**Exhibit 10.2**

 

**AMENDMENT No. 6 TO STOCK PURCHASEAGREEMENT**

 

THIS AMENDMENT No. 6 TO STOCK PURCHASEAGREEMENT, dated as of April 20,2005 (the “Amendment”), is entered into by and among TEM PuertoRico, Inc., a corporation organized under the laws of the Commonwealth ofPuerto Rico and a successor in interest to Telefónica Larga Distancia de PuertoRico, Inc., a corporation formed under the laws of the Commonwealth ofPuerto Rico (the “Purchaser”), ClearComm, L.P., a limited partnershiporganized under the laws of Delaware (the “Seller”), and NewCommWireless Services, Inc., a corporation formed under the laws of theCommonwealth of Puerto Rico (the “Company”).  The Purchaser, together with the Seller andthe Company, are collectively referred to herein as the “Parties” andeach individually as a “Party.”

 

**WITNESSETH:**

 

WHEREAS, the Purchaser and the Seller havepreviously entered into a Stock Purchase Agreement, dated as of March 12,2002****(as the same may be amendedfrom time to time, the “Agreement”), pursuant to which, subject to theterms and conditions of the Agreement, at the Closing the Seller will sell tothe Purchaser, and the Purchaser will purchase from the Seller, such number ofShares of the Company such that, upon conversion of the Convertible Securitiesand the acquisition of the Shares to be purchased thereunder, the Purchasershall own 50.1% of the issued and outstanding equity interests of the Companyon a fully-diluted basis;

 

WHEREAS, the Purchaser has determined toconvert the Convertible Securities at this time, in accordance with theSettlement Agreement and Mutual Release, entered into as of the date hereof,but the Parties have determined that the purchase of a controlling interestpursuant to the Agreement should be converted into an option for the Purchaserand deferred for three (3) years as set forth herein;

 

WHEREAS, pursuant to Section 10.08 ofthe Agreement, the Agreement may be amended with the written consent of theparties thereto; 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.

##  

“Settlement Agreement and Mutual Release”shall mean that certain settlement agreement and mutual release by and among by and among the Company, Telefónica MóvilesS.A., a corporation organized under the laws of Spain, the Purchaser, theSeller, and the other parties named therein.

 

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**ARTICLE II**

# **AMENDMENTS**

 

## Section 2.1                   Amendmentto Section 1.01.  The definedterm “Project Financing Facility” is hereby deleted from Section 1.01(Definitions).

##  

## Section 2.2                   Amendmentand Restatement of Section 2.01. Section 2.01 of the Agreement (Purchase and Sale of the SellerShares) is hereby amended and restated in its entirety to read as follows:

##  

“Upon the terms andsubject to the conditions of this Agreement, at the Closing, the Seller shallsell to the Purchaser, and the Purchaser shall purchase from the Seller all ofthe Seller’s right, title and interest in such number of Shares, such that,after giving effect to such sale, the Purchaser shall own 50.1% of the issuedand outstanding equity interest of the Company on a fully-diluted basis,assuming the conversion into Shares of all the Convertible Securities in theamounts set forth in Section 3.02 of the Disclosure Schedule (the “SellerShares”).  It is expressly agreed andacknowledged that, irrespective of the number of Shares owned by the Purchaserimmediately prior to the Closing (it being understood that at such time thePurchaser may own less than 49.9% of the then issued and outstanding equityinterests of the Company in the event the Purchaser’s equity interest isdiluted as a result of a capital increase of the Company or otherwise andassuming that the Purchaser shall not have, directly or indirectly, disposed ofits Shares (whether by sale, exchange, merger, assignment, conveyance, transferof otherwise)), the number of Seller Shares to be sold by the Seller to thePurchaser at the Closing shall be sufficient to result in the Purchaser owningimmediately after Closing an aggregate number of Shares equal to 50.1% of thethen issued and outstanding equity interests of the Company on a fully-dilutedbasis.  It is further agreed andacknowledged that, in the event the Seller does not own enough Seller Shares tosatisfy its obligations under this Section 2.01, the Company shall issueto the Purchaser pursuant to and under the terms and conditions of theShareholders Agreement and at a price per share based upon the Equity Valuationsuch number of shares as shall be necessary to permit the Purchaser to own50.1% of the issued and outstanding equity interest of the Company after suchissuance.”

