**Exhibit 10.4**

 

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**AMENDEDAND RESTATED**

 

**NEWCOMMWIRELESS SERVICES, INC.**

 

**SHAREHOLDERSAGREEMENT**

 

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**April 20,2005**

 

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**AMENDEDAND RESTATED**

**NEWCOMMWIRELESS SERVICES, INC.**

**SHAREHOLDERS AGREEMENT**

 

**THIS AMENDED AND RESTATED NEWCOMM WIRELESSSERVICES, INC. SHAREHOLDERS AGREEMENT** (this “Agreement”)is made as of April 20,2005, by and among TEM Puerto Rico, Inc. (as a successor in interest ofTelefonica Larga Distancia de Puerto Rico, Inc), a corporation organized andexisting 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 Person who becomes a shareholderof the Company after the date hereof and NewComm Wireless Services, Inc.,a corporation organized and existing under the laws of the Commonwealth ofPuerto Rico (the “Company”) (TEMPR, ClearComm, Syncom and the FleetSyndicate are sometimes individually referred to as a “Shareholder” andcollectively referred to as the “Shareholders”).

 

**WHEREAS**, TEMPR, ClearComm,Syncom, Fleet, Opportunity and Power entered into that certain joint ventureagreement dated February 4, 1999, as amended (the “Joint Venture Agreement”),that provided for the creation, initial capitalization and operation of theCompany;

 

**WHEREAS**, given thecurrent situation of the Company and in consideration of the mutual promisesand covenants amongst the Shareholders, the aforementioned parties have decidedto terminate the Joint Venture Agreement and all the parties hereto have agreedto provide for, among other things, the ownership, control and governance ofthe Company in a more adequate way according to such new situation;

 

**NOW, THEREFORE**, the partieshereto hereby agree as follows:

 

**ARTICLE I**

**DEFINITIONS**

 

Capitalized terms used in this Agreement shall, unlessexpressly stated otherwise, have the meanings specified in this Article I.

 

“Affiliate” shall mean, with respect to anyspecified Person, any other Person that directly or indirectly through one ormore intermediaries, controls, is controlled by, or is under common controlwith such specified Person.  For purposesof this definition, “control” means the possession, directly or indirectly, ofthe power to direct or cause the direction of the management and policies of aPerson, whether through the ownership of voting securities, by representationon the Board of Directors, management committee or similar governing body, bycontract or otherwise.

 

“Agreement” shall mean this ShareholdersAgreement, as the same may be amended or restated from time to time hereafter.

 

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“Articles of Incorporation” shall mean theArticles of Incorporation of the Company, as amended.

 

“Business” shall have the meaning set forth in Section 2.1 hereof.

 

“Business Day” shall mean any day that is not aSaturday, a Sunday or other day on which banks are required or authorized bylaw to be closed in any of the City of New York, New York United States ofAmerica or San Juan, Puerto Rico.

 

 “CompanyOfficer” shall mean an Officer of the Company (including, withoutlimitation, the Chairman of the Board of Directors, the Chief ExecutiveOfficer, the President, the Director of Finance and the Chief Operating Officerof the Company).  For purposes of thisAgreement, an individual shall be deemed a “Company Officer” or an “Officerof the Company” if he meets the definition of “Officer” with respectto the Company, notwithstanding the fact that he is not formally elected as anofficer within the meaning of the Articles of Incorporation.

 

“Competing Enterprise” shall mean any Personconducting personal communications service networks similar to those operatedby the Company.

 

“Directors” shall mean the members of the boardof directors of the Company.

 

“Effective Date”  shall mean the date hereof.

 

“Exchange Act” shall mean the United StatesExchange Act of 1934, as amended, together with the rules and regulationspromulgated thereunder.

 

“FCC” shall mean the Federal CommunicationsCommission.

 

“Fiscal Year” shall mean the fiscal year of theCompany, which shall be the calendar year.

 

“GAAP” means generally accepted accountingprinciples and practices in the United States set forth from time to time inthe opinions and pronouncements of the Accounting Principles Board and theAmerican Institute of Certified Public Accountants and statements andpronouncements of the Financial Accounting Standards Board (or agencies withsimilar functions of comparable stature and authority within the U.S.accounting profession), which are applicable to the circumstances as of thedate of the report.

 

“Governmental Authority” shall mean, withrespect to any party, any United States federal, state, commonwealth or localor any foreign federal, state, commonwealth or local government, governmental,regulatory, or administrative authority, agency or commission or any court,tribunal, or judicial or arbitral body, having jurisdiction over such party orits assets.

 

“Honorary Directors” shall have the meaning setforth in Section 3.1(a).

 

“Indemnitee” shall have the meaning set forthin Section 8.2.

 

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“Law(s)” shall mean any statute, law, rule,regulation, ordinance, judgment, Code, order, other requirement or rule oflaw of any country or any state, commonwealth, province, locality, region orarea therein, or any other jurisdiction.

 

“Licenses” shall mean each license, permit,authorization and concession granted by any Person and held by the Companyrelating to the Business, including but not limited to, the PCS licenses forthe 1902.5-1910.0 and 1982.5-1990.0 MHZ bands for the San Juan, Puerto Rico(B488) and Mayaguez-Aguadilla-Ponce, Puerto Rico (B489) basic trading areas.

 

 “MinimumNumber” shall mean all of the issued and outstanding Shares held by theSelling Shareholders; provided that such shares have an aggregate estimateddisposition price (before deduction of underwriting discounts and expenses of sales)of at least Forty Million Dollars ($40,000,000.00) (but in no event in aninitial public offering less than an amount to create a viable public tradingmarket).

 

“Nasdaq” shall have the meaning set forth in Section 8.4.

 

“Network” shall mean a 1900 MHz band PCSnetwork in Puerto Rico associated with the Licenses.

 

“Notice of Transfer” shall have the meaning setforth in Section 6.2(a).

 

“Officer” (whether or not such term iscapitalized) shall mean an individual with significant responsibilities for operationsor policy making duties for any Person that is not an individual.

 

“Optionees” shall have the meaning set forth inSection 6.2(a).

 

“Order” shall mean any decree, determination,injunction, judgment, order, or writ of any arbitrator or GovernmentalAuthority.

 

“Original Shares”, shall mean the shares ownedby each Shareholder as of the date hereof, as set forth in Exhibit A.

 

 “OtherShareholders”, shall mean the Shareholders other than TEMPR at theEffective Date, as set forth in Exhibit A.

 

“Person” shall mean any individual,partnership, firm, corporation, limited liability company, joint venture,association, trust, unincorporated organization or any other entity.

 

“Piggyback Shares” shall have the meaning setforth in Section 8.2(a).

 

“Piggyback Registration” shall have the meaningset forth in Section 8.2(a).

 

“Pro Rata Share” means, with respect to anyShareholder, on a fully diluted basis, the percentage equal to (i) thenumber of Shares owned by such Shareholder divided by (ii) the aggregateShares owned by the other Shareholders (excluding the TransferringShareholder).

 

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“Proposal” shall have the meaning set forth in Section 6.2(a).

 

“Puerto Rico” shall mean the Commonwealth ofPuerto Rico.

 

“Purchasing Party” shall have the meaning setforth in Section 6.2(a).

 

“Registrable Shares” shall have the meaning setforth in Section 8.1.

 

“Sale Agreement” means the agreement dated asof March 12, 2002 by and among TEMPR (as a successor in interest ofTelefónica Larga Distancia de Puerto Rico, Inc), ClearComm, Syncom, the FleetSyndicate and the Company, providing for the Transfer of Shares of the Company,upon the delivery of a sale notice in accordance with the terms thereof which,as of the date hereof, is in force with no amendments.

 

“SEC” shall mean the United States Securitiesand Exchange Commission.

