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EXHIBIT 10.32
AGREEMENT TO ACCELERATE
PUT RIGHTS
This AGREEMENT TO ACCELERATE PUT RIGHTS (this "Agreement"), dated as of
June 26, 1998 (the "Effective Date"), is made and entered into among Gotesco
Properties Inc., a Philippine corporation ("Gotesco"), Xxxx X. Go, a Philippine
citizen, and Xxxx X. Go, a Philippine Citizen (Gotesco, Xxxx X. Go and Xxxx X.
Go are each individually, a "Go Holder" and collectively, the "Go Holders"),
Nextel International, Inc., a Washington corporation ("Nextel"), and Top Mega
Enterprises Ltd., a Hong Kong corporation and indirect wholly owned subsidiary
of Nextel.
RECITALS
A. Nextel, the Go Holders, Top Mega Enterprises Ltd. and Infocom
Communications Network, Inc. ("Infocom") are parties to that certain
Restructuring Agreement, dated as of April 2, 1998 (the "Restructuring
Agreement"), pursuant to which: (i) the parties agreed to make certain changes
to the corporate governance of Infocom, and (ii) the Go Holders and Nextel
granted to each other certain rights with respect to puts and calls of shares
held by the Go Holders in Infocom. Capitalized terms used herein and not
otherwise defined herein are used with the same meanings as in the Restructuring
Agreement.
B. The Go Holders are each executing an irrevocable proxy
(collectively, the "Proxies"), of even date herewith, at the request of Nextel
to facilitate the performance by the Go Holders of certain covenants of theirs
with respect to corporate governance contained in the Restructuring Agreement.
C. Nextel and the Go Holders now desire to accelerate the Go Holders'
put rights on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. GO PUT RIGHT.
1.1 Exercise of Put Right. Notwithstanding any provision of the
Restructuring Agreement, the Go Holders hereby exercise the Go Put Right
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and Nextel, or its designee, agrees to purchase the shares of Infocom common
stock more fully described in Section 2.1 (the "Shares") as though the Put
Period had occurred as of the date hereof and was continuing in accordance with
the terms and conditions of the Restructuring Agreement, unless otherwise
specified herein. Nextel and the Go Holders will close the purchase of such
Shares no later than August 21, 1998.
1.2 Purchase Price; Payment.
(a) The aggregate purchase price paid to the Go Holders
for the Shares upon exercise of the Go Put Right in accordance herewith shall
equal U.S.$9,000,000 (the "Purchase Price"), subject to adjustment for stock
dividends, reclassifications, recapitalizations, stock splits, combinations,
exchanges of shares or similar transactions after the date hereof which alter
the Go Holders' aggregate percentage ownership in Infocom.
(b) The Purchase Price shall be paid as follows:
(i) U.S.$500,000 upon execution and delivery
of this Agreement and the Proxies (the "Initial Installment");
(ii) U.S.$500,000 upon conclusion of the annual
Infocom Shareholders Meeting in July 1998 provided that at such meeting
the Shares owned by the Go Holders will have been voted pursuant to the
Proxies and to effectuate the corporate governance structure described
in the Restructuring Agreement; and
(iii) U.S.$8,000,000 upon the transfer (the
"Transfer") of all the Shares owned by the Go Holders to a qualified
third-party purchaser in accordance with Philippines law (the "Final
Installment").
1.3 Pledge of Shares; Delivery.
(a) To secure the obligations of any and all of the Go Holders
to Nextel hereunder and under the Restructuring Agreement and the Proxies, the
Go Holders hereby pledge, assign, hypothecate, deliver and set over to Nextel,
or its designee, all of their right, title and interest in the Shares, together
with any proceeds of the Shares, and hereby grant to Nextel, or its designee, a
first priority security interest in the Shares and the proceeds thereof,
effective against all third parties.
(b) Upon execution of this Agreement and payment of the
Initial Installment, each of the Go Holders shall deliver to Nextel, acting on
its own behalf or on behalf of its designee, the certificates representing their
respective Shares (the "Certificates"), together with a stock power (or
assignment separate from certificate) endorsed in blank for such Certificates
with appropriate signature guarantees. Upon payment of the Final Installment, or
pursuant to Section 4, below, legal ownership of the Shares shall transfer to
Nextel or its designee without any further action or consent by any Go Holder.
