Exhibit 10.3
NOTE PURCHASE OPTION
AGREEMENT
THIS NOTE PURCHASE
OPTION AGREEMENT (“ Agreement ”) is executed and
delivered as of this 1 st day of June, 2009, by and among
MasTec North America, Inc. (“ Maker ”), Jon L.
Wanzek, as Sellers’ Representative (“ Wanzek
”), and the Wanzek Family Foundation (the “
Foundation ”, and together with Wanzek, the “
Holder ”). Capitalized terms used and not otherwise
defined herein, shall have the respective meanings ascribed thereto
in the Stock Purchase Agreement dated October 4, 2008, by and
among Maker, MasTec, Inc., a Florida corporation, Wanzek
Construction, Inc., a North Dakota corporation, Trust B under the
Amended and Restated Living Trust of Leo Wanzek dated
February 2, 2000, a North Dakota trust, Janet L. Wanzek, a
North Dakota resident, Wanzek Construction 2008 Irrevocable Trust,
a North Dakota trust, Jon L. Wanzek, a North Dakota resident, Jon
L. Wanzek 2008 Two-Year Irrevocable Annuity Trust, a North Dakota
trust, and Wanzek, as Sellers’ Representative, subsequently
amended by that certain First Amendment to Stock Purchase Agreement
dated December 2, 2008, that certain Second Amendment to Stock
Purchase Agreement dated December 16, 2008, and that certain
Third Amendment to Stock Purchase Agreement (the “ Third
Amendment ”) dated as of the date hereof (the “
Purchase Agreement ”).
WHEREAS, pursuant to the Purchase
Agreement, the Maker (i) issued to Wanzek a Negotiable
Subordinated Convertible Note due December 16, 2013 in the
aggregate principal amount of $47,500,000, and (ii) issued to
the Foundation a Negotiable Subordinated Convertible Note due
December 16, 2013 in the aggregate principal amount of
$7,500,000 (together, the “ Notes ”);
WHEREAS, Maker wishes to obtain from
Holder an option to purchase the Notes from Holder and Holder
wishes to grant Maker an option to purchase the Notes from Holder
(the “ Option ”); and
WHEREAS, as consideration for such
Option, concurrently with the execution of this Agreement, the
Parties are entering into the Third Amendment, substantially in the
form of Exhibit A .
NOW, THEREFORE, for good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as
follows:
1. Option to
Purchase Notes . Subject to the terms and conditions of this
Agreement, the Holder hereby grants the Maker the Option from the
date hereof through 11:59 PM Fargo, North Dakota time on the
60 th day following the date hereof
(the “ Option Period ”) to purchase from Holder
all or any portion of the Notes (with new Notes to be executed and
delivered if less than the whole of either Note is purchased) for
the Note Purchase Price (as defined below). Maker may exercise the
Option any time during the Option Period by delivering written
notice to Holder of its intent to exercise the Option to the
address for Wanzek set forth in Section 15 .
2. Note Purchase Price .
“ Note Purchase Price ” means the principal
amount of the Notes or any portion purchased plus all interest
accrued under the Notes through the Closing (as hereinafter
defined).
3. Closing . If the Option is
exercised during the Option Period, then the parties shall
consummate the purchase at a closing (the “ Closing
”) no later than 10 Business Days following the end of the
Option Period at the offices of Maker. At least five
(5) Business Days prior to the Closing, the Maker shall notify
Holder of the date and time of the Closing. At the Closing, the
Holder shall sell, transfer and deliver to Maker full right, title
and interest in and to the portion of the Notes purchased, free and
clear of all Encumbrances and shall deliver to Maker the original
Notes (or one Note if all or less than one Note is being
repurchased) duly endorsed for transfer or accompanied by note
powers duly endorsed. Simultaneously with the delivery of the Note
or Notes, Maker shall deliver to Holder the Note Purchase Price by
wire transfer of immediately funds to the bank and account
designated by Wanzek and, to the extent a partial Note is
repurchased, a replacement Note for the portion of the Note not
repurchased.
4. No Conversion of Notes During
Option Period or Prior to Closing . During the Option Period,
and if the Option is exercised, during the period prior to Closing,
Holder shall not exercise the conversion rights set forth in
Section 2 of the Notes or otherwise cause the conversion of
the Notes into shares of Guarantor’s common stock; provided
that to the extent the Option is exercised for less than the whole
of the Notes, Holder may convert during the period between exercise
of the Option and Closing any portion of the Notes as to which the
Option was not exercised if otherwise permitted by the
Notes.
5. No Transfer or Sale of Notes
During Option Period or Prior to Closing . During the Option
Period, and if the Option is exercised, during the period prior to
Closing, Holder shall not sell, gift, mortgage, pledge, exchange,
assign or otherwise dispose or transfer, including a disposition
under judicial order, legal process, execution, attachment, or
enforcement of an Encumbrance (“ Transfer ”) the
Notes; provided that to the extent the Option is exercised for less
than the whole of the Notes, Holder may Transfer during the period
between exercise of the Option and Closing any portion of the Notes
as to which the Option was not exercised if otherwise permitted by
the Notes and the Purchase Agreement.
6. Interest Under the Notes .
If Maker does not exercise the Option for the whole of the Notes,
then all interest accrued through April 16, 2009 on the
portion of the Notes not purchased shall be paid by Maker on the
first Business Day immediately following the end of the Option
Period (the “ Accrued Interest Payment Date ”),
and all interest accrued on the portion of the Notes not purchased
from April 17, 2009 through the Accrued Interest Payment Date
will be payable on August 16, 2009. All payments required to
be made under the Notes, whether due before or after the date
hereof, are suspended and no default or Event of Default (as
defined in the Notes) has occurred or shall occur under the Notes
for the failure to make such payments. Following (x) the end
of the Option Period, if the Option is not exercised, or
(y) the Closing, if the Option is exercised (but solely if
less than the whole of the Notes is purchased), interest shall
accrue at the rate provided in the Notes and interest payments
shall resume under the Notes at the times provided
therein.
7. Representations and
Warranties . Holder represents to Maker that (i) this
Agreement has been duly authorized (if necessary) and executed and
delivered by or on behalf of such Holder, and this Agreement
constitutes a valid and binding agreement of Holder,
enforceable in accordance with its
res
