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EXHIBIT 10.4
SHARE PURCHASE AGREEMENT
BY AND AMONG
NEXTEL INTERNATIONAL, INC.,
NEXTEL INTERNATIONAL (DELAWARE), LTD.,
NEXTEL INTERNATIONAL (HOLDINGS), LTD.,
TELCOM VENTURES, LLC,
WIRELESS VENTURES OF ARGENTINA, L.L.C.
AND
NEXTEL INTERNATIONAL (ARGENTINA), LTD.
DATED AS OF JANUARY 7, 1998
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SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of this 7th day of January, 1998 by and among NEXTEL INTERNATIONAL,
INC., a Washington corporation formerly known as McCaw International, Ltd.
("Nextel"), NEXTEL INTERNATIONAL (DELAWARE), LTD., a Delaware corporation
formerly known as McCaw International (Delaware), Ltd. and wholly owned
subsidiary of Nextel ("Nextel Delaware"), NEXTEL INTERNATIONAL (HOLDINGS), LTD.,
a Cayman Islands company formerly known as McCaw International (Holdings), Ltd.
and a wholly owned subsidiary of Nextel Delaware ("Buyer"), (each of Nextel,
Nextel Delaware and Buyer being referred to collectively as the "Nextel
Parties"), TELCOM VENTURES, LLC, a Delaware limited liability company
("Telcom"), WIRELESS VENTURES OF ARGENTINA, L.L.C., a Delaware limited liability
company and 99% owned subsidiary of Telcom ("Seller"), and NEXTEL INTERNATIONAL
(ARGENTINA), LTD., a Cayman Islands company formerly known as McCaw
International (Argentina), Ltd. (the "JVC").
RECITALS
A. Buyer, certain Affiliates (as defined below) thereof, Telcom and
Seller entered into the Joint Venture Agreement dated as of October 28, 1996, as
amended by Amendment No. 1 thereto dated as of April 25, 1997 (together, the
"Joint Venture Agreement"), whereby each of Buyer and Seller acquired 50%
ownership of the JVC.
B. Buyer, Seller and the JVC entered into the Members Agreement dated
as of May 6, 1997 (the "Members Agreement") in order to set forth certain
understandings with respect to the management of the JVC.
C. Seller desires to sell and Buyer desires to purchase all of the
shares in the share capital of the JVC owned by Seller for the consideration and
on the terms and conditions provided for in this Agreement.
D. Seller owns 50% of one quota of Nextel Argentina S.R.L., an
Argentine limitada ("Nextel Argentina S.R.L."), and 50% of one quota of each of
Buenos Aires Trunking S.R.L., an Argentina limitada ("BATSA"), Communication
Services S.R.L., an Argentina limitada ("CSSA"), and AirLink S.R.L., an
Argentina limitada ("AirLink" and together with Nextel Argentina S.R.L., BATSA
and CSSA, the "JVC Subsidiaries"), and Seller desires to sell and Buyer desires
to purchase such ownership interests in the JVC Subsidiaries for the
consideration and on the terms and conditions provided for in this Agreement.
BATSA, CSSA and AirLink are in the process of merging with and into Nextel
Argentina S.R.L. and registration of such merger (the "Merger") is pending
before the Public Registry of Commerce of the city of Buenos Aires, Argentina
(the "Registry").
NOW, THEREFORE, in consideration of the mutual benefits to be derived
from this Agreement and the representations, warranties, covenants and
agreements hereinafter contained,
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and subject to the satisfaction of the terms and conditions of this Agreement,
the parties hereby represent, warrant, covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" of a Person means any Person which directly or
indirectly Controls, is under common Control with, or is Controlled by, such
Person. For the purposes of this Agreement, neither the JVC nor the JVC
Subsidiaries shall be considered an Affiliate of Seller, Telcom or any of the
Nextel Parties.
"Control" (including, with correlative meanings, the terms
"Controlled by" and "under common Control with"), when used with respect to any
Person or Affiliate, means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
"Person" means any individual, partnership, limited liability
company, joint-stock company, firm, corporation, association, unincorporated
organization, joint venture, trust or other entity.
1.2 OTHER DEFINITIONAL MATTERS.
(a) The words "this Agreement," "hereby," "herein," "hereof,"
"hereunder" and words of similar import refer to this Agreement as a whole and
not to any particular provisions of this Agreement, and the words "Article,"
"Section," "Schedule" and "Exhibit" and like references are to this Agreement
unless otherwise specified.
(b) Singular and plural forms, as the case may be, of terms defined
herein have correlative meanings.
(c) Any defined term which relates to a document includes within
its definition any amendments, modifications, renewals, restatements,
extensions, supplements or substitutions which may heretofore have been or which
may hereafter be executed in accordance with the terms thereof and as may be
permitted by this Agreement.
