EXHIBIT 10.4
SUBSCRIPTION AGREEMENT
dated as of September 19, 1996
by and between
NEWBRIDGE LATIN AMERICA, L.P.
and
MTEL PUERTO RICO, INC.
TABLE OF CONTENTS
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Page
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1. Purchase of the Preferred Stock...................................... 1
1.1 Agreement to Purchase and Sell.................................. 1
1.2 Closing......................................................... 2
1.3 Delivery and Payment............................................ 2
2. Representations and Warranties of Mtel LATAM
and Mtel Puerto Rico................................................. 2
2.1 Incorporation and Organization.................................. 3
2.2 Subsidiaries.................................................... 3
2.3 Capitalization.................................................. 3
2.4 Authorization; Valid and Binding
Agreements...................................................... 4
2.5 Financial Statements............................................ 5
2.6 Undisclosed Liabilities......................................... 5
2.7 No Conflicts, Violation, Etc.................................... 6
2.8 Consents........................................................ 6
2.9 Exemption from Securities Act................................... 7
2.10 Litigation...................................................... 7
2.11 No Material Adverse Change...................................... 7
2.12 Compliance with Laws............................................ 7
2.13 Certificates, Authorizations, Permits
and Licenses.................................................... 8
2.14 Affiliate Transactions.......................................... 8
2.15 Brokers......................................................... 8
3. Representations and Warranties of the Purchaser...................... 8
3.1 Organization.................................................... 9
3.2 Authority....................................................... 9
3.3 Consents........................................................ 9
3.4 No Conflicts, Violation, Etc.................................... 9
3.5 Purchase for Investment......................................... 10
4. Counterparts......................................................... 12
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5. Successors and Assigns............................. 12
6. Collateral Agreements, Amendments and Waivers...... 12
7. Expenses........................................... 13
8. Invalid Provisions................................. 13
9. Notices............................................ 13
10. No Third-Party Beneficiaries....................... 14
11. Law Governing...................................... 14
12. Further Assurances................................. 15
13. Headings........................................... 15
14. No Recourse Against Others......................... 15
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SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of September
19, 1996, by and between MTEL PUERTO RICO, INC., a Delaware corporation ("Mtel
Puerto Rico") and Newbridge Latin America, L.P., a Cayman Islands limited
partnership (the "Purchaser").
WHEREAS, Mtel Puerto Rico desires to issue and sell to the Purchaser,
and the Purchaser desires to purchase from Mtel Puerto Rico, 3,500 shares (the
"Preferred Shares") of 12% Cumulative Redeemable Preferred Stock, par value
$0.01 per share, of Mtel Puerto Rico (the "Preferred Stock"); and
WHEREAS, concurrently with the execution and the consummation of the
transactions contemplated by this Agreement, the Purchaser, Mtel Puerto Rico and
Mtel Latin America, Inc., a Delaware corporation ("Mtel LATAM"), are entering
into a Stockholders and Exchange Rights Agreement, dated as of the date hereof
and attached hereto as Exhibit A (the "Stockholders Agreement" and, collectively
with this Agreement and the other agreements and documents concerning the
transactions contemplated hereby and thereby, the "Transaction Documents")
pursuant to which (i) the Purchaser shall have the right under certain
circumstances to cause Mtel LATAM to exchange (a "Purchaser Exchange") the
Preferred Shares for shares of Cumulative Redeemable Convertible Variable Rate
Preferred Stock, par value $.01 per share, of Mtel LATAM (the "Mtel LATAM
Preferred Stock"), (ii) Mtel LATAM shall have the right, commencing after
November 30, 1997, to require the Purchaser to exchange (a "Mandatory Exchange")
the Preferred Shares for shares of Mtel LATAM Preferred Stock and (iii) certain
arrangements regarding the governance of Mtel Puerto Rico and the relationship
between the stockholders of Mtel Puerto Rico are specified;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
1. Purchase of the Preferred Stock.
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1.1. Agreement to Purchase and Sell. Upon the basis of the
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representations and warranties, for the consideration, and subject to
the terms and conditions set forth in this Agreement, at the Closing referred to
in Section 1.2 hereof and taking place simultaneously herewith, Mtel Puerto Rico
agrees to issue and sell to the Purchaser, and the Purchaser agrees to purchase
from Mtel Puerto Rico, the Preferred Shares, the terms of which are set forth in
the Amended and Restated Certificate of Incorporation of Mtel Puerto Rico,
attached hereto as Exhibit B, free and clear of all claims, liens, charges and
encumbrances of any nature whatsoever (collectively, "Liens"). In consideration
of the issuance and sale of the Preferred Shares by Mtel Puerto Rico to the
Purchaser, the Purchaser agrees to pay in the aggregate to Mtel Puerto Rico
$3,500,000 (the "Purchase Price"), payable at the Closing.