 

## Section 2.3                   Amendmentand Restatement of Section 2.02(a). Section 2.02(a) of the Agreement is hereby amended andrestated to read as follows:

##  

“As payment in full forthe Seller Shares, Purchaser shall pay, in the manner set forth in Section 2.06,the Purchase Price, as

 

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determined in accordancewith Sections 2.02(b), (c), and (d) hereof.”

 

## Section 2.4                   Amendmentof Section 2.02(c).  The lastsentence of Section 2.02(c) of the Agreement (Purchase Price) ishereby amended by adding the following clause at the end thereof:

##  

“, provided forthe avoidance of doubt, that in the event Seller Shares necessary to obtain thecontrol of the Company (the “Control Shares”) are acquired by thePurchaser from the Seller, the Purchase Price to be delivered by the Purchaserto the Seller shall not include any premium (whether such premium is an imputedpremium for “control” or the Premium defined in the Settlement Agreement andMutual Release) with respect to such Control Shares, and the Premium shall bepaid pursuant to and under the terms and conditions of the Settlement Agreementand Mutual Release.

 

## Section 2.5                   Inclusionof New Section 2.02(d).  A New Section 2.02(d) shallbe included to read as follows:

##  

“Notwithstandingparagraphs (b) and (c) above, in the event within the three months prior to the receipt ofthe Purchase Notice (as defined in Section 2.03(a)), a Liquidity Valuationor a Revised Liquidity Valuation, as the case may be, has been delivered inaccordance with Section 2.1(b) and (c) of the Sale Agreement,the latest of such valuation shall be deemed to be the Equity Valuation forpurposes of determining the Purchase Price as set forth in paragraph (c) above.  Such Equity Valuation shall bear interest ata rate equal to LIBOR+1% starting to accrue on the notification of thevaluation until the satisfaction of the conditions set forth in Section 7.01(c) and7.02(c).”

 

## Section 2.6                   Amendmentand Restatement of Section 2.03(a). Section 2.03(a) of the Agreement (Pre-Closing and Closing) ishereby amended and restated in its entirety to read as follows:

##  

“At such time as thePurchaser believes that all of the conditions to Closing contained in Sections7.01 (except for 7.01(c)) and 7.02 (except for 7.02(c)) have been satisfied orwaived, or at any time thereafter before the termination of this Agreement, thePurchaser shall have the right, but not the obligation, in its sole andabsolute discretion, to deliver a written binding notice (the “PurchaseNotice”) to the Seller indicating the Purchaser’s intention to acquire theSeller Shares upon the terms and subject to the conditions of the Agreement.

 

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The Parties agree tocooperate in good faith and use their commercially reasonable best efforts totake or cause to be taken all actions and do or cause to be done all thingsnecessary, proper, advisable or required to obtain the satisfaction of theconditions set forth in Section 7.01(c) and 7.02(c) (including,without limitation, completing such steps as were necessary for the obtainingof the authorization granted on August 12, 2004 by the FCC to thePurchaser relating to the transfer of control of NewComm to the Purchaser)after the delivery and reception of the Purchase Notice.

 

Within five (5) daysof the later to occur of (i) the receipt by the Purchaser of the EquityValuation report from the investment bank and (ii) the satisfaction of theconditions set forth in Section 7.01(c) and 7.02(c), a pre-closingwill be held at the offices of the Purchaser’s New York counsel, SimpsonThacher & Bartlett LLP, or such other location as the Purchaser mayadvise, at 10:00 A.M. New York time. At such pre-closing, the Parties shall provide evidence to each otherthat each of the applicable conditions for the pre-closing has been satisfiedand shall deliver to each other all consents, approvals, waivers andcertificates specified in Sections 7.01 and 7.02 and any and all othercorporate documents contemplated in this Agreement.  If the Purchaser agrees that all the conditionsfor the pre-closing are satisfied, the date of the pre-closing shall be deemedto be the pre-closing date (the “Pre-Closing Date”).”

 

## Section 2.7                   Amendmentand Restatement of Section 2.04. Section 2.04 of the Agreement (Closing Deliveries by the Seller) ishereby amended and restated in its entirety to read as follows:

##  

“At theClosing the Seller shall deliver or cause to be delivered to the Purchaser:

 

### (a)          the stockcertificates for the Seller Shares duly endorsed to Purchaser;

###  

### (b)         acertificate or certificates to the effect that the conditions to Closing in Section 7.02 herein have been satisfied;

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### (c)          theCorporate Records; and

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### (d)         thecertificates and other documents required to be delivered pursuant to Section 7.02.”