ARTICLE II
SALE AND PURCHASE
2.1 SALE AND PURCHASE OF SHARES. In reliance on the representations,
warranties and covenants contained herein and subject to the terms and
conditions hereof, on the Closing Date (as defined below):
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(a) Seller will sell, convey, transfer and deliver to Buyer, and
Buyer will purchase from Seller, 20,898,600 shares in the share capital of the
JVC, representing all of the shares in the share capital of the JVC owned by
Seller (the "Shares").
(b) Buyer agrees to pay, or have paid, to Seller an aggregate
purchase price of US$46,000,000 for the Shares, less a deduction of US$49,502
representing the net amount due under Section 2.3 of the Joint Venture Agreement
(the "Purchase Price"). On or before the Closing Date, the Purchase Price shall
be paid via a wire transfer of immediately available funds to an account
designated in writing by Seller at least three business days prior to the
Closing Date.
(c) Seller will sell, convey, transfer and deliver to Buyer, and
Buyer will purchase from Seller, the 50% ownership interest that Seller owns in
the one quota of each of the JVC Subsidiaries representing the entire equity
interest of each JVC Subsidiary owned by Seller; provided, however, if the
Merger has been duly registered with the Registry, Seller will sell, convey
transfer and deliver to Buyer, and Buyer will purchase from Seller, all of the
quotas of Nextel Argentina S.R.L. then held by Seller.
2.2 CLOSING. The closing of the transactions contemplated hereby (the
"Closing") shall take place on a date within seven business days following
satisfaction or waiver of the conditions set forth in Article VII and Article
VIII (the "Closing Date") at the offices of Nextel International, Inc., 1191
Second Avenue, Suite 1600, Seattle, Washington, or at such other place or time
as Seller and Buyer may agree.
2.3 POST-CLOSING CHARTER DOCUMENTS. Buyer shall cause the Memorandum
and Articles of Association of the JVC to be amended on or before the Closing
Date in the form set forth in Exhibit 8.8. The JVC shall duly register the sale
and transfer of the Shares on its Register of Members. Each JVC Subsidiary
shall, and the quotaholders of each JVC Subsidiary shall cause such JVC
Subsidiary to, amend the articles of incorporation of such JVC Subsidiary to
reflect the transactions contemplated by Section 2.1(c).
2.4 FAILURE TO CLOSE. If the Closing shall not take place by January
31, 1998, this Agreement shall terminate and no party hereto shall have any
further obligations hereunder, except for damages resulting from a willful
breach by such party. In addition, if the Closing shall not take place by
January 31, 1998, Seller or its Affiliates shall have the right to purchase, on
or before February 13, 1998, 50% of any shares in the share capital of the JVC
issued by the JVC between December 12, 1997 and February 13, 1998 at a price
equal to the price paid by the acquiror of such shares, such that immediately
after such purchase by Seller, its ownership interest in the JVC shall represent
a 50% ownership interest in the share capital of the JVC; provided, however,
Seller shall not have such right in the event that the Closing did not occur as
the result of a material breach of this Agreement by Seller or Telcom.
2.5 WAIVER OF PREEMPTIVE RIGHTS. All parties hereto hereby waive any
and all preemptive rights or other rights to acquire share capital in the JVC or
the JVC Subsidiaries contained in the Members Agreement or the Articles of
Association of the Company (the "Articles") that they may have as a result of
the transactions contemplated hereby.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
To induce Buyer to enter into and perform this Agreement, Seller
represents and warrants to Buyer as of the date hereof and as of the Closing
Date (which representations and warranties shall survive the Closing as provided
in Section 10.5) all as follows in this Article III.
3.1 AUTHORITY; EXECUTION AND DELIVERY. Seller has full power and
authority to enter into this Agreement and to sell the Shares in accordance with
the terms of this Agreement so as to vest in Buyer legal and valid title to the
Shares, free and clear of all claims, liens, pledges, options, charges, security
interests, mortgages, deeds of trust, encumbrances or rights of any third party
of any nature whatsoever (collectively, "Liens") and to consummate the
transactions contemplated by this Agreement in accordance with its terms. This
Agreement has been duly executed and delivered by Seller and constitutes the
legal, valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms.
3.2 ORGANIZATION, GOOD STANDING, ETC. Seller is duly organized and
validly existing under the laws of the State of Delaware. Seller has all
corporate power and authority required to own, operate and lease its properties
and assets and to carry on its business as now conducted except where such
failure to have corporate power and authority would not have a material adverse
effect on Seller.
3.3 OWNERSHIP OF SHARES. Seller is the lawful owner of, and has
marketable title to, the Shares, free and clear of all Liens. The transfer and
sale of the Shares is not subject to any right of first refusal or offer, right
of co-sale or other right restricting or otherwise encumbering the Shares except
pursuant to the Members Agreement or the Articles. Upon payment for, and
delivery of, the Shares in accordance with the terms of this Agreement and the
register of such transfer in the Registry of Members of the JVC, good and
marketable title to the Shares, free and clear of any Liens, will be transferred
to, and vested in, the Buyer.