 

 “SecuritiesAct” shall mean the United States Securities Act of 1933, as amended, andthe rules and regulations promulgated thereunder.

 

“Selling Shareholders” shall have the meaningset forth in Section 8.1(a).

 

“Shares” shall mean all issued and outstandingshares of the Company.

 

“Stock Purchase Agreement” shall mean the StockPurchase Agreement, dated March 12, 2002, among TEMPR (as a successor ininterest of Telefónica Larga Distancia de Puerto Rico, Inc), and ClearComm, asamended.

 

“Subsidiary” or “Subsidiaries” shallmean the Persons in which the Company, at any time, directly or indirectly,beneficially owns an equity interest greater than or equal to 50%, or which theCompany, at any time, directly or indirectly, controls.

 

“Territory” shall mean Puerto Rico.

 

“Transfer” shall mean to sell, assign,transfer, give, encumber, pledge, hypothecate or in any other way dispose of.

 

“Transferring Shareholder” shall have themeaning set forth in Section 6.2(a).

 

“Violation” shall have the meaning set forth inSection 8.2.

 

**ARTICLE II**

**THE COMPANY;CONVERSION OF OUTSTANDING SHARES**

 

2.1                                 Purpose.  The Company is a wireless telecommunicationsservice provider operating the Network throughout the Territory (the “Business”).

 

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2.2                                 NoPartnership.  Nothing in thisAgreement shall be construed as creating among the Shareholders a partnership,joint venture, fiduciary or other similar relationship not expressly providedfor herein.

 

2.3                                 Effectiveness.  This Agreement shall be effective as of theEffective Date.

 

2.4                                 OneClass of Shares.  Upon theEffective Date, the Shareholders shall cause the Certificate of Incorporationof the Company to be amended to provide that the Company shall have only oneclass of Shares outstanding, each Share of which shall be entitled to one voteand which shall be issued to the Shareholders in exchange for the outstandingShares held by them in such amounts as to reflect their respective economicinterests in the Company**.**

 

**ARTICLE III**

**MANAGEMENT OF THECOMPANY**

 

3.1                                 Boardof Directors.  Each Shareholderhereby agrees to vote all of its Shares in favor of any action necessary to implementor effectuate the intent of this Agreement, including, without limitation, thepurposes set forth in this Section 3.1.

 

(a)                                  Numberof Directors; Voting for Directors.

 

(a1)                            Onthe Effective Date, the authorized number of Directors of the Company shall beestablished at six (6) Directors and each of ClearComm and TEMPR shallhave the right to designate Directors as follows:

 

(i)                                     two(2) persons shall be designated by TEMPR and the Shareholders shall voteall of their Shares in favor of such nominees; and

 

(ii)                                  four(4) persons shall be designated by ClearComm.

 

 (a2)                         Onthe closing date of the Stock Purchase Agreement, or at any other date whenTEMPR for whatever reason becomes the holder of more than 50% of the Shares,the authorized number of Directors of the Company shall be established at seven(7) Directors and each of ClearComm and TEMPR shall have the right todesignate Directors as follows:

 

(iii)                               four(4) persons shall be designated by TEMPR and the Shareholders shall voteall of their Shares in favor of such nominees; and

 

(iv)                              three(3) persons shall be designated by ClearComm (one (1) of which mustbe a director of SuperTel Communications Corp.) and the Shareholders shall voteall of their Shares in favor of such nominees. ClearComm shall further have the right to designate up to three honorarydirectors (the “Honorary Directors”) who shall be entitled to attend allmeetings of the Board of Directors but shall have no voting or other rights toparticipate in the meetings.

 

(b)                                 Term.  Each Director shall hold office for one year,renewable, or until his or her death, resignation, or his or her successor hasbeen duly appointed as set forth herein and in the bylaws of the Company.

 

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(c)                                  Vacancies.  In the event that any Director designatedhereunder by any of the Shareholders for any reason ceases to serve as a memberof the Board of Directors during, or upon the expiration of, his or her term ofoffice, the resulting vacancy on the Board shall be filled by a representativedesignated by the Shareholder entitled to designate such Director pursuant to Section 3.1(a) above.

 

(d)                                 Removalof Directors.  The removal of anydirector from the Board of Directors shall be made in accordance with theprocedure for the removal of directors set forth in Section 3(c) ofthe bylaws of the Company, or any successor section thereof setting forththe procedures for the removal of directors. The Company shall reimburse each Director and the Honorary Directors fortheir customary and reasonable expenses incurred in attending the meetings ofthe Board of Directors.

 

3.2                                 Chairmanof the Board of Directors.  The Boardof Directors shall elect as its Chairman one of the Directors designated byClearComm, as long as Section 3.1.(a1) applies, or by TEMPR, when Section 3.1.(a2)applies.

 

3.3                                 BoardMeetings.  The Board of Directorsshall hold regular meetings once every quarter, for a total of four (4) regularmeetings per year at the principal offices of the Company.  Any two (2) of the Directors designatedby TEMPR or a majority of the Directors designated by ClearComm may call aspecial meeting upon at least five (5) Business Days’ prior written noticeto the other Directors, specifying the date, time, place and agenda of themeeting; provided, however, that meetings maybe called upon shorter notice with the unanimous consent of all of theDirectors.  Meetings of the Board ofDirectors shall be conducted in English and shall be held at the principaloffice of the Company or in any other place (or country) specified in thenotice.  Directors may participate insuch meetings by means of a conference telephone or similar means ofcommunication if all persons participating in such meeting are able to heareach other at all times, and any Director participating in such manner shall bedeemed to be present at such meeting. The Company’s Secretary shall be responsible for taking minutes of themeetings and safekeeping them on behalf of the Company.  The Company shall deliver a copy of theminutes of each meeting of the Board of Directors to each Director, promptlyafter each such meeting is held in sufficient time to permit revisions of thesame prior to the next meeting of the Board of Directors at which time theminutes shall be presented for formal approval. A resolution in writing and in English (in one or more counterparts),signed by all of the Directors, shall be as valid and effectual as if passedwith a meeting of the Directors duly convened and held.

 

3.4                                 Indemnification.  Neither the Company nor the Shareholdersshall amend the provisions of the Company’s Articles of Incorporation or itsbylaws to eliminate or reduce the indemnification provided for all directorsand such provisions as written shall be regarded as a binding obligation of theCompany to indemnify each director as set forth therein.

 

3.5                                 Quorum;Voting Requirement for Action.  Amajority of the Directors shall constitute a quorum for purposes of a meetingof the Board of Directors.  All actionsof the Company shall require the affirmative vote of at least a majority of theDirectors present at a meeting of the Board of Directors, except as otherwiseprovided herein or unless otherwise required by applicable Law.