1.2. Closing. The closing of the transactions contemplated hereby
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(the "Closing") is taking place at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 9:00 a.m., Eastern
Daylight Time, on September 19, 1996, simultaneously with the execution of this
Agreement and the Stockholders Agreement. The date on which the Closing occurs
is hereinafter referred to as the "Closing Date."
1.3. Delivery and Payment. At the Closing, (a) Mtel Puerto Rico is
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delivering or causing to be delivered (if not previously delivered) to the
Purchaser (i) one or more stock certificates evidencing the Preferred Shares
issued in the name of the Purchaser, (ii) an executed copy of the Stockholders
Agreement and (iii) all other documents, instruments and writings required by it
to be delivered by Mtel Puerto Rico to the Purchaser pursuant to this Agreement
and the other Transaction Documents to which it is a party or otherwise required
in connection herewith and therewith by it, and (b) the Purchaser is delivering
or is causing to be delivered to Mtel Puerto Rico (if not previously delivered)
(i) $3,500,000 by wire transfer of immediately available funds to the account of
Mtel Puerto Rico to be designated by Mtel Puerto Rico in writing prior to the
Closing, (ii) an executed copy of the Stockholders Agreement and (iii) all other
documents, instruments and writings required to be delivered by the Purchaser to
Mtel Puerto Rico pursuant to this Agreement and the other Transaction Documents
or otherwise required in connection herewith or therewith.
2. Representations and Warranties of Mtel LATAM and Mtel Puerto
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Rico. Mtel Puerto Rico represents and warrants to the
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Purchaser as of the date hereof (except as otherwise set forth herein) as
follows:
2.1. Incorporation and Organization. Mtel Puerto Rico is a
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corporation duly incorporated and organized, validly existing and in good
standing under the laws of the State of Delaware. Mtel Puerto Rico (i) has all
requisite corporate power and authority to transact its business as now or
heretofore transacted and as proposed to be transacted and (ii) is duly
qualified, licensed, or admitted to do business as a foreign corporation and is
(if applicable) in good standing in each jurisdiction in which the character of
its assets, properties and revenues (collectively, the "Assets") or the nature
of its business requires such qualification, licensing, or admission, except for
such jurisdictions where the failure to be so qualified, licensed, or admitted
or to be in good standing would not have a material adverse effect on the
business, operations or financial condition of Mtel Puerto Rico (a "Material
Adverse Effect").
2.2. Subsidiaries. Mtel Puerto Rico does not own, directly or
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indirectly, any capital stock, partnership interest, joint venture interest or
any other security issued by any other corporation, partnership, limited
liability company or other organization or entity.
