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Exhibit 1.1
NEXTEL INTERNATIONAL, INC.
PLACEMENT AGREEMENT
March 9, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Chase Securities Inc.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
NEXTEL INTERNATIONAL, INC., a Washington corporation (the
"Company"), proposes to issue and sell to the several purchasers named in
Schedule I hereto (the "Placement Agents") $730,000,000 principal amount at
maturity ($400,879,500 initial accreted value) of its 12_% Senior Discount Notes
due 2008 (the "Securities") to be issued pursuant to the provisions of an
Indenture (the "Indenture") dated as of the Closing Date (as defined below)
between the Company and The Bank of New York, as trustee (the "Trustee").
The Securities will be offered without being registered under
the Securities Act of 1933, as amended (the "Securities Act"), to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act, in offshore transactions in reliance on
Regulation S under the Securities Act ("Regulation S") and to institutional
accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) that deliver a letter in the form annexed to the Final
Memorandum (as defined below).
The Placement Agents and their direct and indirect transferees
will be entitled to the benefits of a Registration Rights Agreement, dated the
date hereof and to be substantially in the form attached hereto as Exhibit A
(the "Registration Rights Agreement").
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum (the "Preliminary Memorandum") and
will prepare a final offering memorandum (the "Final Memorandum" and, with the
Preliminary Memorandum, each a "Memorandum") including or incorporating by
reference a description of the terms of the Securities, the terms of the
offering and a description of the Company. As used herein, the term "Memorandum"
shall include in each case the documents incorporated by reference therein. The
terms "supplement", "amendment" and "amend" as used herein with respect to a
Memorandum
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shall include all documents deemed to be incorporated by reference in the
Preliminary Memorandum or Final Memorandum that are filed subsequent to the date
of such Memorandum with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, you that:
(a) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in either Memorandum
complied us to form or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the Commission
thereunder and (ii) the Preliminary Memorandum does not contain and the Final
Memorandum, in the form used by the Placement Agents to confirm sales and on the
Closing Date (as defined below), will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
paragraph do not apply to statements or omissions in either Memorandum based
upon information relating to any Placement Agent furnished to the Company in
writing by such Placement Agent through you expressly for use therein.
(b) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in each Memorandum and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries listed on Schedule II hereto (each a "Subsidiary" and collectively,
the "Subsidiaries"), taken as a whole.
(c) Each Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation (to the extent that such
jurisdiction recognizes the legal concept of good standing) and has the
corporate power and authority to own its property and to conduct its business as
described in each Memorandum and is duly qualified to transact business and is
in good standing in each jurisdiction (to the extent that such jurisdiction
recognizes the legal concept of good standing) in which the conduct of its
business or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and the Subsidiaries,
taken as a whole.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
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(e) The Securities have been duly authorized by the
Company and, when executed, authenticated and delivered to and paid for by the
Placement Agents in accordance with the terms of this Agreement, will (x) be
valid and binding obligations of the Company enforceable in accordance with
their terms, except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws relating to or affecting creditors'
rights generally and (B) rights of acceleration, if applicable, and the
availability of equitable remedies may be limited by equitable principles and
(y) be entitled to the benefits of the Indenture and the Registration Rights
Agreement.
(f) The Indenture has been duly authorized by the Company
and, when executed and delivered by the Company, will be a valid and binding
agreement of the Company, enforceable in accordance with its terms except as (x)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws relating to or affecting creditors' rights generally, (y) rights of
acceleration, if applicable, and the availability of equitable remedies may be
limited by equitable principles and (z) rights to indemnification and
contribution may be limited by public policy.
(g) The Registration Rights Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable in accordance with its terms except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
relating to or affecting creditors' rights generally, (y) rights of
acceleration, if applicable, and the availability of equitable remedies may be
limited by equitable principles. and (z) rights to indemnification and
contribution may be limited by public policy.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Registration Rights Agreement and the Securities (collectively,
the "Transaction Documents") will not contravene (i) any provision of applicable
law, (ii) the certificate of incorporation or by-laws or partnership agreement,
as the case may be, of the Company or (iii) any agreement or other instrument
binding upon the Company or any of the Subsidiaries or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Company or any Subsidiary, except, with respect to clause (i) and (iii), to the
extent that any contravention would not have a material adverse effect on the
Company and the Subsidiaries, taken as a whole, and no permit, license, consent,
approval, authorization or order of, or filing, declaration or qualification
with, any governmental body or agency is required for the performance by the
Company of its obligations under the Transaction Documents, except (x) such as
may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities, (y) such as may be
required by federal and state securities laws with respect to the Company's
obligations under the Registration Rights Agreement and (z) as to which the
failure to so obtain would not have a material adverse effect on the ability of
the Company to perform its obligations under the Transaction Documents.