 

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3.6                                 SuperMajority Board Matters.  The approvalof at least a majority of the Directors which must include the affirmative voteof at least one of the Directors designated by ClearComm (who must also be adirector of SuperTel Communications Corp.) and the affirmative vote of at leastone of the Directors designated by TEMPR is required to approve:

 

(a)                                  theliquidation, dissolution or winding up of the Company’s business operations;

 

(b)                                 thesale, exchange or other disposition of all or substantially all of the Company’sassets, business or any of the Licenses;

 

(c)                                  themerger, spin-off, strategic alliance or other business combination orreorganization of the Company with any corporation, partnership, limitedliability company or other entity;

 

(d)                                 anymaterial change in the nature of the Business;

 

(e)                                  theissuance of any shares of capital stock (or any security convertible into orexchangeable for shares of capital stock or securities granted to the holder ofan option to acquire any such shares of capital stock) to any person or entity,including persons who are then Shareholders, or the addition of any newshareholder of the Company, provided that only a majority vote shall berequired to approve issuances of capital stock (i) as may be necessaryfrom time to time to fund cash flow deficiencies not in excess of $12.9 millionin 2005, $15.8 million in 2006 and $17.4 million in 2007, in the aggregate peryear and (ii) as may be necessary for TEMPR to own 50.1% of the issued andoutstanding equity interest of the Company on a fully-diluted basis inaccordance with Section 2.01 of the Stock Purchase Agreement;

 

(f)                                    theredemption of all or part of the Shares outstanding or the prepayment of anydebt securities;

 

(g)                                 exceptas may be required in the ordinary course of the Business consistent with priorpractice, the incurrence of any indebtedness in excess of Three Million Dollars($3,000,000) in any single transaction, consent to which shall not beunreasonably withheld;

 

(h)                                 exceptas may be required in the ordinary course of the Business consistent with priorpractice, the granting of any mortgage or deed of trust or the placing of anyother lien or encumbrance on the assets of the Company or any portion thereofthat exceeds Three Million Dollars ($3,000,000) in value, to secure any loanexcept as otherwise provided herein, and provided that consent to such actionshall not be unreasonably withheld;

 

(i)                                     exceptas may be required in the ordinary course of the Business consistent with priorpractice, the making of a single expenditure in excess of Five Million Dollars($5,000,000), consent to which shall not be unreasonably withheld;

 

(j)                                     theapproval of any dividend distribution to Shareholders in excess of the netincome for the year of the distribution, net of any prior year losses;

 

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(k)                                  anytransaction between the Company and a Shareholder or an Affiliate of suchShareholder or Officer of a Shareholder or of an Affiliate of a Shareholder;

 

(l)                                     theannual strategic business plan and operating budgets for each fiscal year andany variations or modifications which individually or in the aggregate exceedten percent of the operating budget for such annual period; in this respect,the parties acknowledge that the Company and ClearComm have proposed an annualbudget and business plan to the meeting of the board of directors of theCompany held on November 30, 2004, which has been adopted by such board asof such date and is attached as Exhibit B;

 

(m)                               theappointment of the general manager, the chief financial officer and alldirectors of each division of the Company, as well as the compensation of eachsuch person, consent to which shall not be unreasonably withheld;

 

(n)                                 theengagement of a new marketing consultant and the subsequent approval ofmarketing strategies, promotions, advertising and product development differentfrom those in effect on the date hereof, consent to which shall notunreasonably be withheld;

 

(o)                                 anymodification to the Certificate of Incorporation or bylaws of the Company; and

 

(p)                                 achange in outside attorneys or auditors.

 

Any proposed amendment,modification or waiver of all or any portion of this Section 3.6 shall bedeemed to be an amendment of this Agreement and shall therefore be subject tothe voting requirements for amendments to this Agreement set forth in Section 12.6hereof.

 

3.7                                 ExecutiveOfficers.  The number and types ofemployees hired, retained or dismissed by the Company shall be consistent withthe scope of the operations of the Company.

 

The parties acknowledgethat (i) Mr. Javier Lamoso has been designated as the general managerof the Company, and the directors of each division are those listed in Exhibit Cattached hereto; (ii) TEMPR will have the right to appoint a new generalmanager and new directors of each division when Section 3.1.(a2) applies; (iii) theCompany shall maintain its current chief financial officer in place until thelater of December 31, 2005 or such date on which the Board of Directorsapproves a new chief financial officer in accordance with the following clause(iv); and (iv) TEMPR shall have the right to nominate the chief financialofficer of the Company, as long as Section 3.1.(a1) applies, and ClearCommshall have the right to nominate the chief financial officer of the Company, aslong as Section 3.1.(a2) applies, subject to the approval of the Board,which shall not be unreasonably withheld or delayed (the sole basis for areasonable objection shall relate to the qualifications of the nominee). TheCompany shall retain the right to dismiss the chief financial officer at anytime for just cause, in which case, the appointing party will have the soleright to nominate a new chief financial officer for approval by the Board ofDirectors. The appointing party will have the right to directly consult andcommunicate with the chief financial officer.

 

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**ARTICLE IV**

**SHAREHOLDERSMEETINGS**

 

4.1                                 AnnualMeeting of the Shareholders.  Theannual meeting of the Shareholders of the Company shall be held at such timeand at the principal offices of the Company or at such other place in thedomicile of the Company as the Board of Directors shall designate in the noticeof annual meeting.

 

4.2                                 Noticeof Annual Meeting of the Shareholders. Notice of the annual meeting of the Shareholders shall be served inwriting, via telecopy or registered mail, by the Secretary of the Company, noless than fifteen (15) days prior to the date of the said meeting.  The attendance by a Shareholder at the saidmeeting shall constitute a waiver of all right to object to the form ortimeliness of the notice thereof.

 

4.3                                 SpecialMeetings of the Shareholders.** **Special meetings of Shareholdersmay be called at any time at the principal office of the Company by a majorityof the Directors designated by ClearComm, as long as Section 3.1.(a1) applies, or by TEMPR, when Section 3.1.(a2)applies, and shall be called by a majority of the Directors at the request ofShareholders owning (in the aggregate) more than thirty-five percent (35%) ofthe issued and outstanding Shares. Notice of such special meeting shall conform to the requirementsprovided in Section 4.2 hereof; butsuch notice shall set forth the purpose for which the meeting is called, and noother business shall be permitted to be transacted at such meeting unless theconsent of the holders of thirty-five percent (35%) of the issued andoutstanding Shares is first obtained, except in those instances where theprovisions of this Agreement provide that a vote of a lower percentage of theissued and outstanding Shares is required to approve the other business inquestion (in which instances such lower percentage of the issued Shares mayconsent to the transaction of such other business).  All special meetings of the shareholdersshall be held at the principal offices of the Company or at such other place inthe domicile of the Company as specified in the notice of special meeting.

 

4.4                                 Proceedingsat Meetings of the Shareholders. Meetings of the Shareholders shall be conducted in English.  Shareholders may participate in such meetingby means of a telephonic conference call or similar means of communication ifall persons participating in such meeting are able to hear each other at alltimes, and any Shareholder participating in such meeting shall be deemed to bepresent at such meeting.  A resolution inwriting in English (in one or more counterparts), signed by all of theShareholders, shall be as valid and effectual as if passed with a meeting ofShareholders duly convened and held.

 

4.5                                 Quorum.  A quorum for the transaction of business at ameeting of the Shareholders shall be fifty percent (50%) of the issued Shares.

 

4.6                                 RequiredVote.  The affirmative vote of theholders of more than fifty percent (50%) of the quorum shall be required forall actions by the Shareholders except in those instances where the provisionsof this Agreement provide that a vote of a higher percentage of the issuedShares is required for the action in question, including, but not limited tothe Super Majority Matters set forth in Section 4.7 below and amendmentsto this Agreement as set forth in Section 12.6 hereof.  Nothing set forth in this Section shallconflict with the requirements

 

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applicable to Section 3.6 hereof nor shall this Section 4.6be construed as permitting any vote or action by the Shareholders to overridethe terms of Section 3.6 hereof.

 

4.7                                 SuperMajority Matters.  The followingactions (each, a “Super Majority Matter”) shall require the affirmativevote of the holders of sixty-six and two-thirds percent (662/3%)of the issued Shares:

 

(a)                                  thedissolution or liquidation of the Company;

 

(b)                                 thecommencement by the Company or any of its subsidiaries of a case, proceeding orother action under any law relating to bankruptcy, insolvency, reorganizationor relief of debtors or seeking appointment of a receiver, trustee, custodianor other similar Person for the Company or any of its subsidiaries; and

 

(c)                                  anymodification in the number of members to be designated by the Shareholders toserve on the Board of Directors of the Company.