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## Section 2.8                   Amendmentand Restatement of Section 2.05. Section 2.05 of the Agreement (Closing Deliveries by the Purchaser)is hereby amended and restated in its entirety to read as follows:

##  

“At theClosing the Purchaser shall deliver or cause to be delivered to the Seller:

 

### (a)          the cashpayment for the Seller Shares being transferred constituting the Purchase Pricefor the Seller Shares;

 

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### (b)         the cashpayment, if any, for the Shares being issued by the Company pursuant to Sections2.01 and 2.07 hereof;

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### (c)          acertificate to the effect that the conditions in Section 7.01 have been satisfied;

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### (d)         a receiptfor the Seller Shares being transferred; and

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### (e)          thecertificates and other documents required to be delivered pursuant to Section 7.01.”

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## Section 2.9                   Amendmentto Article II.  Article IIis hereby amended by adding a Section 2.07 at the end thereof:

##  

“At theClosing, to the extent the number of Seller Shares to be transferred by theSeller to the Purchaser pursuant to Section 2.01 hereof shall not besufficient to permit the Purchaser to own 50.1% of the issued and outstandingequity interest of the Company, the Company shall issue to the Purchaser suchnumber of shares as shall be necessary to permit the Purchaser to own 50.1% ofthe issued and outstanding equity interest of the Company after such issuance.”

 

## Section 2.10             Amendmentof Section 7.01.  Section 7.01of the Agreement (Conditions to Obligations of the Seller) is hereby amendedand restated in its entirety to read as follows:

##  

“Theobligations of the Seller to consummate the transactions contemplated by thisAgreement shall be subject to the fulfillment or waiver by the Seller (otherthan those conditions in Sections 7.01(a) and 7.01(c) which may notbe waived) at or prior to the Closing, of each of the following conditions:

 

### (a)          Representations,Warranties and Covenants.  Therepresentations and warranties of the Purchaser contained in this Agreementshall have been true and correct when made and shall be true and correct as ofthe Closing, with the same force and effect as if made as of the Closing Date,other than such representations and warranties as are made as of another date,which shall be true and correct as of such date, and the covenants andagreements contained in this Agreement to be complied with by the Purchaser onor before the Closing shall have been complied with in all material respects.

###  

### (b)         No Order.  No Governmental Order (other than aGovernmental Order relating to the matters set forth in (c)(i) below)shall be threatened or be in force and effect against the Purchaser restrainingor materially and adversely altering the transactions contemplated by thisAgreement.

###  

### (c)          Consentsand Approvals.  The Purchaser, theSeller and the Company, as applicable, shall have received all authorizations,consents, orders and approvals from all Governmental Authorities and officialsand the required third party under the Loan Documents necessary or desirable toeffect the transactions contemplated by this Agreement, including, withoutlimitation (i) the approval, or extension thereof, as the case

 

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### maybe, by the FCC of application to transfer control of the Company to thePurchaser (including approval of foreign ownership), and such FCC approval isnot subject to further  review,modification, appeal, revocation or suspension and (ii) if applicable, thePurchaser and the Seller shall have received notice from the United StatesDepartment of Justice and the FTC that such governmental entities haveterminated the applicable notification period or such notification period shallhave expired without requirements for the sale or disposition of assets orlimiting the Purchaser or the Company in the conduct of its business.”

###  

### (d)         TransactionDocuments.  Each of the TransactionDocuments shall have been entered into by the applicable parties thereto (otherthan the Seller) and each shall be in full force and effect.  The Purchaser shall not have taken or failedto take any actions which constitutes, or with the passage of time or noticewould constitute, a material breach of any of the Transaction Documents, whichmaterial breach (i) is not capable of being cured or (ii) has notbeen cured within thirty (30) days after the Purchaser receives written noticeof such breach from the Seller.

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### (e)          LongTerm Financing.  The Company shallhave entered into the Long Term Financing (as such term is defined inSettlement Agreement and Mutual Release) and borrowings thereunder have beenmade available to the Company.”

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## Section 2.11             Amendmentof Section 7.02.  Section 7.02of the Agreement (Conditions to Obligations of the Purchaser) is hereby amendedand restated in its entirety to read as follows:

##  

“The option ofthe Purchaser to consummate the transactions contemplated by this Agreementshall be subject to the fulfillment or waiver by the Purchaser at or prior tothe Pre-Closing Date at or prior to the Closing Date and of each of thefollowing conditions:

 

### (a)          Representations,Warranties and Covenants.  Therepresentations and warranties contained in Articles III and IV contained inthis Agreement shall have been true and correct when made and shall be true andcorrect as of the Closing, with the same force and effect as if made as of theClosing Date, other than such representations and warranties as are made as ofanother date, which shall be true and correct as of such date, and thecovenants and agreements contained in this Agreement to be complied with by theSeller on or before the Closing shall have been complied with in all materialrespects.