(i) There has not occurred any material adverse change,
or any development
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involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and the
Subsidiaries, taken as a whole, from that set forth in the Final Memorandum.
Furthermore, (1) the Company and the Subsidiaries have not incurred any
material liability or obligation, direct or contingent, nor entered into any
material transaction not in the ordinary course of business; (2) the Company
has not purchased any of its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on its capital stock
other than ordinary and customary dividends; and (3) there has not been any
material change in the capital stock, short-term debt or long-term debt of the
Company and the Subsidiaries taken as a whole, except in each case as described
in the Final Memorandum.
(j) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened to which the Company or
any of the Subsidiaries is a party or to which any of the properties of the
Company or any of the Subsidiaries is subject other than proceedings accurately
described in all material respects in each Memorandum and proceedings that are
not reasonably likely to have a material adverse effect on the Company and the
Subsidiaries, taken as a whole, or on the power or ability of the Company to
perform its obligations under the Transaction Documents or to consummate the
transactions contemplated by the Final Memorandum.
(k) Neither the Company nor any affiliate (as defined in
Rule 501(b) of Regulation D under the Securities Act, an "Affiliate") of the
Company has directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any security (as
defined in the Securities Act) which is or will be integrated with the sale of
the Securities in a manner that would require the registration under the
Securities Act of the Securities or (ii) engaged in any form of general
solicitation or general advertising in connection with the offering of the
Securities (as those terms are used in Regulation D under the Securities Act) or
in any manner involving a public offering within the meaning of Section 4(2) of
the Securities Act.
(l) The Company is not, and after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Final Memorandum, will not be an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended. The
Company is not a "public utility holding company," as such term is defined in
the Public Utility Holding Company Act of 1935, as amended.
(m) It is not necessary in connection with the offer,
sale and delivery of the Securities to the Placement Agents in the manner
contemplated by this Agreement to register the Securities under the Securities
Act or to qualify the Indenture under the Trust Indenture Act of 1939, as
amended.
(n) Except as described in each Memorandum, each of the
Company and the Subsidiaries (i) has all necessary licenses, consents,
authorizations, approvals, orders, certificates
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and permits of and from, and has made all declarations and filings with, all
federal, state and local and foreign governmental, administrative or regulatory
authorities, all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in or contemplated by each
Memorandum, including providing digital enhanced specialized mobile radio
services, except to the extent that the failure to obtain such licenses,
consents, authorizations, approvals, orders, certificates and permits or make
such declarations and filings would not have a material adverse effect on the
Company and the Subsidiaries, taken as a whole and (ii) has not received any
notice of proceedings relating to the violation, revocation or modification of
any such license, consent, authorization, approval, order, certificate or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to result in a
material adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and the Subsidiaries, taken as
a whole.
(o) The Company and the Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants, including all such laws and regulations concerning electromagnetic
radio frequency emissions ("Environmental Laws"); (ii) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals, singly or in
the aggregate, would not be reasonably likely to have a material adverse effect
on the Company and the Subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties) which
would, singly or in the aggregate, be reasonably likely to have a material
adverse effect on the Company and the Subsidiaries, taken as a whole.
(q) None of the Company, its Affiliates or any person
acting on its or their behalf (other than the Placement Agents) has engaged or
will engage in any directed selling efforts (as that term is defined in
Regulation S) with respect to the Securities and the Company and its Affiliates
and any person acting on its or their behalf (other than the Placement Agents)
have complied and will comply with the offering restrictions requirement of
Regulation S.
(r) The Securities satisfy the requirements set forth in
Rule 144A(d)(3) under the Securities Act.