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2. REPRESENTATIONS AND WARRANTIES OF GO HOLDER. Each Go Holder jointly and
severally represents and warrants to Nextel and any designee of Nextel that as
of the date hereof and the date of Transfer:
2.1 Share Ownership. The Shares are held as follows: Gotesco owns
beneficially and of record 678,991 Shares; Xxxx X. Go owns beneficially and of
record 2 Shares; and Xxxx X. Go owns beneficially and of record 2 Shares. Each
of the Go Holders has good and valid title, beneficially and of record, to such
Go Holder's Shares in the amount set forth herein, free and clear of all claims,
liens, suits, proceedings, calls, proxies, charges, options, security interests
and encumbrances of any kind, except as set forth in the Restructuring
Agreement; and such Go Holder now has, and on the date of Transfer will have,
full power and authority to transfer such Shares to Nextel or its designee.
There are no outstanding proxies or other restrictions on voting rights with
respect to any of the Shares. The Shares represent 20 percent of the issued and
outstanding common stock of Infocom on a fully diluted basis, less 5 shares of
Infocom common stock transferred by Gotesco to other qualified Philippines
buyers.
2.2 Power; Authority. Each Go Holder has the requisite power to enter
into this Agreement and to carry out his, her or its obligations hereunder. If a
Go Holder is a corporation or other entity, the execution and delivery of this
Agreement by such Go Holder and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate or
other action on the part of such Go Holder.
2.3 Enforceability. This Agreement is a legal and valid agreement and
obligation binding upon each of the Go Holders, enforceable against each Go
Holder in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general application which may affect the enforcement of creditors' rights
generally and by general equitable principles.
2.4 No Conflict. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby and compliance
with the terms hereof will not, conflict with, or result in any violation of or
default (with or without notice or lapse of time or both) under, any provision
of (A) in the case of a Go Holder which is a corporation or other entity, its
charter, bylaws or other organizational documents or (B) in the case of any of
the Go Holders, any agreement, instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to such Go Holder or to his, her or its property or assets.
2.5 No Consent. No consent, approval, order or authorization of, or
registration, declaration or filing with, any government, governmental
department, commission, board, bureau, agency, regulatory authority,
instrumentality, or judicial or administrative body (a "Governmental
Authority"), is required by or with respect to any Go Holder in connection with
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the execution and delivery of this Agreement or the consummation by the Go
Holders of the transactions contemplated hereby.
3. CONFIDENTIALITY. The Go Holders shall keep confidential, and shall not
directly or indirectly make known, divulge, reveal, furnish, make available or
otherwise disclose, in whole or in part, this Agreement or the Proxies, or any
matter related hereto or thereto, or the transactions contemplated hereby or
thereby (collectively, the "Confidential Information") without the prior written
consent of Nextel. The confidentiality restrictions set forth herein are not
applicable to Confidential Information which is required to be disclosed by the
order of any Governmental Authority of competent jurisdiction or under any legal
or regulatory requirement, provided that the Go Holders, when being required to
disclose such Confidential Information under such order or legal requirement,
shall first give written notice of such obligation to Nextel and shall cooperate
with Nextel in contesting such order or requirement or in seeking confidential
treatment of the matters disclosed.
4. CONSEQUENCES OF DEFAULT/BREACH. Each Go Holder acknowledges and agrees
that in the event that any or all of the Go Holders default under, or breach,
any provision of this Agreement or the Restructuring Agreement or attempt to
revoke any or all of the Proxies (each of the foregoing, a "Default"), the
transfer of all the Shares to Nextel or its designee will immediately be
consummated and no further consideration will be owed by Nextel to any Go Holder
hereunder or under the Restructuring Agreement. Upon a Default, the Go Holders
shall comply with any reasonable request of Nextel to consummate the transfer of
Shares to Nextel or its designee.