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### (b)         No Order.  No Governmental Order (other than aGovernmental Order relating to the matters set forth in (c)(i) below)shall be threatened or be in force and effect against the Seller, Syncom andany member of the Fleet Syndicate, or the Company, restraining or materiallyand adversely altering the transactions contemplated hereby that are thesubject of the Closing.

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### (c)          Consentsand Approvals.  The Purchaser, theSeller and the Company, as applicable, shall have received all authorizations,consents, orders

 

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### andapprovals from all Governmental Authorities and officials and the requiredthird party under the Loan Documents necessary or desirable to effect thetransactions contemplated by this Agreement, including, without limitation (i) theapproval, or extension thereof, as the case may be, by the FCC of applicationto transfer control of the Company to the Purchaser (including approval offoreign ownership), and such FCC approval is not subject to further  review, modification, appeal, revocation orsuspension and (ii) if applicable, the Purchaser and the Seller shall havereceived notice from the United States Department of Justice and the FTC thatsuch governmental entities have terminated the applicable notification periodor such notification period shall have expired without requirements for thesale or disposition of assets or limiting the Purchaser or the Company in theconduct of its business.

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### (d)         Ownershipof Fully Diluted Shares. All outstanding warrants and options to purchaseShares shall have been converted into Shares; provided, however,that any rights of any officers, directors or employees of the Company withrespect to any Shares shall have been waived without payment therefore or anyobligation to make a payment therefore by the Company and without any violationof Law.  All of the Seller Shares shallbe owned by the Seller.

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### (e)          Indebtedness,Waivers and Extensions.  With respectto any Indebtedness of the Company owed to the Seller or any of its Affiliates,the Company shall have obtained (i) waivers of any operating or financialcovenant with which the Company is not in compliance and (ii) an extensionof the due date of any principal amount and capitalized interest of suchIndebtedness to a date not prior to the sixtieth (60th) dayfollowing the Closing Date.

###  

### (f)            TransactionDocuments.  Each of the TransactionDocuments shall have been entered into by the applicable parties thereto (otherthan the Purchaser) and each shall be in full force and effect.  Neither the Company nor the Seller shall havetaken or failed to take any actions which constitutes, or with the passage oftime or notice would constitute, a material breach of any of the TransactionDocuments, which material breach (i) is not capable of being cured or (ii) hasnot been cured within thirty (30) days after the Company and the Seller havereceived written notice of such breach from the Seller.

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### (g)         Long TermFinancing.  The Company shall haveentered into the Long Term Financing (as such term is defined in SettlementAgreement and Mutual Release) and borrowings thereunder have been madeavailable to the Company.”

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## Section 2.12             Amendmentand Restatement of Section 9.01. Section 9.01(a) of the Agreement (Termination) is herebyamended and restated in its entirety to read as follows:

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“by either the Seller orthe Purchaser if (i) the Purchase Notice shall not have been sent by thelater of (x) the forty second (42nd) month following the date ofthis Amendment or (y) ten days after a Sale Termination in accordance with theSale Agreement, if there has been a Sale Notice in accordance with suchagreement within

 

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the thirty seventh (37th)month following the date of this Amendment; or (ii) any regulatoryauthority has denied approval of the purchase of the Seller Shares and suchdenial has become final and unappealable or has approved the purchase of theSeller Shares subject to the conditions that, in the sole judgment of thePurchaser would restrict it or its affiliates in their respective spheres ofoperations and business activities after the Effective Date; provided, however,that the right to terminate this Agreement under this Section 9.01(a) shallnot be available to any party whose failure to fulfill any obligation underthis Agreement shall have been the cause of, or shall have resulted in, thefailure of the Closing to occur on or prior to such date.”

 

## Section 2.13             Amendmentof Section 9.01.  Section 9.01is hereby amended by adding the following subsection (e) at the endthereof:

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“This Agreement shallautomatically terminate in the event (i) Telefónica S.A. guaranteeobligations set forth in Section 10.5 of the Settlement Agreement and (ii) TelefónicaS.A. guarantee obligations set forth in Exhibit K of the SettlementAgreement shall cease and be of no further force and effect.”

