**Exhibit 10.3**

 

**AMENDMENT No. 1 TO SALE AGREEMENT**

 

THIS AMENDMENT No. 1 TO SALE AGREEMENT,dated as of April 20,****2005 (the “Amendment”), isentered into by and among TEM Puerto Rico, Inc. (as a successor ininterest of Telefonica Larga Distancia de Puerto Rico, Inc), a corporationorganized and existing under the laws of the Commonwealth of Puerto Rico (“TEMPR”),ClearComm, L.P., a Delaware limited partnership (“ClearComm”),Syndicated Communications Venture Partners IV, L.P., a Delaware limitedpartnership (“Syncom”), Fleet Development Ventures, LLC, a Massachusettslimited liability company (“Fleet”), Opportunity Capital Partners IV,L.P., a Delaware limited partnership (“Opportunity”), Power Equities, Inc.,a Delaware corporation (“Power”, collectively with Fleet andOpportunity, the “Fleet Syndicate”), any other Person acquiring Sharesduring the term of the Agreement and NewComm Wireless Services, Inc., acorporation organized and existing under the laws of the Commonwealth of PuertoRico (the “Company”).

 

**WITNESSETH:**

 

WHEREAS, the parties have previously enteredinto a Sale Agreement dated as of March 12, 2002****(as the same may be amended from time to time, the “Agreement”),that provides for, among other things, the procedure for conducting a proposedsale of the Company;

 

WHEREAS, pursuant to Section 4.6 of theAgreement, the Agreement may be amended only upon the written consent of theCompany and Shareholders owning seventy-five per cent (75%) of the Shares on afully-diluted basis, assuming conversion of all outstanding ConvertibleSecurities; and

 

WHEREAS, the parties hereto desire to amendthe Agreement as set forth below.

 

NOW, THEREFORE, in consideration of theforegoing and the respective representations, warranties, covenants andagreements set forth herein, and intending to be legally bound hereby, theparties hereto agree as follows:

 

**ARTICLE I**

# **DEFINITIONS**

 

## Section 1.1                   DefinedTerms.  Capitalized terms used hereinbut not otherwise defined hereinshall have the meanings ascribed to such terms in the Agreement.

##  

**ARTICLE II**

# **AMENDMENTS**

 

## Section 2.1                   Amendmentto the Agreement.  All references toTLD are hereby amended and replaced with TEMPR, as a successor in interest ofTelefónica Larga Distancia de PuertoRico, Inc.

##  

## Section 2.2                   Amendmentand Restatement of the Recitals.  Thefirst Whereas clause of the Agreement is hereby amended and restated in itsentirety to read as follows:

##  

“**WHEREAS,** TEMPR and ClearComm have enteredinto a stock purchase agreement dated as the date hereof, pursuant to which

 

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TEMPR may purchase fromClearComm such number of Class A Common Stock of the Company such that,upon the purchase of such Shares and the Conversion of the ConvertibleSecurities, TEMPR will own 50.1% of the total issued and outstanding common stockof the Company, on a fully-diluted basis (the “Stock Purchase Agreement”).”

 

## Section 2.3                   Amendmentto Article I.  The defined terms“Management Agreement” and “Technology Transfer Agreement” are hereby deletedfrom Article 1 (Definitions).

##  

## Section 2.4                   Amendmentto Article II.  All referencesto Greenberg and Traurig, P.A. are deleted and replaced with Simpson Thacher &Bartlett LLP.

##  

## Section 2.5                   Amendmentof Section 2.1(a).  The lastsentence of Section 2.1(a) of the Agreement is hereby amended andrestated in its entirety to read as follows:

##  

“provided, however,that such Sale Notice may not be given prior to the earlier to occur of (i) thedelivery of an Exit Notice under the Settlement Agreement and Mutual Release byand among the Company, the Purchaser, the Seller, and the other parties nametherein (the “Settlement Agreement and Mutual Release”), or (ii) thirtysix (36) months from the execution of the Settlement Agreement and MutualRelease. For the avoidance of doubt, the Sale of the Company pursuant to thisAgreement is not subject to the acquisition by TEMPR of the Seller Shares (asdefined in the Stock Purchase Agreement) pursuant to and under the terms andconditions of the Stock Purchase Agreement.”

 

## Section 2.6                   Amendmentof Section 2.1(b)(i).  Section 2.1(b)(i) ofthe Agreement is hereby amended by adding the following clause at the endthereof:

##  

“In the event that, bythe time the Sale Notice is delivered, no bank had performed the EquityValuation under the Stock Purchase Agreement, the Appraiser shall be selectedfollowing the mechanism set forth in Section 2.02 (b) of suchagreement, counting the initial five (5) Business Days since the deliveryof the Sale Notice.”