2.3. Capitalization.
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(a) As of the Closing, but prior to the issuance of the
Preferred Shares to the Purchaser, (i) the authorized capital stock of Mtel
Puerto Rico consists of 1,000 shares of Common Stock, par value $.01 per share,
1,000 of which are issued and outstanding and 10,000 shares of Preferred Stock,
none of which are issued and outstanding and (ii) all of such issued and
outstanding shares of Common Stock are owned by Mtel LATAM. All of the capital
stock of Mtel Puerto Rico that is or will be issued and outstanding as of the
Closing is or will beat such time duly authorized, validly issued, fully paid
and non-assessable, and free and clear of any Liens. Except as otherwise
contemplated by this Agreement or the other Transaction Documents, (i) there are
no restrictions on the transfer of shares of capital stock of Mtel Puerto Rico
other than those imposed by relevant state and federal securities laws, (ii)
there are no agreements, understandings, proxies, trusts or other collaborative
arrangements concerning the voting, pledge, purchase and sale, or other transfer
of the capital stock of Mtel Puerto Rico to which
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Mtel Puerto Rico is a party or, to the knowledge of Mtel Puerto Rico, to which
any other person is a party, and (iii) no holder of any security of Mtel Puerto
Rico is entitled to preemptive, first refusal or similar statutory or
contractual rights, arising pursuant to any agreement or instrument to which
Mtel Puerto Rico is a party, or which are otherwise binding upon Mtel Puerto
Rico or, to the knowledge of Mtel Puerto Rico, to which any other person is a
party. To the knowledge of Mtel Puerto Rico, Mtel Puerto Rico does not have any
obligation (contingent or otherwise) to purchase, redeem or otherwise acquire
any of its equity securities or any interest therein or to pay any dividend or
make any other distribution in respect thereof, and no person has demand or
other rights to cause Mtel Puerto Rico to file any registration statement under
the Securities Act of 1933, as amended (the "Securities Act"), relating to any
securities of Mtel Puerto Rico, or any right to participate in any such
registration.
(b) Except as set forth on Schedule 2.3 hereof and except for
the Mtel LATAM Preferred Shares, there are no outstanding securities convertible
into or exchangeable or exercisable for any shares of the capital stock of Mtel
Puerto Rico, nor are there outstanding any rights to subscribe for or to
purchase, or any options for the purchase of, or any agreement providing for the
issuance (contingent or otherwise) of, or any calls, commitments or claims of
any character relating to, any shares of the capital stock of Mtel Puerto Rico
or any securities convertible into or exchangeable or exercisable for any shares
of such capital stock.
2.4. Authorization; Valid and Binding Agreements. Mtel Puerto Rico
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has all requisite corporate power and authority to execute and deliver this
Agreement and the other Transaction Documents and to perform all of its
obligations and undertakings hereunder and thereunder and to carry out the
transactions contemplated hereby and thereby. The execution and delivery of
this Agreement and the other Transaction Documents to which it is a party, the
performance by Mtel Puerto Rico of its obligations hereunder and thereunder, and
the issuance and sale of the Preferred Shares have been duly authorized by all
necessary corporate action including Board of Directors approval on the part of
Mtel Puerto Rico. This Agreement and the other Transaction Documents have been
duly and validly executed and delivered by Mtel Puerto Rico. Assuming due
authorization, execution and delivery by the Purchaser,
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this Agreement and the other Transaction Documents to which it is a party
constitute legal, valid and binding obligations of Mtel Puerto Rico, enforceable
against Mtel Puerto Rico in accordance with their terms, except as enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereinafter in effect affecting creditors' rights
generally and (ii) general principals of equity (regardless of whether the
application of such principals is considered in a proceeding in equity or at
law).
2.5. Financial Statements.
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(a) Mtel Puerto Rico has delivered to the Purchaser copies of
the following financial statements: (i) the audited Financial Statements (as
defined below) of Mtel Puerto Rico as of and for the fiscal year ended December
31, 1995, together with reports thereon of Mtel Puerto Rico's independent public
accountants and (ii) the unaudited trial account balances of Mtel Puerto Rico as
of and for the six month period ended June 30, 1996. "Financial Statements"
shall mean the balance sheet as of the date indicated and the related statements
of operations, cash flows and changes in shareholders' equity (including all
related notes and schedules thereto) for the period indicated. The Financial
Statements referred to in clauses (i) and (ii) are collectively referred to
herein as the "Mtel Puerto Rico Statements."
(b) All of the audited Mtel Puerto Rico Statements have been
prepared in accordance with United States generally accepted accounting
principles ("GAAP") , except as set forth in the notes thereto and all of the
Mtel Puerto Rico Statements accurately set forth and fairly present in all
material respects the financial position and results of operations of Mtel
Puerto Rico as of the respective date thereof and for the respective period
covered thereby.
2.6. Undisclosed Liabilities. As of the date hereof, except for
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liabilities (i) reflected on or reserved against on the balance sheet as of
December 31, 1995 or June 30, 1996 of Mtel Puerto Rico or disclosed in any note
thereto provided to the Purchaser, (ii) incurred in the ordinary course of Mtel
Puerto Rico's business, (iii) set forth on Schedule 2.6 hereof, or (iv)
contemplated by this Agreement, Mtel Puerto Rico has no liabilities (absolute,
accrued, contingent or otherwise)
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which would be required by GAAP to be reflected on or reserved against the
balance sheet of Mtel Puerto Rico.
