and shall not, and shall cause each of its Affiliates not to, use
any Confidential Information for any purpose, provided that this Section 6
shall not restrict any Person (i) from acting either as required by applicable
law or in connection with furthering the business of the Company or (ii) with
respect to information or data that (a) was already in the possession of such
Person prior to the initial receipt thereof, directly or indirectly, from the
Company, (b) is independently developed by such Person without reference of any
kind to Confidential Information or (c) is furnished lawfully to such Person by
a third party (other than the Company or an Affiliate of such Person or the
Company) not known to such Person to be subject to restrictions on disclosure
or use of such information or data.
SECTION 7. MISCELLANEOUS
7.1 Notices. All notices, demands, requests, certificates or
other communications under this Agreement shall be in writing and shall be
telegraphed, mailed by certified or registered mail (return receipt requested)
with charges prepaid, hand delivered or sent by facsimile transmission, by
tested or otherwise authenticated telex or cable or by commercial courier to
the address set forth below for each of the Parties (or at such other address
as shall be specified by a Party by like notice to all of the other Parties):
(i) if to the Company:
Tricom Network
Xxxxx Xxxxxx Xx. 000
Xxx. Xxxxx Xx Xxxxxxxxxxx
X.X. 00000
Xxxxxx, D.F.
Attention: Xxxxxxx Xxxxx Lizaur
Telecopier: 000-000-000-0000
(ii) if to Nextel or Nextel Investment:
Nextel Communications, Inc.
0000 Xxxx Xxxxxx Xxxxx
XxXxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
26
30
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
(iii) if to Grupo:
Grupo Comunicaciones San Xxxx, S.A. de C.V.
Xxxxx Xxxxxx no. 132
Primer Piso, Col. Chapultepec Xxxxxxx
X.X. 11000, Mexico, D.F.
Attention: Xxxxxx Xxxxxxxxxx Xxxxxx
Telecopier: 000-000-000-0000
(iv) if to ACC:
Associated SMR, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx and
Xxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
with a copy to:
The Associated Group, Inc.
0 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
(v) if to WVM:
Wireless Ventures of Mexico, Inc.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx and Xxx Xxxxxxx
Telecopier: (000) 000-0000
(vi) if to Carlyle:
Carlyle-Tricom Investors L.L.C.
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
220 South
Washington, D.C. 20004
Attention: Xxxx Xxx
Telecopier: (000) 000-0000
Notices shall be deemed delivered when received; provided that any notice
delivered after business hours or on a Saturday, Sunday or legal holiday at the
place of such delivery shall be deemed for purposes of computing any time
period hereunder to have been delivered on the next business day in such place
of delivery.
27
31
7.2 Expenses. Except as is otherwise expressly provided in this
Agreement (including the Annexes), each Principal Shareholder shall bear its
own expenses, including the fees and expenses of any attorneys, accountants,
investment bankers, brokers, finders or other intermediaries or other Persons
engaged by it, incurred in connection with this Agreement or the other
agreements contemplated hereby.
7.3 Benefits; Assignment. (a) The provisions of this Agreement
shall be binding upon, and inure to the benefit of the Parties. Nothing in
this Agreement, express or implied, is intended to confer upon any Person
(other than the Parties) any rights, remedies or obligations under or by reason
of this Agreement.
(b) None of the Principal Shareholders or the Company shall assign
or delegate any of its rights or obligations hereunder or any interest herein
without obtaining the written consent of each of the Principal Shareholders and
the Company and any purported assignment or delegation made without obtaining
such written consent shall be null and void; provided, that the foregoing shall
not be deemed to prevent assignments to other members of a Principal
Shareholder's Principal Shareholder Group and assignments pursuant to Section
A.15 of Annex A hereto, each of which are expressly permitted hereunder.
Notwithstanding the foregoing Nextel may assign and transfer its rights and
obligations hereunder, without the consent of the other Parties, in connection
with a merger with or into, or other combination or consolidation with another
Person, or transfer of substantially all of its assets to another Person (such
other Person being herein referred to as the "New Person"), provided that the
New Person becomes liable for the performance of all obligations of Nextel
prior to or at the time of such merger, combination, consolidation or transfer
of assets; each reference to Nextel herein shall, if the context requires, be
deemed to refer to the New Person.