 

## Section 2.7                   Amendmentof Section 2.1(d).  Section 2.1(d) and(e) of the Agreement  is herebyamended and restated in its entirety to read as follows:

##  

“(d)                           Ifneither TEMPR nor ClearComm has delivered a TEMPR Offer Notice or a ClearCommOffer Notice, as the case may be, before the expiration of the applicable TEMPROffer Period or ClearComm Offer Period and TEMPR or ClearComm has not delivereda TEMPR Option Notice or a ClearComm Option Notice, as the case may be, beforethe expiration of the thirty-day period applicable thereto, the Shareholdersshall use their best

 

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efforts to effect theSale of the Company to a third party purchaser which shall in no event be anAffiliate of either ClearComm or TEMPR. The Appraiser shall undertake the Sale of the Company or, if suchAppraiser is unwilling or unable to undertake the sale of the Company, theAppraiser shall select a U.S. nationally recognized investment banker (the “Bank”),with experience in the telecommunications industry, to undertake the Sale ofthe Company.  The Appraiser or the Bank,as the case may be, will undertake the Sale of the Company with a view ofobtaining the best possible terms and the highest possible purchase price, providedthat the Appraiser or the Bank, as the case may be, shall not accept anythird-party purchaser offer unless (i) the purchase price offered by suchthird party is at least equivalent to the Liquidity Valuation, (ii) theconsideration is in cash or freely-tradable securities and (iii) theCompany’s indebtedness is either repaid or assumed and each Shareholder isfully and unconditionally released from its guarantee obligations to theCompany.  In the event that the Appraiseror the Bank, as the case may be, presents to the Shareholders a third-party offerunder Customary Terms and Conditions that complies with conditions (i), (ii) and(iii) set forth in the preceding sentence, the Shareholders will have theobligation to complete the Sale of the Company. The Shareholders shall have theright at all times to attend all meetings and telephone conferences conductedby the Appraiser or the Bank, as the case may be, (or their designee) inconnection with the Sale of the Company. Notwithstanding anything to the contrary herein, if the Appraiser or theBank, as the case may be, and the Shareholders are unable to find a third partypurchaser under the conditions set forth above within six (6) months afterthe expiration of the period for the delivery of the TEMPR Option Notice or theClearComm Option Notice, as the case may be, either TEMPR or ClearComm shallhave the right, in its sole discretion, to terminate the Sale of the Company(the “Sale Termination”).

 

(e) Upon theoccurrence of a Sale Termination, neither TEMPR nor ClearComm may deliver aSale Notice pursuant to Section 2.1 for a period of six (6) months.  Thereafter, in the event a Sale Notice isdelivered, the procedures set forth in this Section 2.1 shall beapplicable.”

 

## Section 2.8                   Amendmentof Section 2.2.  Section 2.2is deleted in its entirety.

##  

## Section 2.9                   Amendmentof Article III (e).  Article III(e) is hereby amended and restated in its entirety to read as follows:

##  

## “(e) anymerger or share exchange involving all of the issued and outstanding Shareseffected for a significant business purpose (and not solely or primarily to

 

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## effecta termination of this Agreement) or any sale, transfer, conveyance ordisposition of all or substantially all of the assets and properties of theCompany.”

##  

## Section 2.10             Amendmentof Section 4.2.  Section 4.2is hereby amended and restated in its entirety to read as follows:

##  

“The substantive rightsand obligations of the parties arising out of, in connection with or ancillaryto this Agreement shall be governed by the substantive laws of the State ofFlorida, excluding conflict of laws principles.”

 

## Section 2.11             Amendmentto Section 4.3.  Section (b) ishereby amended and restated in its entirety to read as follows:

##  

“(b)                           Ifa Dispute is not settled within thirty (30) days after the notice is given tothe other parties seeking representative consideration of a Dispute, suchDispute shall be submitted for resolution to the American ArbitrationAssociation in accordance with the International Arbitration Rules of theAmerican Arbitration Association. A party wishing to submit a Dispute toarbitration shall give written notice to such effect to the other partieshereto.  The arbitration shall beresolved by a three-person arbitration panel.”

 

## And, in Section (c), reference to San Juan,Puerto Rico must be referred to Miami, Florida.

##  

## Section 2.12             Amendmentof Section 4.5.  Section 4.5is hereby amended and restated in its entirety to read as follows:

##  

“This Agreementconstitutes the entire agreement among the parties with respect to the subjectmatter hereof and supersede all prior agreements and understandings betweenthem or any of them as to the subject matter”.

 

**ARTICLE III**

# **MISCELLANEOUS**

 

## Section 3.1                   Ratification;Entire Agreement.  This Amendmentshall not be deemed to be an amendment to or effect any terms or provisions ofthe Agreement other than those amended hereby and is only intended toamend, alter or modify the Agreement as expressly stated herein.  Except as amended hereby, the Agreementremains in effect, enforceable against each of the Parties, and is herebyratified and acknowledged by each of the Parties.  This Agreement, as amended by this Amendment,constitutes the entire agreement among all the parties hereto and supersedesall prior agreements and understandings, oral and written, among all the partieshereto with respect to the subject matter hereof.

