EXHIBIT 10.8
JULY 24, 1997 AMENDMENT TO OPTION AND
STOCK PURCHASE AGREEMENT
AGREEMENT
This Agreement is entered into as of the 24th day of July, 1997, by and
between CARACAS VIVA VISION T.V., S.A. (AViva@) and WIRELESS CABLE &
COMMUNICATIONS, INC. (AWCCI@).
A. WCCI, Viva and the shareholders of Viva, including Comunicaciones
Centuri\n, S.A. (ACenturi\n@), Promotora Perfil 47 (APP47@) Caribbean
Communications Group, S.A. (ACCG@) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (AWilliams@) (CCG and
▇▇▇▇▇▇▇▇ being hereinafter referred to as Athe Shareholders@), have entered into
an OPTION AND STOCK PURCHASE AGREEMENT, dated November 8, 1996, as amended (the
AOption Agreement@), pursuant to which Viva and its shareholders granted to WCCI
an option (the AOption@) to acquire all of the outstanding capital stock of Viva
under the terms and conditions contained therein.
B. Pursuant to the provisions of Section 2(c) of the Option Agreement, the
Shareholders are entitled to receive, as the exercise price for the Option, cash
and shares of the capital stock of WCCI (the AOption Consideration@).
C. WCCI and the Shareholders have agreed to modify the consideration
specified in such Section 2(c) of the Option Agreement, and the amount the
Shareholders will receive for the exercise of the Option.
D. WCCI and the Shareholders desire to memorialize the modification of the
terms of the Option Agreement as between them by entering into this Agreement,
and Viva desires to acknowledge such amendment between WCCI and the Shareholders
by executing this Agreement in accordance with the provisions of Section 11(j)
of the Option Agreement.
NOW, THEREFORE, in consideration of the promises and covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, WCCI and the Shareholders agree as
follows:
1. Defined Terms. All initially capitalized terms not defined in this
Agreement will have the meanings given them in the Option Agreement. For
purposes of this Agreement, the term "PASJ Investment Amount" shall mean, with
respect to WCCI's common shares, the amount per common share initially paid or
to be paid by Petrolera Argentina San ▇▇▇▇▇, S.A. ("PASJ") with respect to the
common stock portion of its proposed investment in WCCI in exchange for equity
securities of WCCI (the "PASJ Investment"). All monetary amounts set forth in
this Agreement are in United States dollars.
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2. Amendment as Between WCCI and the Shareholders. The parties hereby
modify and amend, as between WCCI and the Shareholders and only as between WCCI
and the Shareholders (and not with respect to PP47), Section 2(c) of the Option
Agreement to such extent and in such manner as will give full force and effect
to the provisions of paragraph 3 below, and Section 2(c) of the Option Agreement
shall be of no further force or effect as between WCCI and the Shareholders (and
only as to WCCI and the Shareholders, and not PP47) to the extent contradictory
with or to paragraph 3 below. Understanding therefore that the portion of VIVA
which is owned directly or indirectly by PP47 is not affected by this Agreement.
3. Shareholder Exercise Price. Upon and subject to the reversal of the
transaction pursuant to which Centuri\n acquired its interest in VIVA, and upon
the exercise of the Option, WCCI agrees to pay to the Holding Agent on behalf of
the Shareholders, and at the Closing for disbursement to the Shareholders as
provided in and subject to the further provisions of the Option Agreement, and
as consideration upon the exercise of the Option by WCCI, the following:
(a) Cash. The amount of $216,485 Dollars of the United States in
cash, or by cashiers check, wire transfer, or other acceptable means for payment
(the ACash Portion@); and
(b) Common Stock. Such number of fully paid and non-assessable
common shares of WCCI as shall have an aggregate value of $3,550,000 (the
ACommon Stock@). The number of WCCI common shares comprising the Common Stock
shall be determined by dividing $3,550,000 by the PASJ Investment Amount for
WCCI common shares; and
(c) Preferred Stock. Three Hundred Fifty-Five Thousand (355,000)
fully paid and non-assessable Series B preferred shares of WCCI (the APreferred
Stock@). The rights, preferences and privileges of the Series B preferred shares
shall be governed by the Designation of that series filed with the Office of the
Secretary of State of Nevada.