5. MISCELLANEOUS.
5.1 Notices. All notices, requests, demands or other communications
required by or otherwise with respect to this Agreement shall be in writing and
shall be deemed to have been duly given to any party when delivered personally
(by courier service or otherwise), when delivered by facsimile and confirmed by
return facsimile, or seven days after being mailed by first-class mail, postage
prepaid and return receipt requested, in each case to the applicable addresses
set forth below:
If to Nextel:
Nextel International, Inc.
0000 Xxxxxx Xxx.
Xxxxx 0000
Xxxxxxx, XX 00000
U.S.A.
Attention: General Counsel
Facsimile: (000) 000-0000
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If to Gotesco, Xxxx X. Go or Xxxx X. Go:
Gotesco Properties Inc.
Ever Gotesco Corporate Center
1958 X.X. Xxxxx Avenue
Manila, Philippines
Attention: Xxxx X. Go
Facsimile: (00-0) 000-0000
or to such other address as such party shall have designated by notice so given
to each other party.
5.2 Transfer; Assignment. Neither this Agreement nor any of the
rights, interests or obligations in this Agreement shall be assigned by any Go
Holder without the prior written consent of Nextel. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns. The Go Holders expressly
agree that Nextel may assign its rights and obligations hereunder to a third
party who shall be the transferee of the Shares.
5.3 Amendment. This Agreement cannot be amended or modified except by
a written instrument executed by the parties to this Agreement who propose to be
bound by the amendment or modification.
5.4 Headings. The headings in this Agreement are inserted for
convenience of reference only and are not intended to be a part of or affect the
meaning or interpretation of this Agreement.
5.5 Entire Agreement. This Agreement and the Restructuring Agreement
supersede any and all oral or other written agreements and understandings
heretofore made relating to the subject matter hereof and collectively contain
the entire agreement of the parties hereto relating to the subject matter hereof
and thereof.
5.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the Republic of the Philippines without
regard to conflicts-of-laws principles.
5.7 Remedies. Each party hereto acknowledges that the other parties to
this Agreement may not have an adequate remedy at law for money damages in the
event that this Agreement is not performed by such party in accordance with its
terms and, therefore, agrees that each party shall be entitled to specific
performance of, and injunctive relief to prevent any violation of, the terms
hereof, in addition to any other remedy or relief available at law or in equity,
and further agrees not to take action, directly or indirectly, in opposition to
any other party's seeking such specific enforcement or injunctive relief.
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5.8 Severability. If any term of this Agreement or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such term to
the other parties or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law; provided, however,
that in such event the parties shall negotiate in good faith in an attempt to
agree to another provision (in lieu of the term or application held to be
invalid or unenforceable) that will be valid and enforceable and will carry out
the parties' intentions hereunder.
5.9 No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
5.10 No Third Party Beneficiaries. This Agreement is not intended
to be for the benefit of and shall not be enforceable by any person who or which
is not a party hereto.
5.11 Restructuring Agreement. Except as expressly set forth herein, the
parties agree that the provisions of the Restructuring Agreement remain in full
force and effect.
5.12 Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed an original but all of which together
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NEXTEL INTERNATIONAL, INC.
By: /s/ XXXXX X. XXXXXXX
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Address: 0000 Xxxxxx Xxx.
Xxxxx 0000
Xxxxxxx, XX 00000
U.S.A.
Facsimile: (000) 000-0000
TOP MEGA ENTERPRISES LTD.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Director
Address: c/o Nextel International, Inc.
0000 Xxxxxx Xxx.
Xxxxx 0000
Xxxxxxx, XX 00000
U.S.A.
Facsimile: (000) 000-0000
GOTESCO PROPERTIES INC.
By: /s/ XXXX X. GO
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Name: Xxxx X. Go
Title: President
Address: Ever Gotesco Corporate Center
0000 X.X. Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxx
Facsimile: (00-0) 000-0000
[SIGNATURES CONTINUED ON NEXT PAGE]
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/s/ XXXX X. GO
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XXXX X. GO
Address: Gotesco Properties Inc.
Ever Gotesco Corporate Center
0000 X.X. Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxx
Facsimile: (00-0) 000-0000
/s/ XXXX X. GO
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XXXX X. GO
Address: Gotesco Properties Inc.
Ever Gotesco Corporate Center
0000 X.X. Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxx
Facsimile: (00-0) 000-0000
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