##  

## Section 3.2                   Counterparts;Facsimile Signature.  This Amendmentmay be executed in any number of counterparts, each of which shall be deemed tobe an original, and all of which together shall be deemed to be one and thesame instrument.  Any Party may execute

 

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## this Amendment byfacsimile signature, and the other Parties will be entitled to rely on suchfacsimile signature as conclusive evidence that this Amendment has been dulyexecuted by such Party.

##  

## Section 3.3                   Governing Law.  The substantive rights and obligations of theparties arising out of, in connection with or ancillary to this Agreement shallbe governed by the substantive laws of the State of Florida, excluding conflictof laws principles.

##  

## Section 3.4                   Severability.  The provisions of this Amendment shall bedeemed severable and the invalidity or unenforceability of any provision shallnot affect the validity or enforceability of the other provisions hereof.  If any provision of this Amendment, or theapplication thereof to any Person or any circumstance, is found to be invalidor unenforceable in any jurisdiction, (a) a suitable and equitableprovision shall be substituted therefor in order to carry out, so far as may bevalid or enforceable, such provision and (b) the remainder of thisAmendment and the application of such provision to other persons orcircumstances shall not be affected by such invalidity or unenforceability, norshall such invalidity or unenforceability affect the validity or enforceabilityof such provision, or the application thereof, in any other jurisdiction.

##  

## Section 3.5                   Successorsand Assigns.  This Amendment isbinding upon and shall inure to the benefit of each of the Parties and theirrespective successors and assigns.

##  

## Section 3.6                   Headings.  The headings, captions and arrangements usedin this Amendment are for convenience only and will not affect theinterpretation of this Amendment.

##  

*[Remainderof page intentionally left blank; signature pages follow]*

 

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IN WITNESS WHEREOF, the parties hereto havecaused this Amendment to be executed and delivered by their respective dulyauthorized Representative as of the date first above written.

 
|   | **NEWCOMM  WIRELESS SERVICES, INC.**                                                                                                                          |
|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                          |
|   |                                                                                                                                                          |
|   | By:                                                                                                                                                           |   |   |
|   | Name:                                                                                                                                                         |
|   | Title:                                                                                                                                                        |
|   |                                                                                                                                                          |
|   |                                                                                                                                                          |
|   | **TEM PUERTO RICO, INC.**                                                                                                                                     |
|   |                                                                                                                                                          |
|   |                                                                                                                                                          |
|   | By:                                                                                                                                                           |   |   |
|   | Name: Francisco  Martinez Davis                                                                                                                               |
|   | Title: Director                                                                                                                                               |
|   |                                                                                                                                                          |
|   |                                                                                                                                                          |
|   | By:                                                                                                                                                           |   |   |
|   | Name: Juan Ramon  Balcells                                                                                                                                    |
|   | Title: Director                                                                                                                                               |
|   |                                                                                                                                                          |
|   |                                                                                                                                                          |
|   | **CLEARCOMM,  L.P.**                                                                                                                                          |
|   |                                                                                                                                                          |
|   | By:                  SuperTel Communications Corp., its  General Partner |
|   |                                                                                                                                                          |
|   |                                                                                                                                                          |
|   | By:                                                                                                                                                           |   |   |
|   | Name:                                                                                                                                                         |
|   | Title:                                                                                                                                                        |
|   |                                                                                                                                                          |
|   |                                                                                                                                                          |
|   | **SYNDICATED  COMMUNICATIONS  VENTURE PARTNERS IV, L.P.**                                                                                                     |
|   |                                                                                                                                                          |
|   | By:                                                                                                                                                           |   | , |
|   | its General  Partner                                                                                                                                          |
|   |                                                                                                                                                          |
|   |                                                                                                                                                          |
|   | By:                                                                                                                                                           |   |   |
|   | Name:                                                                                                                                                         |
|   | Title:                                                                                                                                                        |
|        |                                                                                                                                                               |  |  |  |  |

 

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|   | **FLEET  DEVELOPMENT VENTURES, LLC.**      |
|--------|--------------------------------------------|
|   |                                       |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |
|   | Title:                                     |
|   |                                       |
|   |                                       |
|   | **OPPORTUNITY  CAPITAL PARTNERS IV, L.P.** |
|   |                                       |
|   | By:                                        |   | , |
|   | its General  Partner                       |
|   |                                       |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |
|   | Title:                                     |
|   |                                       |
|   |                                       |
|   | **POWER  EQUITIES, INC.**                  |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |
|   | Title:                                     |
|        |                                            |  |  |  |  |  |  |

 

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