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(s) The Company and each of the Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with U.S. GAAP and
to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(t) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them which is material to the business
of the Company and the Subsidiaries, taken as a whole, in each case free and
clear of all liens, encumbrances and defects, except such as are described in
each Memorandum or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such property
by the Company and the Subsidiaries; and any real property and buildings held
under lease by the Company and the Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not materially interfere with the use made and proposed to be made of such
property and buildings by the Company and the Subsidiaries, in each case except
as described in or contemplated by each Memorandum.
(u) The Company and the Subsidiaries own or possess, or
can acquire on reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names currently employed by
them in connection with the business now operated by them, and neither the
Company nor any of the Subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would be reasonably likely to have a material adverse effect
on the Company and the Subsidiaries, taken as a whole.
(v) No material labor dispute with the employees of the
Company or any of the Subsidiaries exists, except as described in or
contemplated by each Memorandum, or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or imminent
labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that would be reasonably likely to have a material
adverse effect on the Company and the Subsidiaries, taken as a whole.
(w) The Company and each of the Subsidiaries are insured
against such losses and risks and in such amounts as are customary in the
businesses in which they are engaged; the Company has no reason to believe that
either it or any Subsidiary will not be able to renew its existing insurance
coverage as and when such coverage expires or obtain similar coverage from
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similar insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the Company and the Subsidiaries,
taken as a whole.
(x) The pro forma financial statements included in each
Memorandum present fairly the information shown therein and, in the opinion of
the Company, the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein.
(y) None of the Company or any of the Subsidiaries has
committed any act in violation of the Foreign Corrupt Practices Act, as amended,
that would materially and adversely affect the Company and the Subsidiaries,
taken as a whole.
2. Offering. You have advised the Company that the
Placement Agents will make an offering of the Securities purchased by the
Placement Agents hereunder on the terms set forth in the Final Memorandum as
soon as practicable after this Agreement is entered into as in your judgment is
advisable.
3. Agreements to Sell and Purchase; Payment and
Delivery. The Company hereby agrees to sell to the several Placement Agents, and
each Placement Agent, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from the Company the respective principal
amount at maturity of Securities set forth in Schedule I hereto opposite its
name at a purchase price of 96.875% of the principal amount at maturity thereof
plus accrued amortization of original issue discount on the Securities, if any,
from March 12, 1998 to the date of payment and delivery.
The Company hereby agrees that, without the prior written
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Placement Agents,
it will not, during the period beginning on the date hereof and continuing to
and including the Closing Date, offer, sell, contract to sell or otherwise
dispose of any debt of the Company or warrants to purchase debt of the Company
substantially similar to the Securities, other than (i) the sale of the
Securities under this Agreement and (ii) commercial paper issued in the ordinary
course of business.
Payment for the Securities shall be made against delivery of
the Securities for the respective accounts of the several Placement Agents at a
closing (the "Closing") to be held at the office of Shearman & Sterling, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 9:00 A.M., local time, on March 12,
1998, or at such other time on the same or such other date, not later than March
26, 1998, as shall be designated in writing by you. The time and date of such
payment are herein referred to as the "Closing Date." Payment for the Securities
shall be made to the Company in federal funds or other funds immediately
available in New York City.
Certificates for the Securities shall be in definitive form or
global form, as specified by you, and registered in such names and in such
denominations as you shall request in writing not
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later than one full business day prior to the Closing Date. The certificates
evidencing the Securities shall be delivered to you on the Closing Date for the
respective accounts of the several Placement Agents, with any transfer taxes
payable in connection with the transfer of the Securities to the Placement
Agents duly paid, against payment of the purchase price therefor.
4. Conditions to Closing. The several obligations of the
Placement Agents to purchase and pay for the Securities on the Closing Date
will be subject to the following conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded
any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations, of the
Company and the Subsidiaries, taken as a whole, from that set forth in
the Final Memorandum (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Securities on the terms and in the manner
contemplated in the Final Memorandum.
(b) The representations and warranties contained in this
Agreement shall be true and correct as of the Closing Date and that the Company
shall have complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before the
Closing Date. You shall have received on the Closing Date a certificate, dated
the Closing Date and signed by the Chief Financial Officer and the General
Counsel of the Company, to the effect set forth in the immediately preceding
sentence and set forth in clause (a)(i) above.
The officer signing and delivering such certificate may rely
upon his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇ Coie, Washington counsel to the Company, dated the Closing
Date, to the effect set forth in Exhibit B.