 

**ARTICLE V**

**FINANCIALSTATEMENTS**

 

5.1                                 Maintenanceof Records.  The Company willmaintain correct and complete books, records and accounts in which complete,correct and timely entries are made of all of its business transactionspursuant to a system of accounting established and administered in accordancewith GAAP and will set aside on its books all such proper accruals and reservesas shall be required under GAAP.

 

5.2                                 InformationObligations. The Company will deliver to TEMPR, as long as Section 3.1.(a1)applies, or to ClearComm, when Section 3.1.(a2) applies:

 

(a)                                  withinninety (90) days after the end of each fiscal year of the Company, an incomestatement for such fiscal year, a balance sheet and a statement of shareholder’sequity and a statement of cash flows as of the end of such year, each to beprepared in accordance with GAAP;

 

(b)                                 withinthirty (30) days after the end of each month, an unaudited income statement,statement of cash flows and balance sheet for and as of the end of such monthprepared in accordance with GAAP (except for the absence of footnotes andsubject to year-end adjustments);

 

(c)                                  withinforty-five (45) days as of the end of each quarter, an unaudited incomestatement, statement of cash flows, a balance sheet and a statement ofshareholder’s equity for and as of the end of such quarter, prepared inaccordance with GAAP (except for the absence of footnotes and subject toyear-end adjustments);

 

(d)                                 withinthirty (30) days after submission, a copy of any management letters anddocuments submitted to auditors; and

 

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(e)                                  withina commercially reasonable period of time after request by ClearComm or TEMPR,as applicable, such other information as it may reasonably request. In theevent that the information requested by ClearComm or TEMPR, as applicable,pursuant to clause (e), is not customarily produced for the management of theCompany or its board of directors, then such information, subject to priornotice from the Company that such information is not customarily produced forthe management and as to the estimated cost of its production, may be providedat the expense of the party requesting such information.

 

In the event thatClearComm or TEMPR, as applicable, does not receive each or all of the reports,filings and notifications described above, such party shall promptly notify theCompany.  If the Company fails to deliversuch reports within ten (10) days after receipt of such written notice,then such party shall have the right and authority, at the Company’s soleexpense, to request an audit of the Company by an accounting firm designated bysuch party.

 

**ARTICLE VI**

**RESTRICTIONS ONISSUANCE AND TRANSFER**

 

6.1                                 Restrictionson Issuance.

 

(a)                                  Exceptas provided in Section 3.6(e) ofthis Agreement, the Company shall not issue any shares of capital stock(directly, indirectly or in bankruptcy) including any interest in any suchshares or any contractual right that may entitle the holder to acquire any suchshares of stock or any interest therein, whether by operation of law orotherwise.

 

(b)                                 SpecialDilution Provision

 

(i) In the event the Company proposes to issueadditional shares of capital stock, the Company shall deliver to eachShareholder a written notice (an “Issuance Notice”) of such proposed Issuanceat least forty (40) Business Days prior to the date of the proposed issuance(the “Subscription Period”).  SuchIssuance Notice shall set forth all material terms of the proposed issuance inreasonable detail, including: (i) the number and class of shares proposedto be issued, (ii) the materials terms and conditions of the proposedissuance, (iii) the intended use of proceeds, (iv) the identity ofany third party purchaser seeking to participate in the subscription and theterms of any agreement, term sheet or discussions with such purchaser,including pricing proposals, and (iv) the subscription price.

 

(ii) Within ten (10) days upon receipt ofthe Issuance Notice, TEMPR will notify the Company whether or not it will, atits own discretion and cost, appoint an internationally recognized investmentbank selected from the list on Section 2.02(b) of the Disclosure Schedule forthe Stock Purchase Agreement to undertake an external and independent equityvaluation of the Company (the “Option Notice”). If that is the case, inpreparing the equity valuation, the selected investment bank shall consider inthe context of a non-public company seeking to raise equity (i) at leastthe following methods of valuation: discounted cash flows;

 

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comparable transactions; and trading prices of sharesof comparable publicly-held companies (applying such methods consistently withthe application of such valuation methods and standards in the personalcommunications networks industry) and (ii) the indebtedness of theCompany.  The Company shall cooperate ingood faith with the investment bank, and provide all the documentation andinformation requested to perform the equity valuation.  Upon receipt of the documentation andinformation necessary to complete the equity valuation, the investment bankshall present a report including its equity valuation within fifteen (15)Business Days of its selection by TEMPR, including, among other things, afairness opinion as to the proposed subscription price addressed to TEMPR, asof the date of the equity valuation.

 

(iii)                               Uponthe earlier to occur of (a) the receipt of the external equity valuation,or (b) the receipt of the Option Notice whereby TEMPR notifies that itwill not request the external equity valuation, the Company shall deliverwritten notification (the “Valuation Notification”) to each Shareholder of theissuance price, and a copy of the external equity valuation, as applicable, andthe proposed date of Issuance, which shall be no less than ten (10) and nomore than forty (40) Business Days after the delivery of the Valuation Notificationto each Shareholder.  Each Shareholdershall have the option, exercisable at any time during the Subscription Periodby delivering written notice to the Company (a “Subscription Acceptance”) tosubscribe for up to its Proportionate Share of any such additional Shares (a “PreemptiveRight”), at the same price per security and upon same terms as those of theproposed Issuance of such additional Shares. The “Proportionate Share” of each Shareholder shall be equal to afraction, the numerator of which is the number of outstanding shares owned bysuch Party, on a fully diluted basis, and the denominator of which is theaggregate number of Shares outstanding on a fully diluted basis.

 

(iv)                              Inthe event the external equity valuation is equal to or higher than 85% of thesubscription price set forth in the Issuance Notice or TEMPR does not requestan external equity valuation, if TEMPR (i) waives its Preemptive Rightattached to its Original Shares prior to the expiration of the SubscriptionPeriod by giving prior written notice to the Company, or (ii) fails todeliver its Subscription Acceptance within the Subscription Period, TEMPR shallbe obligated to transfer, at no cost, to the Other Shareholders the number ofits Original Shares needed for the Original Shares held by the OtherShareholders not to be diluted because of the issuance.

 

(v)                                 Inthe event the external equity valuation is equal to or higher than 85% of thesubscription price set forth in the Issuance Notice or TEMPR does not requestan external equity valuation, if TEMPR elects to partially, but not fullysubscribe its Proportional Share as regards its Original Shares, TEMPR shall beobligated to transfer, at no cost, to the Other Shareholders the number of itsOriginal Shares needed for the Original Shares held by the Other Shareholdersnot to be diluted because of the issuance with respect only to the part of theProportional Share not subscribed by TEMPR.

 

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(vi)                              Theaggregate number of Shares to be transferred by TEMPR to the Other Shareholderspursuant to Section 6.1(b)(iv) or (v), as applicable, (i) shall,under no circumstance, (y) exceed the aggregate number of Original Shares ownedby TEMPR immediately prior to the Issuance Notice, (z) be affected by theexercise, if any, by the Other Shareholders of their respective PreemptiveRights pursuant to Section 6.1(b)(i), and (ii) shall be allocatedamong such Other Shareholders proportionately based upon the relative number ofOriginal Shares owned by such Other Shareholders immediately prior to theIssuance Notice.  For avoidance of doubt,the transfer and dilution mechanisms set forth in Section 6.1(b)(iv) and(v), as applicable, shall only apply in the event (i) TEMPR (y) does notexercise its Preemptive Right or (z) elects to exercise its Preemptive Rightsfor less than the total number of shares it is entitled to acquire thereunderand (ii) the external equity valuation is not below 85% of thesubscription price set forth in the Issuance Notice or there is no externalequity valuation.

 

(vii)                           Itis acknowledged and agreed that for so long as TEMPR is a shareholder of theCompany, TEMPR may elect, at its sole and absolute discretion and option, tosubscribe to any such issuance either by capital contribution, or by convertingany FCC Related Debt (valued at principal plus accrued and unpaid interest)that it may hold as of the date of such issuance into shares at thesubscription price.