2.7. No Conflicts, Violation, Etc. The execution and delivery by
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Mtel Puerto Rico of this Agreement and the other Transaction Documents to which
it is a party does not, and the performance by Mtel Puerto Rico of its
obligations under this Agreement and the other Transaction Documents to which it
is a party and the consummation of the transactions contemplated hereby and
thereby, will not: (a) conflict with or result in a violation or breach of any
provision of the certificate of incorporation or by-laws of Mtel Puerto Rico;
(b) conflict with or result in a violation or breach of any law, regulation,
rule, judgment, decree or order of any court or governmental authority to which
Mtel Puerto Rico may be subject; (c) cause or give a right to cause the
acceleration of the maturity of any debt or obligation of Mtel Puerto Rico; or
(d) violate, or be in conflict with, or constitute a default under, or permit
the termination of, or result in the creation of any Lien upon any property of
Mtel Puerto Rico under, any agreement to which Mtel Puerto Rico is a party or by
which Mtel Puerto Rico is bound except, in the case of clauses (b), (c) and (d)
above, for such violations, conflicts or defaults which would not have a
Material Adverse Effect or to those as to which requisite waivers or consents
have been obtained.
2.8. Consents.
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(a) Assuming the accuracy of the representation of the
Purchaser set forth in Section 3.5 hereof, no consents, approvals, actions or
authorizations of, or registrations, declarations or filings with or notices to,
any administrative, governmental or other public authority are required to be
obtained or made by Mtel Puerto Rico in connection with (i) the execution,
delivery or performance of this Agreement and the other Transaction Documents to
which it is a party, (ii) the consummation of the transactions contemplated
hereby and thereby, or (iii) the issuance of the Preferred Shares, except where
the failure to obtain such consent, approval, action or authorization or make
such registration, declaration or filing would not have a Material Adverse
Effect.
(b) Mobile Telecommunication Technologies Corp., a Delaware
corporation ("Mtel"), has taken all actions necessary to
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designate Mtel Puerto Rico as an "Unrestricted Subsidiary" pursuant to the
Indenture, as amended, dated December 29, 1994 between Mtel and Texas Commerce
Bank National Association and the Credit, Security, Guaranty and Pledge
Agreement, dated as of December 21, 1995, as amended, among Skytel Corp., Mtel,
the Subsidiaries of Mtel referred to therein, the lenders referred to therein,
The Chase Manhattan Bank (formerly known as Chemical Bank), as administrative
agent for the lenders, Credit Lyonnais New York Branch, as documentation agent,
and ▇.▇. ▇▇▇▇▇▇ Securities, Inc., as co-syndication agent.
2.9. Exemption from Securities Act. Assuming that the
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representations, warranties and acknowledgments of the Purchaser provided for in
Section 3.5 of this Agreement or otherwise contained herein are true and
correct, the sale of the Preferred Shares pursuant to this Agreement will be
exempt from the registration provisions of the Securities Act, and the
registration provisions of any blue sky or other state securities law or
regulation (hereinafter collectively referred to as "blue sky laws") of any
applicable jurisdiction.
2.10. Litigation. There are no actions, suits, proceedings pending
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or, to the knowledge of Mtel Puerto Rico, threatened, against Mtel Puerto Rico
in any court or before or by any governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which seeks to restrain,
enjoin, prevent the consummation of or otherwise challenge this Agreement, any
Transaction Document or the issuance of the Preferred Shares, or which, if
adversely determined, would have a Material Adverse Effect.
2.11. No Material Adverse Change. Except as set forth in the June
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30, 1996 Mtel Puerto Rico Financial Statement, since December 31, 1995, there
has not been a Material Adverse Effect.
2.12. Compliance with Laws. Mtel Puerto Rico is not in violation of
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any statutes, laws, ordinances, governmental rules or regulations or any
judgment, order or decree (federal, state, local or foreign) to which it is
subject and has not failed to obtain any licenses, permits, franchises or other
governmental authorizations necessary to the ownership or operation of its
properties or the conduct of its business, except for such violations or
failures to obtain as would not have a Material Adverse Effect.