7.4 Entire Agreement; Amendment and Waiver. This Agreement (which
includes the Annexes hereto), the Amendment, dated as of the date hereof, among
each of the Parties hereto and Banco del Atlantico, S.A. and the Control Trust
Agreement constitute the entire agreement among the Parties with respect to the
subject matter hereof and thereof and supersede all prior agreements and
understandings, both written and oral, among the Parties with respect to the
subject matter hereof and thereof. This Agreement may not be amended,
supplemented or otherwise modified except by an instrument in writing signed by
each of the Parties. No waiver by any Party of any of the provisions hereof
shall be effective unless explicitly set forth in writing and executed by such
Person. Any waiver of a breach of this Agreement by any Party shall not
operate or be construed as a waiver by such Party of any subsequent breach.
28
32
7.5 Headings. The headings in this Agreement are for convenience
only and shall not affect the construction hereof.
7.6 Governing Law. THE VALIDITY, CONSTRUCTION, ENFORCEABILITY AND
INTERPRETATION OF THIS AGREEMENT (OTHER THAN THE PROVISIONS OF ANNEX A) SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF MEXICO, WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF MEXICO OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION
OF THE LAWS OF ANY JURISDICTION OTHER THAN THE LAWS OF MEXICO. THE VALIDITY,
CONSTRUCTION, ENFORCEABILITY AND INTERPRETATION OF THE PROVISIONS OF ANNEX A
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF NEW YORK OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE LAWS OF NEW YORK.
7.7 Arbitration. (a) Except for obtaining a temporary
restraining order or preliminary injunction to prevent immediate irreparable
harm, any controversy, conflict or dispute of any nature that arises in
relation to this Agreement shall be settled exclusively and finally by
arbitration, which will be carried out in conformity with the Rules of
Conciliation and Arbitration of the International Chamber of Commerce (the
"ICC") in effect on the date of this Agreement (the "ICC Rules"). The
arbitration will be carried out by three arbitrators. In the event that there
are two sides to any such arbitration, one arbitrator shall be appointed by
each side in accordance with Article 4.4 of the ICC Rules as if each side were
a "party" (as such term is used in Article 4.4 of the ICC Rules) and the third
arbitrator shall be selected by the two party-appointed arbitrators or, failing
agreement within 45 days after the notice of intention to arbitrate is filed
with the ICC (or such other period as may be agreed by the two sides to such
arbitration), by the ICC in accordance with the ICC Rules; provided that any
such third arbitrator selected by the ICC shall not be a national of either the
United States or Mexico. If there are more than two sides to any such
arbitration, then the parties to such arbitration shall appoint the three
arbitrators directly by delivering a written notice of appointment, signed by
all parties to the arbitration, to the ICC within 45 days after the notice of
intention to arbitrate is filed with the ICC (or such other period as may be
agreed by all the parties to such arbitration). In the event the parties to
the arbitration shall fail so to appoint three mutually acceptable arbitrators,
the arbitrators (or those that have not been appointed) shall be appointed by
the ICC. Unless all of the parties to such arbitration otherwise agree, all
arbitrators appointed in any such arbitration shall be bilingual in English and
Spanish; provided that in the event that the ICC appoints all three
arbitrators, unless all the parties to such arbitration otherwise agree, one
such arbitrator shall be a national of Mexico, one such arbitrator shall be a
national of
29
33
the United States and the chairman of such arbitration panel shall be a
national of a country other than the United States or Mexico.
(b) The arbitration will be carried out in Mexico D.F., Mexico, in
the English language in conformity with the substantive law set forth in
Section 7.6 and the procedural rules set forth in this Section 7.7 and in
Section 7.8 hereof; provided, however, that any party to the arbitration
proceeding with reasonable prior notice to the other parties to such
arbitration may submit testimony or documentary evidence in Spanish, and shall,
upon request of any other party to the arbitration proceeding, furnish a
translation into English of any such testimony or documentary evidence. Any
translation of documentary evidence shall be provided a reasonable period of
time before its submission in the proceeding.
(c) In order to facilitate the comprehensive resolution of related
disputes between or among any of the parties hereto, and upon request by any
party to the arbitration proceeding, the arbitration panel may at any time
before the first oral hearing of evidence, consolidate the arbitration
proceeding with any other arbitration proceedings between or among all or any
of the parties to this Agreement arising under the Control Trust Agreement.
(d) At any oral hearing of evidence, each party to the arbitration
proceeding or its legal counsel shall have the right to examine its witnesses
and to cross-examine the witnesses of an opposing party. No evidence of any
witness shall be presented in written form unless the opposing party or parties
shall have the opportunity to cross-examine such witness, except as the parties
to the arbitration proceeding otherwise agree in writing or except under
extraordinary circumstances where the interests of justice require a different
procedure.