 

(viii)                        Thisclause 6.1 (b) shall be applicable for such period of time as TEMPR mayexercise its call rights (including any extension agreed by the Parties) underthe Stock Purchase Agreement.

 

6.2                                 Restrictionson Transferability; Rights of Optionees. Except for the transfers according to Section 6.1.b above (SpecialDilution Provision), which will follow the mechanism set forth thereto, thefollowing rules shall apply:

 

(a) Any Shareholder desiring to transfer itsShares (the “Transferring Shareholder”) may Transfer any of its Sharesto any third party if it receives a bona fide offer (the “Proposal”)from a reputable, financially responsible person (the “Purchasing Party”)which is acceptable to it, and not less than thirty (30) days prior to theclosing date of the proposed sale, gives written notice thereof (the “Noticeof Transfer”) to each of the other Shareholders (individually, an “Optionee”and collectively, the “Optionees”) at the addresses provided by theCompany (which shall be provided within one Business Day after request),subject to the provisions of this Section 6.2;

 

(b)                                 TheNotice of Transfer shall state that a Proposal has been received and shallcontain all the terms and conditions of the Proposal and a copy of allsupporting documents.

 

(c)                                  (i)                                     TheOptionees shall each have the option for a period of thirty (30) days (the “OptionPeriod”) after receipt of the Notice of Transfer to (A) if theTransfer is for all of the Transferring Shareholder’s Shares, commit topurchase all, but not less than all, of the Shares of the TransferringShareholder on the same terms and conditions as set

 

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forth in the Proposal, or(B) if the Transfer is a sale or exchange of less than all of theTransferring Shareholder’s Shares, elect to join in the sale or exchange; ineach case by delivering written notice of its election to the TransferringShareholder within the thirty-day period.

 

(ii)                                  Ifthe Transfer is for all of the Transferring Shareholder’s Shares, any Optioneethat wishes to purchase the Transferring Shareholder’s Shares shall provide theTransferring Shareholder with a written notice specifying the number of theTransferring Shareholder’s Shares (up to such Optionee’s Pro Rata Share) whichsuch Optionee desires to purchase, within fifteen (15) days after receipt ofthe Notice of Transfer, and may, at the Optionee’s option, indicate the maximumnumber of the Transferring Shareholder’s Shares such Optionee would purchase inexcess of such Optionee’s Pro Rata Share of the Transferring Shareholder’sShares (the “Excess Amount”).  Ifany Optionee fails to respond within such period, such failure shall beregarded as a rejection by such Optionee of its right to participate.  If one or more of the Optionees declines toparticipate in such purchase or elects to purchase less than such Optionee’sPro Rata Share, then those Shares not being purchased by such Optionee (the “ExcessOffered Shares”) shall automatically be deemed to be accepted by Optioneeswho specified an Excess Amount in their respective notice of acceptance,allocated among such Optionees (with rounding to avoid fractional shares) inproportion to their respective Pro Rata Shares determined based only on thoseOptionees seeking to purchase Excess Amounts but in no event shall an amountgreater than any Optionee’s Excess Amount be allocated to such Optionee.  This procedure shall be employed until thefirst to occur of the Entire Excess Amount of each Optionee being satisfied orall Excess Offered Shares have been allocated. All of such allocations must be completed within the Option Period.  Unless the Optionees elect to purchase all ofthe Transferring Shareholder’s Shares, the Transferring Shareholder shall beentitled to sell all of the Transferring Shareholder’s Shares in the mannerspecified in Section 6.2(e) belowand the Optionees shall have no rights with respect thereto.

 

(iii)                               Ifthe Transfer is a sale or exchange of less than all of the TransferringShareholder’s Shares, an Optionee may elect to join in the sale or exchange,and will be entitled to sell or exchange, pursuant to the terms of theProposal, a number of its Shares determined by multiplying the ApplicablePercentage times the number of Shares held by such Optionee.  In such event, the Transferring Shareholdershall use commercially reasonable efforts to obtain the agreement of thePurchasing Party to the participation of such Optionee in the sale or exchange,but if no such agreement is obtained, the Transferring Shareholder shall nottransfer any of such Transferring Shareholder’s Shares to the PurchasingParty.  For purposes of this Section 6.2(c)(iii), the Applicable Percentage means apercentage determined by dividing the number of Shares the TransferringShareholder proposes to transfer by the number of Shares held by the TransferringShareholder.

 

(d)                                 Ifany of the Optionees elect to purchase Shares of the Transferring Shareholder,the closing of the purchase shall take place on the date designated as theclosing date of the Proposal, but in no event later than thirty (30) days afterthe expiration of the Option Period, in the Company offices, or at such othertime and place as may be mutually agreed upon

 

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in writing by theTransferring Holder and the Optionees; provided, however, thatsuch period shall be extended for such period that the Optionee, if so requiredby applicable law, is in good faith and diligently pursuing the receipt of allrequired regulatory approvals for such transfer.  In the event the Optionee is advised thatsuch approvals will not be granted, it shall immediately notify theTransferring Shareholder and the Optionee’s rights hereunder with respect tosuch proposed Transfer shall terminate.

 

(e)                                  Inthe event the Optionees, as a group, (i) fail to exercise the Option infull within the Option Period, or (ii) after electing to purchase theTransferring Shareholder’s Shares, fail to close the purchase hereunder (unlesssuch failure to close is attributable to the action or inaction of theTransferring Shareholder), the Transferring Shareholder shall have the right toTransfer its Shares to the Purchasing Party designated in the Notice ofTransfer in accordance with the terms of the Proposal.  However, as a condition to the effectivenessof such Transfer, the Purchasing Party shall thereupon become a party to thisAgreement with the same rights and obligations of the Transferring Shareholderand shall confirm such fact by executing a counterpart to this Agreement.

 

6.3                                 ProhibitedTransfers.  Notwithstanding anythingto the contrary provided in this Agreement, the Shareholders will not Transferany of their Shares to any person (other than to another Shareholder) (i) whois engaged or proposes to engage in activities which would be prohibited under Section 9.1(a) hereof, except in the event of aTransfer of Shares of the Company as contemplated by the Sale Agreement, or (ii) ifsuch person’s ownership of Shares would breach the stock ownership limitationsimposed upon the Shares by the United States federal communications laws or therules and regulations promulgated by the FCC thereunder.  In addition, no Shareholder (other thanTEMPR) will Transfer any Shares to any direct or indirect competitor of TEMPRin Puerto Rico and TEMPR will not Transfer any of the Shares owned by it to anydirect or indirect competitor of ClearComm in Puerto Rico, except in the eventof a Transfer of Shares of the Company as contemplated by the Sale Agreement orin the event TEMPR or ClearComm, respectively, hold less than 20% of the capitalstock of the Company.

 

6.4                                 PermittedTransfers.

 

(a)                                  TheTransfer restrictions provided for in this Article VI will not apply to the Transfer by any Shareholder of all, or anypart of, or interest in, the Shares of the Company held by it at any time to itsrespective Affiliates.

 

(b)                                 NoTransfer pursuant to this Section 6.4shall be effective until such transferee has executed and delivered to theCompany an instrument, in the form prescribed by the Company, agreeing to bebound by this Agreement.

 

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6.5                                 Waiverof Rights. The parties hereto hereby expressly agree to unconditionally andirrevocably waive all rights of first refusal, pre-emptive rights, tag-alongrights or other similar rights held by such parties in the event of a Transferof Shares by ClearComm to TEMPR pursuant to the Stock Purchase Agreement, whichwill be subject solely to the terms and conditions set forth therein.