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2.13. Certificates, Authorizations, Permits and Licenses.
--------------------------------------------------
(a) Mtel Puerto Rico possesses such certificates,
authorizations and permits issued by the appropriate federal, state and foreign
regulatory agencies or bodies as are necessary to conduct its business as now
operated, except where the failure to possess the same would not have a Material
Adverse Effect.
(b) All paging and messaging licenses, permits, and similar
regulatory documents which are material to the business or operations of Mtel
Puerto Rico (the "Licenses") are in full force and effect and free and clear of
all Liens which have been imposed by an action of Mtel Puerto Rico and such
validity and effectiveness have not been impaired by the passage of any law,
statute, or regulation by any governmental authority in an applicable
jurisdiction since the granting or assignment of the License. Mtel Puerto Rico
is not, and has not received any notice that it is, in default (or with the
giving of notice or lapse of time or both, would be in default) under, or has
violated, any such License. Mtel Puerto Rico has the right to use, and
following the Closing will have the right to use, the necessary licenses to
operate its paging and messaging services on the 931.9375 MHz frequency.
2.14. Affiliate Transactions. Schedule 2.22 lists (i) all material
----------------------
contracts, arrangements or transactions between, on the one hand, Mtel Puerto
Rico and, on the other hand, Mtel LATAM or any of Mtel LATAM's affiliates
including, without limitation, Mtel and Mtel International and (ii) any
agreements to enter into any such contracts, arrangements or transactions.
2.15. Brokers. Except as previously disclosed in writing to the
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Purchaser, neither Mtel LATAM nor Mtel Puerto Rico has dealt with any broker,
finder, commission agent or other person in connection with the sale of the
Preferred Shares and the transactions contemplated by this Agreement, and
neither of them is under any obligation to pay any broker's fee or commission in
connection with such transactions.
3. Representations and Warranties of the Purchaser. The Purchaser
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represents and warrants to Mtel Puerto Rico as follows:
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3.1. Organization. The Purchaser is a limited partnership duly
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formed, validly existing and in good standing under the laws of the Cayman
Islands. Purchaser has full partnership power and authority to own and operate
its assets and properties and carry on its businesses as presently conducted.
3.2. Authority. The Purchaser has all requisite power and authority
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to execute and deliver this Agreement and the other Transaction Documents to
which it is a party and to perform all of its obligations and undertakings
hereunder and thereunder and to carry out the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement and the other
Transaction Documents to which the Purchaser is a party and the performance by
the Purchaser of its obligations hereunder and thereunder have been duly
authorized by all necessary action on the part of the Purchaser. This Agreement
and the other Transaction Documents to which the Purchaser is a party have been
duly and validly executed by the Purchaser. Assuming due authorization,
execution and delivery by Mtel LATAM and Mtel Puerto Rico, this Agreement and
the other Transaction Documents to which the Purchaser is a party constitute
legal, valid and binding obligations of the Purchaser, enforceable against the
Purchaser in accordance with their terms.
3.3. Consents. No consents, approvals, actions or authorizations of,
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or registrations, declarations or filings with or notices to, any
administrative, governmental or other public authority in the Cayman Islands are
required to be obtained or made by the Purchaser in connection with (i) the
execution, delivery or performance of this Agreement and the other Transaction
Documents or (ii) the consummation of the transactions contemplated hereby and
thereby except for as required by reasons pertaining specifically to Mtel Puerto
Rico or except where the failure to obtain such consent, approval, action or
authorization or make such registration, declaration or filing would not have a
Material Adverse Effect and would not have a material adverse effect on the
consummation of the transactions contemplated hereby.