(d) You shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the Company, dated the
Closing Date, to the effect set forth in
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Exhibit C.
(e) You shall have received on the Closing Date opinions
of foreign counsel to the Company in Brazil, Argentina, Mexico, Philippines and,
Peru, dated the Closing Date, each to the effect set forth in Exhibit D.
(f) You shall have received on the Closing Date opinions
of foreign counsel to the Company in the Cayman Islands, dated the Closing
Date, to the effect set forth in Exhibit E.
(g) You shall have received on the Closing Date opinions
of foreign counsel to the Company in China, dated the Closing Date, to the
effect set forth in Exhibit F.
(h) You shall have received on the Closing Date an
opinion of Venture Law Group, special counsel to the Company, dated the Closing
Date, to the effect set forth in Exhibit G.
The opinions of ▇▇▇▇▇▇▇ Coie, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, M. & ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, Bufete ▇▇▇▇▇ y ▇▇▇▇▇▇▇, S.C., ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ y
▇▇▇▇▇▇▇▇ ▇▇▇, S.C., ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ & San ▇▇▇▇, Estudio ▇▇▇▇
Echecopar ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Pu Dong Law Office and Venture Law Group
shall be rendered to you at the request of the Company and shall so state
therein.
(i) You shall have received on the Closing Date an
opinion of Shearman & Sterling, counsel for the Placement Agents, dated the
Closing Date, in form and substance satisfactory to you.
(j) You shall have received on each of the date hereof
and the Closing Date a letter, dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to you, from Deloitte & Touche
LLP, the Company's independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Final Memorandum; provided that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier than the
date hereof.
(k) You shall have received on the date hereof a letter,
dated the date hereof, in form and substance satisfactory to you, from KPMG Peat
Marwick LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Final Memorandum.
(l) You shall have received evidence of the transfer to
the Company of securities representing 6,777,778 shares of common stock of
Clearnet Communications Inc., as
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described in the Final Memorandum.
(m) The non-compete agreement (the "Non-Compete
Agreement") between the Company and Nextel Communications, Inc. shall be in full
force and effect on the Closing Date and notice of the proposed amendment to the
Non-Compete Agreement to extend its benefits to the holders of the Securities as
described in the Final Memorandum shall have been provided to The Bank of New
York, as trustee and warrant agent in accordance with the terms of the
Non-Compete Agreement.
(n) You shall have received such other certificates and
documents as you or your counsel may reasonably request.
5. Covenants of the Company. In further consideration of
the agreements of the Placement Agents contained in this Agreement, the Company
covenants with each Placement Agent as follows:
(a) To furnish to you in New York City, without charge,
during the period mentioned in paragraph (c) of this Section 5, as many copies
of the Final Memorandum, any documents incorporated by reference therein and any
supplements and amendments thereto as you may reasonably request and to use its
reasonable best efforts to deliver such copies to you by 10:00 a.m. (New York
City time) on the business day next succeeding the date of this Agreement.
(b) Before amending or supplementing either Memorandum,
to furnish to you a copy of each such proposed amendment or supplement and not
to use any such proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and
prior to the date on which all of the Securities shall have been sold by the
Placement Agents, any event shall occur or condition exist as a result of which
it is necessary in your judgment to amend or supplement the Final Memorandum in
order to make the statements therein, in the light of the circumstances when the
Final Memorandum is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Placement Agents, it is necessary to amend or
supplement the Final Memorandum to comply with applicable law, forthwith to
prepare and furnish, at its own expense, to the Placement Agents, either
amendments or supplements to the Final Memorandum so that the statements in the
Final Memorandum as so amended or supplemented will not, in the light of the
circumstances when the Final Memorandum is delivered to a purchaser, be
misleading or so that the Final Memorandum, as so amended or supplemented, will
comply in all material respects with applicable law.
(d) To endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
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qualified or to take any action which would subject it to service or process in
suits, other than those arising out of the offering or sale of the Securities,
in any jurisdiction where it is not now so subject.