 

## Section 2.14             Amendmentand Restatement of Section 10.05. Section 10.05 of the Agreement (Entire Agreement) is hereby amendedand restated in its entirety to read as follows:

##  

“This Agreementconstitutes the entire agreement of the parties hereto with respect to thesubject matter hereof and supersede all prior agreements and undertakings, bothwritten and oral, between or among the Seller, the Company and the Purchaserwith respect to the subject matter hereof and thereof.”

 

## Section 2.15             Amendmentand Restatement of Section 10.09. Section 10.09 of the Agreement (Governing Law) is hereby amendedand 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 2.16             Amendmentand Restatement of Section 10.10.  Section 10.10of the Agreement (Arbitration) is hereby amended and restated in itsentirety to read as follows:

##  

“(a)                            If aDispute is not settled within thirty (30) days after the notice is given to theother parties seeking representative consideration of a Dispute, such Disputeshall be submitted for resolution to the American Arbitration Association inaccordance with the International Arbitration Rules of the American

 

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Arbitration Association.A party wishing to submit a Dispute to arbitration shall give written notice tosuch effect to the other parties hereto. The arbitration shall be resolved by a three-person arbitration panel.”

 

## Section 2.17             Amendmentand Restatement of Section 10.11.  Section 10.11of the Agreement (Waiver of Jury Trial) is hereby amended and restated in itsentirety to read as follows:

##  

“Intentionally leftblank.”

 

## Section 2.18             Amendmentto Article X.  Article X ofthe Agreement is hereby amended by adding the following Section 10.14(Confidentiality) at the end thereof:

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“Theterms and conditions ofthis Agreement, and all matters relating thereto, shall remain confidentialbetween the Parties and shall not be disclosed to any Person except:  (i) to the Parties and their respectiveofficers, directors, employees, representatives, counsel, auditors and otherprofessionals who need to know such information for purposes of conductingtheir ordinary course of business; (ii) to any Person as required byoperation of law; or (iii) to any Person agreed to by the Parties, inwriting.  To the extent that a Party isrequired or purportedly required to disclose all or any terms of this Agreementpursuant to subparagraph (ii) above, such Party shall immediately givewritten notice to the other Parties, and the Party seeking disclosure shall, ifso requested by any other Party, use its best efforts to obtain a protectiveorder from the court or a written guarantee of confidentiality from any Personto whom the terms are to be disclosed to limit, in advance, the disseminationand disclosure of this Agreement and its terms.”

 

**ARTICLE III**

# **MISCELLANEOUS**

 

## Section 3.1                   Ratification;Entire Agreement.  This Amendment shallnot be deemed to be an amendment to or effect any terms or provisions of theAgreement other than those amended hereby and is only intended to amend, alteror modify the Agreement as expressly stated herein.  Except as amended hereby, the Agreement remainsin effect, enforceable against each of the Parties, and is hereby ratified andacknowledged by each of the Parties. This Agreement, as amended by this Amendment, constitutes the entireagreement among all the parties hereto and supersedes all prior agreements andunderstandings, oral and written, among all the parties hereto with respect tothe 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 executethis Amendment by facsimile signature, and the other Parties will be entitledto rely on such facsimile signature as conclusive evidence that this Amendmenthas been duly executed by such Party.

 

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## Section 3.3                   Governing Law.  The substantive rights and obligations of theparties arising out of, in connection with or ancillary to this Amendment 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.

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## 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.

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

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*[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.

 
| ** ** | TEM PUERTO RICO                  |
|------------|----------------------------------|
|       |                             |
|       |                             |
|       | By:                              |   |   |
|       |                             | Name: Francisco  Martinez Davis |
|       |                             | Title: Director |
|       |                             |
|       |                             |
|       | By:                              |   |   |
|       |                             | Name: Juan Ramon  Balcells |
|       |                             | Title: Director |
|       |                             |
|       |                             |
|       | CLEARCOMM, L.P.                  |
|       |                             |
|       |                             |
|       | By:                              |   |   |
|       |                             | Name: Lawrence  Odell Peck |
|       |                             | Title: |
|       |                             |
|       |                             |
|       | NEWCOMM WIRELESS  SERVICES, INC. |
|       |                             |
|       |                             |
|       | By:                              |   |   |
|       |                             | Name: Javier O.  Lamoso |
|       |                             | Title |

 

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