3.4. No Conflicts, Violation, Etc. The execution and delivery by
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Purchaser of this Agreement and the other Transaction Documents to which it is a
party does not, and the performance by Purchaser of its obligations under this
Agreement and the other
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Transaction Documents and the consummation of the transactions contemplated
hereby and thereby will not (a) conflict with or result in a violation or breach
of any provision of the limited partnership agreement or other organizational
documents of Purchaser; (b) conflict with or result in a violation or breach of
any law, regulation, rule, judgment, decree or order of any court or
governmental authority to which Purchaser may be subject; or (c) violate, or be
in conflict with, or constitute a default under, or permit the termination of,
or result in the creation of any Lien upon the Preferred Shares under, any
agreement to which Purchaser is a party or by which Purchaser is bound except,
in the case of clauses (b) and (c) above, for such violations, conflicts or
defaults which would not have a Material Adverse Effect or to those as to which
requisite waivers or consents have been obtained and would not have a material
adverse effect on the transactions contemplated hereby.
3.5. Purchase for Investment. The Purchaser represents that (i) it
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is acquiring the Preferred Shares for its own account, for investment purposes
only and not with a view to the resale or distribution thereof or with any
present intention of distributing or selling any of the Preferred Stock, it
being understood that the right to dispose of such Preferred Shares shall be
entirely within the discretion of the Purchaser; (ii) it has authority to make
the representations contained in this Article 3; (iii) it has sufficient
knowledge and experience in financial and business matters so as to be capable
of evaluating the merits and risks of its investment in the Preferred Shares and
is capable of bearing the economic risk of such investment, including a complete
loss of the investment in the Preferred Stock; (iv) it is an "accredited
investor" within the meaning of Rule 501 of Regulation D of the Securities Act
or a similar institutional investor; (v) it is acquiring all the Preferred
Shares to be acquired by it hereunder with no view or intention to offer for
sale any of the Preferred Shares in a manner that would violate federal or state
securities laws; subject, however, to any requirement of law that the
disposition of its property shall at all times be and remain within its control;
(vi) it is aware that the Preferred Shares, and any shares issuable upon the
exchange of the Preferred Shares, have not been and, subject to the terms of the
Stockholders Agreement, will not be registered under the Securities Act and may
not be offered or sold within the United States to, or for the account or
benefit of, U.S. persons, except as provided below; and (vii) it has received
the information it has
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requested in connection with its execution of this Agreement and its purchase of
the Preferred Shares, and has been given the opportunity and right to meet, and
to ask questions and receive answers from, the representatives of Mtel and to
investigate and inquire into all aspects of Mtel Puerto Rico and the terms and
conditions of the purchase of the Preferred Shares.
The Purchaser agrees that the following restrictive legends will be
placed on certificates representing any or all of the Preferred Shares and that
transfer of any or all of the Preferred Shares may be refused by Mtel LATAM's
transfer agent unless such transfer is in accordance with the terms of this
Agreement and the Stockholders Agreement:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND CERTAIN OTHER CONDITIONS, AS SPECIFIED IN
A STOCKHOLDERS AND EXCHANGE RIGHTS AGREEMENT, DATED AS OF SEPTEMBER
19, 1996 (THE "STOCKHOLDERS AGREEMENT"), COPIES OF WHICH ARE ON FILE
WITH THE SECRETARY OF MTEL PUERTO RICO, INC. ("MTEL PUERTO RICO") AND
WHICH WILL BE FURNISHED WITHOUT CHARGE TO A STOCKHOLDER UPON WRITTEN
REQUEST THEREFOR FROM SUCH STOCKHOLDER. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY
ALL OF THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT.
NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE
MADE EXCEPT PURSUANT TO THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT.
IN ADDITION, THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY
STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED IN VIOLATION OF ANY
SUCH LAWS THAT ARE APPLICABLE.
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO OPTIONAL
AND MANDATORY EXCHANGE RIGHTS, PURSUANT TO WHICH THESE SECURITIES WILL
BE EXCHANGED FOR PREFERRED STOCK OF MTEL LATIN AMERICA, INC. IN
ACCORDANCE WITH THE TERMS OF THE STOCKHOLDERS AGREEMENT AND MAY BE
REDEEMED AT THE OPTION OF MTEL PUERTO RICO UNDER CERTAIN
CIRCUMSTANCES."
The Preferred Shares shall not be assigned, transferred, pledged,
hypothecated or otherwise conveyed or encumbered by the Purchaser, except (i) to
Mtel LATAM or Mtel Puerto Rico or (ii) with the written consent of Mtel LATAM
and Mtel Puerto Rico.
4. Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
5. Successors and Assigns. Neither the Purchaser's nor Mtel Puerto
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Rico's rights or obligations under this Agreement may be assigned, except for an
assignment by the Purchaser of its Preferred Shares and its rights and
obligations under this Agreement to an affiliate of the Purchaser that is
controlled by the general partner of the Purchaser; provided, however, that (i)
such affiliate is financially able to meet the obligations of the Purchaser
hereunder and under the Transaction Documents; and (ii) such affiliate's assets
are not "Plan Assets" as such term is defined in Title I of ERISA. Any
assignment in violation of the foregoing shall be null and void. Subject to the
preceding sentences of this Section 5, the provisions of this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties hereto.
6. Collateral Agreements, Amendments and Waivers. This Agreement
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(together with the documents delivered pursuant hereto) supersedes all prior
documents, understandings and agreements, oral or written, relating to this
transaction and, except for any confidentiality agreement currently existing
between the parties, constitutes the entire understanding between the parties
with respect to the subject matter hereof. Any modification or amendment to, or
waiver of, any provision
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of this Agreement may be made only by an instrument in writing executed by all
of the parties to this Agreement.
7. Expenses. Each party shall pay all costs and expenses incurred
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by it in connection with the negotiation, execution and delivery of this
Agreement and the transactions contemplated hereby.
8. Invalid Provisions. If any provision of this Agreement is held
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to be illegal, invalid or unenforceable under present or future laws, then, if
possible, such illegal, invalid or unenforceable provision will be modified to
such extent as is necessary to comply with such present or future laws and such
modification shall not affect any other provision hereof, provided that if such
provision may not be so modified such illegality, invalidity or unenforceability
will not affect any other provision, but this Agreement will be reformed,
construed and enforced as if such invalid, illegal or unenforceable provision
had never been contained herein.
9. Notices. In any case where any notice or other communication is
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required or permitted to be given hereunder (including, without limitation, any
change in the information set forth in this Section 14) such notice or
communication shall be in writing and (a) personally delivered, (b) sent by
registered United States mail, postage prepaid, return receipt requested, (c)
transmitted by telecopy or (d) sent by way of a recognized overnight courier
service, postage prepaid, return receipt requested with instructions to deliver
on the next business day, in each case as follows:
If to Mtel Puerto Rico, to:
Mobile Telecommunication
Technologies Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Security Centre, South Building
Jackson, Mississippi 39201
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
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Mobile Telecommunication
Technologies Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Security Centre, South Building
Jackson, Mississippi 39201
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Purchaser, to:
Newbridge Latin America, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇/▇▇▇▇▇ ▇'▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices or other communications shall be deemed to have been
given or received (i) upon receipt if personally delivered, (ii) on the fifth
day following posting if by registered United States mail, (iii) when sent by
confirmed telecopy or (iv) on the next business day following deposit with an
overnight courier.
10. No Third-Party Beneficiaries. No person or entity not a party to
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this Agreement shall be deemed to be a third-party beneficiary hereunder or
entitled to any rights hereunder.
11. Law Governing. This Agreement shall be governed by, and
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construed and enforced in accordance with, the laws of the State of Delaware,
without regard to the principles of conflicts or choice of laws thereof.
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12. Further Assurances. Each party hereto or person subject hereto
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shall do and perform or cause to be done and performed all such further acts and
things and shall execute and deliver all such other agreements, certificates,
instruments and documents as any other party hereto or person subject hereto may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the other Transaction Documents and the consummation of
the transactions contemplated hereby and thereby.
13. Headings. The headings of the sections and subsections of this
--------
Agreement are inserted for convenience only and shall not be deemed to
constitute a part of this Agreement.
14. No Recourse Against Others. No director, officer, employee or
--------------------------
stockholder, as such, of Mtel Puerto Rico shall have any liability for any
obligations of Mtel Puerto Rico under the Preferred Stock or for any claim based
on, in respect or by reason of, such obligations or their creation. The
Purchaser, by execution of this Agreement, waives and releases all such persons
from all such liabilities.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
MTEL PUERTO RICO, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: Vice Chairman
NEWBRIDGE LATIN AMERICA, L.P.
By: LATAM GP, L.P.
By: LAF Advisors, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