(e) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company's
counsel and the Company's accountants in connection with the issuance and sale
of the Securities and all other fees or expenses in connection with the
preparation of each Memorandum and all amendments and supplements thereto,
including all printing costs associated therewith, and the delivering of copies
thereof to the Placement Agents, in the quantities herein above specified, (ii)
all costs and expenses related to the transfer and delivery of the Securities to
the Placement Agents, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or legal investment
memorandum in connection with the offer and sale of the Securities under state
securities laws and all expenses in connection with the qualification of the
Securities for offer and sale under state securities laws as provided in Section
5(d) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Placement Agents in connection with such qualification and in
connection with the Blue Sky or legal investment memorandum, (iv) any fees
charged by rating agencies for the rating of the Securities, (v) all document
production charges and expenses of counsel to the Placement Agents (but not
including their fees for professional services) in connection with the
preparation of this Agreement, (vi) the fees and expenses, if any, incurred in
connection with the admission of the Securities for trading in PORTAL or any
appropriate market system, (vii) the costs and charges of the Trustee, (viii)
the cost of the preparation, issuance and delivery of the Securities, (ix) the
costs and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering of the
Securities, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, and (x) all
other costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this Section. It
is understood, however, that except as provided in this Section, Section 7, and
the last paragraph of Section 9, the Placement Agents will pay all of their
costs and expenses, including fees and disbursements of its counsel, transfer
taxes payable on resale of any of the Securities by it and any advertising
expenses connected with any offers they make.
(f) Neither the Company nor any Affiliate will sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which could be integrated with the
sale of the Securities in a manner which would require the registration under
the Securities Act of the Securities.
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12
(g) Not to solicit any offer to buy or offer or sell the
Securities by means of any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the
Securities Act except as contemplated by the Registration Rights Agreement.
(h) While any of the Securities remain outstanding, to
make available, upon request, to any seller of such Securities the information
specified in Rule 144A(d)(4) under the Securities Act, unless the Company is
then subject to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act").
(i) Except as contemplated by the Registration Rights
Agreement, none of the Company, its Affiliates or any person acting on its or
their behalf (other than the Placement Agents) will engage in any directed
selling efforts (as that term is defined in Regulation S) with respect to the
Securities and the Company and its Affiliates and each person acting on its or
their behalf (other than the Placement Agents) will comply with the offering
restrictions requirement of Regulation S.
(j) The Company will, and will cause the Trustee to,
refuse to register any transfer of the Notes sold pursuant to Regulation S
unless such transfer is made in accordance with the provisions of Regulation S
and the Indenture.
(k) To use its best efforts to permit the Securities to
be designated PORTAL securities in accordance with the rules and regulations
adopted by the National Association of Securities Dealers, Inc. relating to
trading in the PORTAL Market.
(l) To use the net proceeds received by it from the sale
of the Securities pursuant to this Agreement substantially in the manner
specified and to the extent set forth in the Final Memorandum under the caption
"Use of Proceeds."
6. Offering of Securities; Restrictions on Transfer. (a)
Each Placement Agent, severally and not jointly, represents and warrants that
such Placement Agent is a qualified institutional buyer as defined in Rule 144A
under the Securities Act (a "QIB"). Each Placement Agent, severally and not
jointly, agrees with the Company that (i) it will not solicit offers for, or
offer or sell, such Securities by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities Act)
or in any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act and (ii) it will solicit offers for such Securities only
from, and will offer such Securities only to, persons that it reasonably
believes to be (A) in the case of offers inside the United States, (x) QIBs or
(y) other institutional accredited investors (as defined in Rule 501(a) (1),
(2), (3) or (7) under the Securities Act) ("institutional accredited investors")
that, prior to their purchase of the Securities, deliver to such Placement Agent
a letter containing the representations and agreements set forth in Annex A to
the Memorandum and (B) in the case of offers outside the United States, to
persons other than
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U.S. persons ("foreign purchasers," which term shall include dealers or other
professional fiduciaries in the United States acting on a discretionary basis
for foreign beneficial owners (other than an estate or trust)) in reliance upon
Regulation S under the Securities Act that, in each case, in purchasing such
Securities are deemed to have represented and agreed as provided in the Final
Memorandum under the caption "Transfer Restrictions."