(e) Any decision or award of the arbitrators shall be final and
binding upon the parties to such arbitration, and judgment upon any such
arbitral award may be entered in any court of competent jurisdiction. The
Parties hereby waive, to the fullest extent permitted by applicable law, any
rights to appeal or to review of such decision or award by any court or
tribunal.
(f) To the extent that any Party has or hereafter may acquire any
immunity (sovereign or otherwise) from jurisdiction of any court or from any
legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, each such Party hereby, to the fullest extent permitted by
applicable law, irrevocably waives such immunity in respect of its obligations
under this Agreement, in connection with any application for judicial
acceptance and an order of enforcement of any such decision or award.
30
34
7.8 Remedies. It is agreed that irreparable damage could occur in
the event that any of the provisions of this Agreement were not performed in
accordance with its specific terms or were otherwise breached and that in
addition to a party's right to seek a temporary restraining order or
preliminary injunction to prevent immediate irreparable harm, an arbitration
panel convened under Section 7.7 shall have the power to grant an injunction or
injunctions to prevent breaches of this Agreement, to the extent that such an
injunction may be granted by a court of competent jurisdiction of the United
States, and the parties shall be entitled to enforce specifically the terms and
provisions of an award of such arbitration panel providing for such an
injunction or injunctions in any such court having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
All rights, powers and remedies provided under this Agreement or otherwise
available in respect hereof or at law or in equity shall be cumulative and not
alternative, and the exercise of any thereof by any Party shall not preclude
the simultaneous or later exercise of any other such right, power or remedy by
such Party.
7.9 Severability. In the event that any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby as long as the remaining provisions do not fundamentally
alter the relations among the Parties.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered, shall constitute an
original and all together shall constitute one instrument.
7.11 English Version Governs. This Agreement, following its
execution and delivery, may be translated into Spanish for the convenience of
the Parties; provided that in the event of any issue of interpretation, the
English version shall always govern and prevail.
7.12 Further Assurances. Each Principal Shareholder agrees to
exercise its Beneficiary Rights, if any, and to take such other actions
(including, without limitation, under the Control Trust Agreement) as are
reasonably necessary to implement the provisions of this Agreement.
7.13 Relationship to Estatutos. In the event of any conflict or
inconsistency between the provisions of the Estatutos and the provisions of
this Agreement, then as among the parties hereto, the provisions of this
Agreement shall govern.
7.14 Nextel to Act as Agent and Primary Obligor.
(a) Whenever it is provided in this Agreement or the Control Trust
Agreement that any communication is to be made to
31
35
Nextel, Nextel Investment or any Qualified Affiliate of Nextel Investment, it
shall be sufficient if such communication is made only to Nextel, which shall
act as agent (the "Agent") for Nextel Investment and all Qualified Affiliates
thereof, and, notwithstanding anything to the contrary contained in this
Agreement or the Control Trust Agreement, no such communication need be
delivered to Nextel Investment or any Qualified Affiliate thereof. Any
instrument signed by the Agent, on behalf of Nextel, Nextel Investment or any
Qualified Affiliate of Nextel Investment, shall be binding on Nextel, Nextel
Investment and such Qualified Affiliate, respectively, and neither any party
hereto nor any other Person shall be required to inquire into the authority of
the Agent in so acting.
(b) Nextel shall be and remain obligated under this Agreement and
the Control Trust Agreement as a primary obligor (and not merely as a surety)
in respect of the obligations of Nextel Investment. Nextel hereby agrees that
for so long as Nextel Investment or any Qualified Affiliate thereof
Beneficially Owns Shares, Nextel shall own all of the shares of Nextel
Investment.
7.15 Termination of Joint Venture Agreement. Each of the Company,
Grupo, WVM, and ACC hereby consents to (i) the termination of the Agreement of
Association and Joint Venture in Corporation Mobilcom (the "Joint Venture
Agreement") of April 20, 1993 among Comunicaciones Troncales, S.A. de C.V.,
WVM, ACC, International Wireless Communications ("IWC") and Far East
Agrobusiness Consultants, Limited ("FEAC") as of March 3, 1995 which was the
date upon which each of the other parties thereto consented to termination of
the Joint Venture Agreement and (ii) to the substitution of this Agreement in
its entirety for the Joint Venture Agreement with respect to its relations with
each of the other Parties that is a party to the Joint Venture Agreement.