WCCI's delivery to the Holding Agent on behalf of the Shareholders of the
consideration set forth in this paragraph 3 shall constitute effective delivery
of such consideration to the Shareholders. WCCI shall not be obligated to see to
the division or relative distribution of such consideration as between or among
the Shareholders. The Shareholders= obligation to deliver a portion of the
Exercise Price into an escrow account to be governed in accordance with the
terms of the Escrow Agreement shall be satisfied by the delivery to the Escrow
Agent of a portion of the Common Stock and Preferred Stock having a value, based
on the PASJ Investment Amount for WCCI=s common shares and a $10 value for the
Preferred Stock, of $800,000, one-half of which value shall be in Common Stock
and one-half of which value shall be in Preferred Stock.
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4. Further Actions. As further consideration for the execution by the
parties of this Agreement, they agree as follows:
(a) Employment Agreement. WCCI and ▇▇▇▇▇▇▇▇ shall enter into an
employment agreement in the United States for services to be performed on behalf
of WCCI in the United States pursuant to which WCCI will engage ▇▇▇▇▇▇▇▇ to act
in an executive capacity in Latin American Operations of WCCI during the one
year period commencing August 1, 1997 and at an annual salary of $120,000. The
employment agreement shall contain standard provisions normally found in
employment agreements, including provisions relating to termination,
non-competition and ▇▇▇▇▇▇▇▇' duties and obligations.
(b) WCCI Investment in Viva. During the first year after the
Closing of the Option Agreement, WCCI and/or its affiliates will provide Viva
with financing (in the form of loans, capital contributions, arranged third
party financing and/or otherwise as WCCI shall determine) in an amount equal to
$1.5 million budgeted for such period, as determined by WCCI's board of
directors. During the second and third years after the Closing of the Option
Agreement, WCCI and/or its affiliates will provide financing to Viva based on
such operating budgets as shall be approved by WCCI's board of directors.
Notwithstanding the foregoing, WCCI=s obligation to fund all or any portion of
the amounts set forth in this paragraph 4(b) shall be contingent upon the
existence of no adverse events in Venezuela or the telecommunications market
which would render any such investments imprudent based on the determination of
WCCI=s Board of Directors.
(c) Board Seat. Unless waived in writing by ▇▇▇▇▇▇▇▇, until the
earlier of the third anniversary of the Closing of the Option Agreement or
immediately preceding the closing of an underwritten public offering registered
with the Securities and Exchange Commission (on a form other then Forms ▇-▇, ▇-▇
or similar forms) which results in net proceeds to WCCI of at least $15 million
and a market capitalization (post money) of at least $50 million, the Company
shall use its best efforts to elect one person designated by ▇▇▇▇▇▇▇▇ to its
board of directors. In connection therewith, WCCI shall use its best efforts to
deliver to ▇▇▇▇▇▇▇▇ an executed Shareholders Agreement, in the form of Exhibit
AA@ attached hereto, relating to the agreement of certain shareholders of WCCI
to vote their equity securities in WCCI in favor of ▇▇▇▇▇▇▇▇' designee in any
such election of WCCI=s board of directors.
5. Ratification of Option Agreement. Except as specifically provided
herein, each of the parties hereto hereby ratifies and affirms the terms and
conditions of the Option Agreement, which are incorporated herein by this
reference.
6. Further Actions. The Shareholders hereby agree to use their best efforts
(which shall include, without limitation, voting any equity securities they hold
in Centuri\n) to cause the reversal of the transaction whereby Centuri\n
acquired its interest in VIVA. The securities to be acquired by WCCI upon the
exercise of the Option shall be deemed to include all interests presently held
by the Shareholders in VIVA and all interests acquired by reason of the reversal
of the Centuri\n transaction.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
CARACAS VIVA VISION T.V., S.A.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: President
WIRELESS CABLE & COMMUNICATIONS, INC.
By: /s/▇▇▇▇▇ D=Ambrosio
Its: President
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