 

**ARTICLE VII**

**CONFLICTS WITHCERTIFICATE OF INCORPORATION AND BYLAWS**

 

**If anyconflict exists between the certificate of incorporation or the bylaws of theCompany and the terms of this Agreement, the Shareholders agree that the termsof this Agreement shall control and supersede the applicable provisions of thecertificate of incorporation and bylaws of the Company.  On Effective Date, the Shareholders willamend the bylaws to conform with the terms of this Agreement, as set forth in Exhibit D,and will consent the amendments of the certificate of incorporation set forthin Exhibit E that will have been proposed by the board of directors.**

** **

**ARTICLE VIII**

**REGISTRATIONRIGHTS**

 

Section 8.1                                      RequiredRegistration.

 

## (a)                                  Atany time after the Effective Date, any Shareholders  (the “Selling Shareholders”) mayrequest the Company to register under the Securities Act at least the MinimumNumber of Shares (the “Registrable Shares”) for sale in the mannerspecified in such notice.  The SellingShareholders shall be entitled to select the lead managing underwriter for anyrequest made under this Section 8.1,which underwriter shall be reasonably satisfactory to TEMPR and ClearComm.  Notwithstanding anything to the contrarycontained herein, the Company shall not be required to cause a registrationstatement requested hereunder to become effective prior to one hundred eighty(180) days following the effective date of the most recent registration by theCompany of securities under the Securities Act (other than on Form S-4 orS-8 or any successor to such forms); provided, however, that the Company shalluse all commercially reasonable efforts to achieve such effectiveness promptlyfollowing such one hundred eighty (180) day period if the Selling Shareholders’request has been made prior to the expiration of such one hundred eighty (180)day period.  The Company shall not berequired to effect more than one registration pursuant to this Section 8.1(a). In the event the Company shall have filed a registration statement uponthe request of the Selling Shareholders pursuant to this Section 8.1(a), and a Selling Shareholder subsequentlyshall have withdrawn such request for registration (other than as a result ofthe delays contemplated by Section 8.1(b)),such withdrawn registration shall constitute the one demand registrationpermitted by such Selling Shareholder pursuant to this Section 8.1(a).

##  

(b)                                 TheSelling Shareholders shall bear and pay all expenses incurred in connectionwith the registration, filing or qualification of Registrable Shares pursuantto this Section 8.1, including,without limitation, all registration, filing and qualification fees, printingand accounting fees relating or apportionable thereto, the fees anddisbursements of counsel, underwriting discounts and commissions.

 

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Section 8.2                                      PiggybackRegistration.

 

(a)                                  Ifthe Company at any time (other than the initial public offering of CompanyShares) proposes to register any of its securities under the Securities Act forsale to the public, whether for its own account or for the account of othershareholders or both (except with respect to registration statements on Forms S-4,S-8 or any successor to such forms), each such time it will give written noticeto the Selling Shareholders of its intention to do so.  Upon the written request of a SellingShareholder, received by the Company within twenty (20) days after the givingof any such notice by the Company, the Company will use its commerciallyreasonable efforts to cause the Shares of such Selling Shareholder as to whichregistration shall have been so requested to be included in the securities tobe covered by the registration statement proposed to be filed by the Company,all to the extent requisite to permit the sale or other disposition by suchSelling Shareholder of such Shares so registered.  In the event that any registration pursuantto this Section 8.2 shall be, inwhole or in part, an underwritten public offering of Shares, the number ofShares of the Selling Shareholders to be included in such an underwriting maybe reduced if and to the extent that the managing underwriter shall be of theopinion that such inclusion would adversely affect the marketing of thesecurities to be sold by the Company therein. Notwithstanding the foregoing provisions, the Company may withdraw anyregistration statement referred to in this Section 8.2 without thereby incurring any liability to such SellingShareholders.

 

(b)                                 Inthe event any Piggyback Shares are included in a registration statement underthis Agreement:

 

(i)                                     Tothe extent permitted by law, the Company will indemnify and hold harmless theSelling Shareholders and each of their respective officers and directors, anyunderwriter (as defined in the Securities Act) of the Selling Shareholders andeach person, if any, who controls such Selling Shareholders or the underwriterwithin the meaning of the Securities Act or the Exchange Act (each, forpurposes of this Section 8.2, an “Indemnitee”),against any losses, claims, damages or liabilities to which they may becomesubject under the Securities Act, or the Exchange Act or other federal or statelaw, insofar as such losses, claims, damages or liabilities (or actions inrespect thereof) arising out of or are based upon any of the followingstatements, omissions or violations (collectively, a “Violation”): (A) anyuntrue statement or alleged untrue statement of a material fact contained insuch registration statement, including any preliminary prospectus or finalprospectus contained therein or any amendments or supplements thereto, (B) theomission or alleged omission to state therein a material fact required to bestated therein, or necessary to make the statements therein not misleading, or (C) anyviolation or alleged violation by the Company of the Securities Act, theExchange Act, any state securities law or any rule or regulationpromulgated under the Securities Act, or the Exchange Act or any statesecurities law; and the Company will pay to each such Indemnitee, as incurred,any legal or other expenses reasonably incurred by them in connection withinvestigating or defending any such loss, claim, damage, liability or action; provided,however, that this indemnity agreement shall not apply to amounts paidin settlement of any such loss, claim, damage, liability or action if suchsettlement is effected without the consent of the Company (which consent shallnot be unreasonably withheld), nor shall the Company be liable in any such casefor any such loss, claim,

 

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damage, liability oraction to the extent that it arises out of or is based upon a Violation whichoccurs in reliance upon and in conformity with written information furnishedexpressly for use in connection with such registration by any such Indemnitee.

 

(ii)                                  tothe extent permitted by law, each Selling Shareholder will indemnify and holdharmless the Company, each of its directors, each of its officers who hassigned the registration statement, each person, if any, who controls theCompany within the meaning of the Securities Act, any underwriter, any otherCompany shareholder selling securities in such registration statement and anycontrolling person of any such underwriter of such other Company shareholder,against any losses, claims, damages, or liabilities to which any of the foregoingpersons may become subject under the Securities Act, or the Exchange Act orother federal or state law, insofar as such losses, claims, damages, orliabilities (or actions in respect thereto) arise out of or are based upon anyViolation, in each case to the extent (and only to the extent) that suchViolation occurs in reliance upon and in conformity with written informationfurnished by such Selling Shareholder expressly for use in connection with suchregistration; and such Selling Shareholder will pay, as incurred, any legal orother expenses reasonably incurred by any person intended to be indemnifiedhereunder, in connection with investigation or defending any such loss, claim,damage, liability, or action; provided, however, that thisindemnity agreement shall not apply to amounts paid in settlement of any suchloss, claim, damage, liability or action if such settlement is effected withoutthe consent of such Selling Shareholder, which consent shall not beunreasonably withheld.

 

(iii)                               Promptlyafter receipt by an indemnified party of notice of the commencement of anyaction (including any governmental action), such indemnified party will, if aclaim in respect thereof is to be made against any indemnifying party, deliverto the indemnifying party a written notice of the commencement thereof and theindemnifying party shall have the right to participate in, and to the extentthe indemnifying party so desires, jointly with any other indemnifying partysimilarly noticed, to assume the defense thereof with counsel mutuallysatisfactory to the parties; provided, however, that anindemnified party (together with all other indemnified parties which may berepresented without conflict by one counsel) shall have the right to retain oneseparate counsel, with the fees and expenses to be paid by the indemnifyingparty, if representation of such indemnified party by the counsel retained bythe indemnifying party would be inappropriate due to actual or potentialdiffering interests between such indemnified party and any other partyrepresented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within areasonable time of the commencement of any such action, if materially prejudicialto its ability to defend such action, shall relieve such indemnifying party ofany liability to the indemnified party to the extent of such prejudice, but theomission so to deliver written notice to the indemnifying party will notrelieve it of any liability that it may otherwise have to any indemnifiedparty.