(b) Each Placement Agent, severally and not jointly,
represents, warrants, and agrees with respect to offers and sales outside the
United States that:
(i) such Placement Agent understands that no action has
been or will be taken in any jurisdiction by the Company that would
permit a public offering of the Securities, or
possession or distribution of either Memorandum or any other offering
or publicity material relating to the Securities, in any country or
jurisdiction where action for that purpose is required;
(ii) such Placement Agent will comply with all applicable
laws and regulations in each jurisdiction in which it acquires, offers,
sells or delivers Securities or has in its possession or distributes
either Memorandum or any such other material, in all cases at its own
expense;
(iii) the Securities have not been registered under the
Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except in
accordance with Rule 144A or Regulation S under the Securities Act or
pursuant to another exemption from the registration requirements of the
Securities Act;
(iv) such Placement Agent has offered the Securities and
will offer and sell the Securities (A) as part of its distribution at
any time and (B) otherwise until 40 days after the Closing Date only in
accordance with Rule 903 of Regulation S or as otherwise permitted in
Section 6(a); accordingly, neither such Placement Agent, its Affiliates
nor any persons acting on its or their behalf have engaged or will
engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Securities, and any such Placement
Agent, its Affiliates and any such persons have complied and will
comply with the offering restrictions requirements of Regulation S;
(v) such Placement Agent has (A) not offered or sold and,
prior to the date six months after the Closing Date, will not offer or
sell any Securities to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995;
(B) complied and will comply with all applicable provisions of the
Financial Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in
relation to the
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Securities in, from or otherwise involving the United Kingdom; and (C)
only issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issue of
the Securities to a person who is of a kind described in Article 11(3)
of the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on;
(vi) such Placement Agent understands that the Securities
have not been and will not be registered under the Securities and
Exchange Law of Japan, and represents that it has not offered or sold,
and agrees not to offer or sell, directly or indirectly, any Securities
in Japan or for the account of any resident thereof except pursuant to
any exemption from the registration requirements of the Securities and
Exchange Law of Japan and otherwise in compliance with applicable
provisions of Japanese law; and
(vii) such Placement Agent agrees that, at or prior to
confirmation of sales of the Securities, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been
registered under the U.S. Securities Act of 1933 (the
"Securities Act") and may not be offered and sold within the
United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the closing date, except in
either case in accordance with Regulation S (or Rule 144A, if
available) under the Securities Act. Terms used above have the
meaning given to them by Regulation S."
Terms used in this Section 6(b) have the meanings given to them by Regulation S.
7. Indemnity and Contribution. (a) The Company agrees to
indemnify and hold harmless each Placement Agent, and each person, if any, who
controls any Placement Agent within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, or is under common control
with, or is controlled by, such Placement Agent, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Placement Agent or any such
controlling or affiliated person in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in either Memorandum (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
15
15
relating to any Placement Agent furnished to the Company in writing by such
Placement Agent through you expressly for use therein.
(b) Each Placement Agent agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors and officers
and each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Placement Agent, but
only with reference to information relating to such Placement Agent furnished to
the Company in writing by such Placement Agent through you expressly for use in
either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of
parties indemnified pursuant to Section 7(a) and by the Company, in the case of
parties indemnified pursuant to Section 7(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any
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pending or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) To the extent the indemnification provided for in
Section 7(a) or 7(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Placement Agents on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause 7(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 7(d)(i) above but also the relative fault of the Company on the
one hand and of the Placement Agents on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Placement
Agents on the other hand in connection with the offering of the Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by the Placement
Agents in respect thereof bear to the aggregate offering price of the
Securities. The relative fault of the Company on the one hand and of the
Placement Agents on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Placement Agents and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Placement Agents' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amount of Securities they have purchased hereunder,
and not joint.
(e) The Company and the Placement Agents agree that it
would not be just or equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Placement Agents were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in Section 7(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in Section 7(d) shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Placement Agent shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities resold by
it in the initial placement of such Securities were offered to investors exceeds
the amount of any damages that such Placement Agent has otherwise been required
to pay by reason of such untrue or alleged untrue statement or
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17
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not
exclusive and shall not limit the rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained
in this Section 7 and the representations, warranties and other statements of
the Company contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Placement Agent or any person
controlling any Placement Agent or by or on behalf of the Company, its officers
or directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Securities.
8. Termination. This Agreement shall be subject to
termination by notice given by you to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses 8(a)(i) through 8(a)(iv),
such event, singly or together with any other such event, makes it, in your
judgment, impracticable to market the Securities on the terms and in the manner
contemplated in the Final Memorandum.