7.16 Representations and Warranties. Each party hereto makes the
representations and warranties set forth in Annex E to the other parties hereto
as of the date it becomes a party to this Agreement and, in the case of the
parties hereto on the Closing Date, as of the Closing Date.
7.17 Subordinated Amount. Each of the parties hereto agrees that,
notwithstanding the terms of indebtedness in respect of the Subordinated Amount
(as defined in the Nextel Purchase Agreement), payments shall be made by the
Company in respect of such indebtedness only to the extent that they are
permitted by Section 4.2(b) of the Nextel Purchase Agreement; it being
understood and agreed that the Company shall, upon receipt of the entire $11.4
million capital increase approved by the Company's shareholders meeting
resolution dated June 7, 1996, use the second installment of payments to the
Company from the shareholders participating in the capital increase approved at
such shareholders meeting to repay in its entirety such
32
36
indebtedness, and such repayment shall be considered to be permitted by Section
4.2(b) of the Nextel Purchase Agreement.
7.18 Company Covenant Regarding Certain Actions. The Company
covenants and agrees with the other parties hereto that so long as the Control
Trust Agreement is in effect, it will not take any of the actions referred to
in Section 6.3(d) of the Control Trust Agreement unless such action has been
previously approved by a vote of the Company's shareholders at a duly convened
meeting or unless both (a) Nextel and Grupo, to the extent their consent is
required pursuant to Section 6.3(d) of the Control Trust Agreement, have
expressly consented in writing to the taking of such actions without a
shareholders meeting and (b) each Principal Shareholder Group has received
prior notice of such action. The Company shall be entitled to assume that the
Control Trust Agreement is in effect unless otherwise notified in writing by
the Control Trustee or a Qualified IPO has occurred.
7.19 [Intentionally Deleted.]
7.20 Termination of Rights. From and after the Transfer by any
Principal Shareholder Group of all of its interests in Voting Securities
(including, without limitation, all Liens on and rights to acquire Voting
Securities), the rights and obligations of such Principal Shareholder Group
hereunder shall terminate, provided, however, that this provision shall not be
deemed to affect any rights of any party hereto arising from any breach of this
Agreement by any party occurring prior to such Transfer.
7.21 Inconsistency with Put-Call Agreement.
(a) In the event of any inconsistency or conflict between the
provisions of the Put-Call Agreement and the provisions of this Agreement or
the Control Trust Agreement which would (a) prevent, impair or delay under the
Put-Call Agreement the Selling Shareholders' (as defined therein) exercise of
the Put Right (as defined therein) and receipt of the Put Price (as defined
therein) (b) prevent, impair, or delay Nextel Investment's exercise of the Call
Right (as defined therein) (and upon such exercise, the Selling Shareholders'
receipt of the Call Price (as defined therein)) or (c) limit Nextel
Investment's ability to purchase Shares under the Put-Call Agreement without
having to purchase Shares of other persons or waive any rights under the
provisions of this Agreement or the Control Trust Agreement, such provisions in
this Agreement or the Control Trust Agreement shall be deemed to be superseded
by the Put-Call Agreement to the extent necessary to eliminate such
inconsistency or conflict.
(b) Section 7.21(a) hereof shall not apply to any modification or
amendment of the Put-Call Agreement as attached hereto as Annex J, other than
the addition of any Shareholder as a party to the Put-Call Agreement, except to
the extent that
33
37
Grupo has consented in writing to such modification or amendment (which consent
shall not be unreasonably withheld).
34
38
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
NEXTEL COMMUNICATIONS, INC.
By: /s/ Xxxxx X. XxXxxxx
--------------------------------------
Name: Xxxxx X XxXxxxx
Title: Vice Chairman
NEXTEL INVESTMENT COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
GRUPO COMUNICACIONES SAN XXXX,
S.A. DE C.V.
By: /s/ Xxxxxx Xxxxxxxx Xxxxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxx Xxxxxxxxxx Xxxxxx
Title: President
ASSOCIATED SMR, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
WIRELESS VENTURES OF MEXICO, INC.
By: /s/ Xxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxx
Title: President
CARLYLE-TRICOM INVESTORS L.L.C.
By: /s/ Xxxxxxx Ein
-------------------------------------
Name: Xxxxxxx Ein
Title: Vice President
39
CORPORACION MOBILCOM, S.A. DE C.V.
By: /s/ Xxxxxx Xxxxxxxx Xxxxxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx Xxxxxxxxxx Xxxxxx
Title: President