 

(iv)                              theobligations of the Company and each Selling Shareholder under this Section 8.2 shall survive the completion of anyoffering of Shares under this Agreement and termination of this Agreement.

 

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Section 8.3                                      “MarketStand-Off” Agreement.  During theperiod of duration specified by the Company and an underwriter of Shares (orother securities convertible into Shares) of the Company (which period shallnot exceed one hundred eighty (180) days), following the effective date of aregistration statement of the Company filed under the Securities Act, noShareholder shall, to the extent requested by the Company and such underwriter,directly or indirectly sell, offer to sell, contract to sell (including,without limitation, any short sale), grant any option to purchase or otherwisetransfer or dispose of (other than to those who agree to be similarly bound)any Shares (or other securities convertible into Shares) of the Company held byit at any time during such period (except, (i) transfers between or amongShareholders; (ii) the Shares included in such registration; and (iii) transfersto Affiliates of the transferor).

 

Section 8.4                                      Listing.  In connection with a registration pursuant toArticle VIII of this Agreement, theCompany will use all commercially reasonable efforts to qualify the Companystock sold pursuant to such registration to trade on a United States nationalsecurities exchange or on the National Association of Securities DealersAutomated Quotation (“Nasdaq”) system and to maintain the inclusion ofsuch Shares on a United States national securities exchange or the Nasdaqsystem for a period of four years after the effective date of a registrationstatement filed with the SEC pursuant to this Agreement.  The Nasdaq system shall mean the NasdaqNational Market.

 

**ARTICLE IX**

**OTHER AGREEMENTS**

 

Section 9.1                                      General.  Each of the Shareholders covenants and agreesas follows:

 

(a)                                  NoShareholder nor any Affiliate thereof shall, during the term of this Agreementand for a period of three years after it ceases to own any Shares, and in theservice and/or geographic areas set forth and described in the terms andconditions of the Licenses or in any license or concession that is currentlypending or has been requested by the Company, directly or indirectly own,manage, operate, control, finance or participate in the ownership, management,operation, control or financing of any Competing Enterprise; provided, however,that this provision shall not apply to any Shareholder’s ownership oracquisition, solely as an investment, of equity or debt securities thatrepresent no more than three percent (3%) of the outstanding voting securitiesof a Competing Enterprise that is listed or admitted for trading on asecurities exchange or similar system. To the extent that the covenants provided for in this Section 9.1 may later be deemed by a court to be toobroad to be enforced with respect to its duration or with respect to anyparticular activity or geographic area, the court making such determinationshall have the power to reduce the duration or scope of the provision, and toadd or delete specific words or phrases to or from the provision.  The provision as modified shall then beenforced.

 

(b)                                 NoShareholder nor any Affiliate thereof shall, during the term of this Agreementand for a period of three years after it ceases to own any Shares, directly orindirectly, for itself or for any other Person: (i) attempt to solicit the employment of any employee of theCompany, and/or (ii) call on or solicit any of the actual or targetedprospective customers or clients of the Company with regard to the sale ofgoods or services competitive

 

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with the Company, nor any Shareholder make known thenames and addresses of such customers or any information relating in any mannerto the Company’s relationships with such customers.

 

(c)                                  NoShareholders nor any Affiliate thereof shall at any time divulge, communicate oruse to the detriment of the Company or for the benefit of any other person orpersons, or misuse in any way, the contents of this Agreement or anyarrangements contemplated hereby or any confidential information pertaining tothe Company or its business.  Anyconfidential information or data now known or hereafter acquired by anyShareholder with respect to the Company and its business shall be deemed avaluable, special and unique asset of the Company that is received by anyShareholder in confidence and as a fiduciary, and such Shareholder shall remaina fiduciary to the Company with respect to all of such information.

 

Section 9.2                                      Injunction.  It is recognized and hereby acknowledged bythe parties hereto that a breach or violation by any Shareholder of any or allof the covenants and agreements contained in this Section 9.1 may causeirreparable harm and damage to the Company in a monetary amount which may bevirtually impossible to ascertain.  As aresult, each Shareholder recognizes and hereby acknowledges that the Companyshall be entitled to an injunction from any court of competent jurisdictionenjoining and restraining any breach or violation of any or all of thecovenants and agreements contained in this Section 9.1 by the Companyand/or its associates, Affiliates, partners or agents, either directly orindirectly, and that such right to injunction shall be cumulative and inaddition to whatever other rights or remedies the Company may possesshereunder, at law or in equity.  Nothingcontained in this Section 9.1 shall be construed to prevent the Companyfrom seeking and recovering from a Shareholder damages sustained by it as aresult of any breach or violation by such Shareholder of any of the covenantsor agreements contained herein.

 

Section 9.3                                      Listof Stockholders.  The Companyrepresents and warrants to the Shareholders that the list of existingshareholders and their respective shareholding set forth on Exhibit Ahereto is the full, complete and accurate list of the Company’s shareholders andthere are no other shareholders of the Company.

 

Section 9.4                                      Issuanceof shares in connection with the Stock Purchase Agreement. In the event ofan issuance of shares pursuant to Section 3.6 (e) in connection withthe Stock Purchase Agreement, the parties hereby agree that (x) they will votein favor of such issuance and waive all their pre-emptive rights and (y) thesubscription price will be calculated based on the Equity Valuation performedby the investment bank in accordance with Section 2.02 of the StockPurchase Agreement.

 

**ARTICLE X**

**SHARE PROVISIONS**

 

10.1                           Legend.  Each certificate representing the Sharesshall be stamped or otherwise imprinted with a legend in substantially thefollowing form (in addition to any legend required under applicable securitiesLaws):

 

THESHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN COVENANTS, AS SETFORTH IN

 

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THEAMENDED AND RESTATED SHAREHOLDERS AGREEMENT BETWEEN THE SHAREHOLDERS OF THECOMPANY, DATED AS OF APRIL 20, 2005. A COPY OF SUCH AGREEMENT MAY BE OBTAINED FROM THE SECRETARY OF THECOMPANY.

 

Each Shareholder consentsto the Company’s making a notation on its records and giving instructions toany transfer agent of the Shares in order to implement the restrictions onTransfer established in this Section 10.1.

 

**ARTICLE XI**

**TERMINATION**

 

This Agreement (other than Article IX hereof) shall terminate upon the date of thefirst to occur of any of the following events:

 

(a)                                  the(voluntary or involuntary) dissolution or liquidation of the Company;

 

(b)                                 theexpiration of ninety (90) days after a petition in bankruptcy (or similarpetition) shall have been filed by or against the Company if not dismissed ordischarged within such 90 day period, provided that a voluntary petitionfor bankruptcy by the Company shall not cause the termination of thisAgreement;

 

(c)                                  theappointment of a receiver for the Company or the making of an assignment by theCompany for the benefit of creditors;

 

(d)                                 themutual written consent of all persons (or entities) then holding all of theissued and outstanding Shares; and/or

 

(e)                                  anymerger or share exchange involving all of the issued and outstanding Shareseffected for a significant business purpose (and not solely or primarily toeffect a termination of this Shareholders Agreement), or any sale, transfer,conveyance or disposition of all or substantially all of the assets andproperties of the Company.

 

Nothing contained in this Article XI shall affect or impair any rights or obligationsarising prior to the time of termination, or which may arise by an eventcausing the termination, of this Agreement. Except with respect to Article IX,this Agreement shall terminate as to any specific Shareholder upon the datesuch Shareholder ceases to own any Shares (if and only if transferred ordisposed of in accordance with this Agreement).

 

**ARTICLE XII**

**GENERAL PROVISIONS**

 

12.1                           CreditAgreements. Each of the Shareholders agrees that it will not exercise anyof its rights under this Agreement if such exercise results, or with thepassage of time would result, in a default or an event of default under anyexecuted credit agreement, guarantee, sponsor

 

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contribution agreement or any other executed documentrelated to a credit facility that may be granted to the Company, and which isin effect at the time of such exercise.