9. Effectiveness; Defaulting Placement Agents. This
Agreement shall become effective upon the execution and delivery hereof by the
parties hereto.
If, on the Closing Date, any one or more of the Placement
Agents shall fail or refuse to purchase Securities that it or they have agreed
to purchase hereunder on such date, and the aggregate principal amount of
Securities which such defaulting Placement Agent or Placement Agents agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of Securities to be purchased on such date, the other Placement
Agents shall be obligated severally in the proportions that the principal amount
of Securities set forth opposite their respective names in Schedule I bears to
the aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Placement Agents, or in such other proportions as you may
specify, to purchase the Securities which such defaulting Placement Agent or
Placement Agents agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Securities that any Placement
Agent has agreed to
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purchase pursuant to this Agreement be increased pursuant to this Section 9 by
a number in excess of one-ninth of such principal amount of Securities without
the written consent of such Placement Agent. If, on the Closing Date any
Placement Agent or Placement Agents shall fail or refuse to purchase Securities
which it or they have agreed to purchase hereunder on such date and the
aggregate principal amount of Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Securities
to be purchased on such date, and arrangements satisfactory to you and the
Company for the purchase of such Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Placement Agent or of the Company. In any such case, either
you or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any,
in the Final Memorandum or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Placement Agent from liability in respect of any default of such
Placement Agent under this Agreement.
If this Agreement shall be terminated by the Placement Agents,
or any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Placement Agents or such
Placement Agents as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the reasonable
fees and disbursements of their counsel) reasonably incurred by such Placement
Agents in connection with this Agreement or the offering contemplated
hereunder.
10. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
11. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
12. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
19
Very truly yours,
NEXTEL INTERNATIONAL, INC.
By: /s/ Heng-Pin Kiang
----------------------------
Name: Heng-Pin Kiang
Title: Vice President
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
CHASE SECURITIES INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Principal
20
SCHEDULE I
Principal Amount at Maturity
Placement Agent of Securities To Be Purchased
--------------- -----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $401,500,000
Chase Securities Inc. 182,500,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. 146,000,000
-----------
Total.....................................................................$730,000,000
21
SCHEDULE II
List of Subsidiaries
▇▇▇▇▇ International Brazil, Ltd. (Virginia) 81%
Airfone Holdings, Inc. (Delaware) 100%
Nextel S.A. (Brazil) 77%
Air-fone Participacoes e Empreendimentos S/C Ltda. (Brazil) 100%
SOW Comercio e Servicos de Radiofonia Movel Ltda. (Brazil) 100%
Nextel Telecomunicacoes Ltda. (Brazil) 100%
Via Radio-1 Telecomunicacoes Ltda. (Brazil) 100%
Commercial Telecar Ltda. (/Brazil) 100%
Telemovel Servicos Ltda. (Brazil) 100%
ATG - Telecomunicacoes e Comercio Ltda. (Brazil) 100%
Car-Tel Telefonia Movel S/C Ltda. (Brazil) 100%
Comercial Teleservice Ltda. (Brazil) 100%
Radio Telecomunicacoes do Brasil Ltda. (Brazil) 100%
▇▇▇▇▇▇ ▇▇▇▇▇ International Corporation (BVI) 100%
Art Consult International S.A. (BVI) 100%
Nextel International (Services), Ltd. (Delaware) 100%
Nextel International (Japan), Ltd. (Delaware) 100%
Nextel International (Delaware), Ltd. (Delaware) 100%
Nextel International (CanMex), Ltd. (Delaware) 100%
Comunicaciones Nextel de Mexico S.A. de C.V. 100%
Nextel International (Holdings), Ltd. (Cayman Islands) 100%
Nextel International (Argentina) Ltd. (Cayman Islands) 100%
Nextel Argentina S.R.L. (Argentina) 100%
Nextel International (Indonesia) LLC (Cayman Islands) 99%*
Nextel International (Peru) LLC (Cayman Islands) 99%*
Valorcom S.A. (Peru) 70.1%
Nextel International (Philippines) LLC (Cayman Islands) 99%*
TOP Mega Enterprises, Ltd. (Hong Kong) 100%
Infocom Communications Network, Inc. (Philippines) 30%
Nextel International Investment Company (Delaware) 100%
-------------------
* Remaining 1% owned by Nextel International (Delaware), Ltd.