 

12.2                           Remedies.  Each Shareholder agrees that it would beimpossible or inadequate to measure and calculate the damages to the otherparties hereto and to the Company resulting from any breach of the restrictionsor obligations imposed by this Agreement. Accordingly, each Shareholder agrees that if such party breaches anysuch restrictions or obligations, each other party hereto and the Company willhave, in addition to any other right or remedy available, the right to obtainan injunction from a court of competent jurisdiction restraining such breach orthreatened breach and to specific performance of such arrangement.

 

12.3                           GoverningLaw; Submission to Jurisdiction; Venue; Costs and Expenses.  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.

 

12.4                           Arbitration.

 

(a)                                  Anydispute, controversy or claim of any kind or character arising out of, relatingto or in connection with this Agreement (whether based in tort, contractual orstatutory principles), including any question regarding its existence, validityor termination, or regarding a breach thereof (hereafter, “Dispute”)shall be submitted to a representative of each of the parties involved toattempt to reach an amicable resolution. A party wishing to initiate consideration of a dispute by suchrepresentative shall give written notice to the other parties hereto of theexistence of such dispute and of the party’s desire to have such representativeconsider the dispute.  Such notice shallset forth a brief description of the nature of the dispute to be considered.

 

(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 parties hereto.  The arbitration shall be resolved by athree-person arbitration panel.

 

(c)                                  Thesite of the arbitration shall be Miami, Florida, or such other location as theparties in arbitration may mutually agree in writing, any award shall be deemedto have been made there, and the language to be used in the arbitrationproceedings shall be the English language with a simultaneous translation intoSpanish.  Any award shall be in writingin the English language and state the reasons and contain reference to the legalgrounds upon which it is based.  Theaward may be made public only with the written consent of all parties to thearbitration; provided, however, that any ruling or award, finalor otherwise, may be cited in any subsequent dispute or proceeding to enforcesuch ruling.

 

12.5                           EnglishLanguage.  In the construction andinterpretation of the terms and provisions of this Agreement, the Englishlanguage version of this Agreement shall be the official version of thisAgreement and any version of this Agreement that has been translated

 

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into another language shall have no force and effectexcept for purposes of enforcing this Agreement in a court of law that requiresthat the Agreement be presented in another language; provided, however,that any such translation must be reviewed and accepted by both parties.

 

12.6                           EntireAgreement.  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 such subject matter.

 

12.7                           Amendment.  This Agreement may be amended only upon thewritten consent of the Company and the Shareholders owning seventy-five percent(75%) of the Shares.

 

12.8                           Successors.  This Agreement shall be binding upon andshall inure to the benefit of the parties hereto and their respective heirs,executors, legal representatives, successors, and permitted transferees, exceptas may be expressly provided otherwise herein.

 

12.9                           BindingEffect; Assignment.  This Agreement,including the rights and conditions contained herein in connection withdisposition of Shares, shall be binding upon the parties hereto, together withtheir respective executors, administrators, successors, personalrepresentatives, heirs and assigns permitted under this Agreement.

 

12.10                     FutureActions.  The Company and theShareholders shall execute and deliver all such future instruments and takesuch other and further action as may be reasonably necessary or appropriate toeffectuate the provisions of this Agreement and the intention of the parties asexpressed herein.  The Company and theShareholders further agree to negotiate in good faith with respect to anyamendments of this Agreement which may be required in order to obtain approvalof the transactions contemplated herein or in the Stock Purchase Agreement byany Governmental Authority.

 

12.11                     Invalidityof Provisions.  In the case any oneor more of the provisions contained in this Agreement shall for any reason beheld to be invalid, illegal or unenforceable in any respect, such invalidity,illegality or unenforceability shall not affect any other provision of thisAgreement and such invalid, illegal and unenforceable provision shall be reformedand construed so that it will be valid, legal, and enforceable to the maximumextent permitted by applicable Law.

 

12.12                     Confidentiality.  Each party hereto agrees that it will keepconfidential and will not disclose or divulge any confidential, proprietary orsecret information which such party may obtain from the Company pursuant tofinancial statements, reports and other materials submitted by the Company tosuch party pursuant to this Agreement, or pursuant to visitation or inspectionrights granted hereunder, or by virtue of its relationship as a shareholder ofthe Company, unless such information is (a) known, or until suchinformation becomes known, to the public other than due to disclosure thereofby such party, (b) other than as a result of a breach of an obligation ofconfidentiality to the Company (x) is already in such party’s possessionand was not subject to confidentiality under any other agreement between theparties, or (y) becomes available to such party on a non-confidentialbasis from a source other than the Company; provided, however,that such party may disclose such information (i) on a confidential basisto its attorneys, accountants, consultants and other professionals to theextent necessary to obtain their services in connection

 

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with its investment in the Company; (ii) on aconfidential basis to its Affiliates when obligated to do so; and (iii) asrequired by applicable Law or a Governmental Authority, in which case suchparty will promptly notify the Company of such request and cooperate with theCompany in its efforts to obtain a protective order or other appropriate remedyto limit the scope of such disclosure.

 

12.13                     Notice.  Any notice, demand or request required orpermitted to be given by the Company or the Shareholders pursuant to the termsof this Agreement shall be in writing, shall be delivered personally, bymessenger, recognized overnight or international courier service, or byfacsimile at the addresses of the parties set forth on Exhibit F hereto orsuch other address as a party may request by notifying the other in writing,and shall be deemed delivered upon receipt.

 

12.14                     No Waiver.  Any party’s failure to enforce any provisionor provisions of this Agreement shall not in any way be construed as a waiverof any such provision or provisions, nor prevent that party thereafter fromenforcing each and every other provision of this Agreement.  The rights granted both parties herein arecumulative and shall not constitute a waiver of any party’s right to assert allother legal remedies available to it under the circumstances.

 

12.15                     Headings.  All Section headings herein and in thetable of contents hereto are for convenience of reference only and are not partof this Agreement, and no construction or inference shall be derived therefrom.

 

12.16                     Variationin Terms.  All pronouns and anyvariations thereof shall be deemed to refer to the masculine, feminine, orneuter, singular or plural, as the identity of the person or persons or entityor entities may require. Each defined term herein may be used in either itssingular or plural form whether or not so defined.

 

12.17                     Exhibits.  The Exhibits are a part of this Agreement asif fully set forth herein.  Allreferences to Sections and Exhibits shall be deemed references to such parts ofthis Agreement, unless the context shall otherwise require.

 

12.18                     Counterparts.  This Agreement may be executed in any numberof counterparts, each of which shall be enforceable against the partiesactually executing such counterparts, and all of which together shallconstitute one instrument.

 

24

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This **SHAREHOLDERSAGREEMENT** is hereby executed as of the date first above written.

 
|   | **NEWCOMM WIRELESS SERVICES, INC.**                      |
|--------|----------------------------------------------------------|
|   |                                                     |
|   |                                                     |
|   | By:                                                      |   |   |
|   | Name:                                                    |   |   |
|   | Title:                                                   |   |   |
|   |                                                     |
|   |                                                     |
|   | **TEM PUERTO RICO, INC.**                                |
|   |                                                     |
|   |                                                     |
|   | By:                                                      |   |   |
|   | Name:  Francisco Martínez-Davis                     |
|   | Title:  Director                                         |
|   |                                                     |
|   |                                                     |
|   | By:                                                      |   |   |
|   | Name: Juan  Ramón 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: |   |   |
|        |                                                          |  |  |  |  |  |  |  |  |  |  |  |

 

25

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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:                                     |   |   |
|        |                                            |  |  |  |  |  |  |  |  |  |

 

26

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