3.4 CONSENTS, NO CONFLICTS, ETC. Except pursuant to the Members
Agreement or the Articles, neither the execution and delivery of this Agreement,
the consummation of the transactions contemplated by this Agreement, nor
compliance with any of the provisions of this Agreement will (with or without
the giving of notice or the passage of time) (i) violate, conflict with, result
in a breach of, constitute a default under, or result in the creation of any
Liens upon the Shares pursuant to any of the terms, conditions or provisions of
(x) the certificate of incorporation, bylaws or other organizational documents
of Seller, or (y) any note, bond, mortgage, indenture, deed of trust, lease,
license, agreement, or any other instrument or obligation to which Seller is a
party, or by which Seller or any of its assets or properties may be bound or
affected, (ii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Seller or any of its assets or properties of which
Seller should reasonably have knowledge, or (iii) require the consent, approval,
permission or other authorization of or by or qualification with any court,
arbitrator or governmental, administrative or self-regulatory authority or any
other Person of which Seller should reasonably have knowledge.
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3.5 NO OTHER AGREEMENTS. Seller does not have any legal obligation,
absolute or contingent, to any other Person to sell, convey, transfer, pledge,
hypothecate or deliver any or all of the Shares or to enter into any agreement
with respect to the foregoing.
3.6 NO LIABILITIES. Neither the JVC nor any of the JVC Subsidiaries
have any outstanding liabilities or obligations to Seller, Telcom or any of
their Affiliates (excluding for this purpose, LCC International, Inc. and its
subsidiaries) and none of Seller, Telcom or their Affiliates (excluding for this
purpose, LCC International, Inc. and its subsidiaries) have any outstanding
liabilities or obligations to the JVC or any of the JVC Subsidiaries.
3.7 BROKERAGE. Seller has not retained any broker or finder in
connection with the transactions contemplated by this Agreement. Any brokerage
or finder's fee due to any broker or finder in violation of the foregoing
representation shall be paid by Seller.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
To induce Seller to enter into and perform this Agreement, Buyer
represents and warrants to Seller as of the date hereof and as of the Closing
Date (which representations and warranties shall survive the Closing as provided
in Section 10.5) all as follows in this Article IV.
4.1 ORGANIZATION, GOOD STANDING, ETC. Buyer is duly incorporated and
validly existing under the laws of the Cayman Islands. Buyer has all corporate
power and authority required to own, operate and lease its properties and assets
and to carry on its business as now conducted except where such failure to have
corporate power and authority would not have a material adverse effect on Buyer.
4.2 AUTHORITY; EXECUTION AND DELIVERY. Buyer has full power and
authority to enter into this Agreement, to purchase the Shares in accordance
with the terms of this Agreement and to consummate the transactions contemplated
by this Agreement in accordance with its terms. This Agreement has been duly
executed and delivered by the Buyer and constitutes the legal, valid and binding
obligation of the Buyer, enforceable against Buyer in accordance with its terms.
4.3 CONSENTS, NO CONFLICTS, ETC. Neither the execution and delivery of
this Agreement, the consummation of the transactions contemplated by this
Agreement, nor compliance with any of the provisions of this Agreement will
(with or without the giving of notice or the passage of time) (i) violate,
conflict with, result in a breach of, or constitute a default pursuant to any of
the terms, conditions or provisions of (x) the memorandum or articles of
association of Buyer, or (y) any note, bond, mortgage, indenture, deed of trust,
or material lease, license or agreement or any other material instrument or
obligation to which Buyer is a party or by which Buyer or any of its assets or
properties may be bound or affected, (ii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Buyer or any of its assets or
properties of which Buyer should reasonably have knowledge or (iii) require the
consent, approval, permission or other authorization of or by or filing or
qualification with any
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court, arbitrator or governmental, administrative, or self-regulatory authority
or any other person or entity of which Buyer should reasonably have knowledge.
4.4 BROKERAGE. Buyer has not retained any broker or finder in
connection with the transactions contemplated by this Agreement. Any brokerage
or finder's fee due to any broker or finder in violation of the foregoing
representation shall be paid by Buyer.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE JVC
To induce Seller to enter into and perform this Agreement, the JVC
represents and warrants to Seller as of the date hereof and as of the Closing
Date (which representations and warranties shall survive the Closing as provided
in Section 10.5) all as follows in this Article V.
5.1 NO LIABILITIES. To the best of its knowledge, neither the JVC nor
any of the JVC Subsidiaries have any outstanding liabilities or obligations to
Seller, Telcom or any of their Affiliates (excluding for this purpose, LCC
International, Inc. and its subsidiaries) and none of Seller, Telcom or their
Affiliates (excluding for this purpose, LCC International, Inc. and its
subsidiaries) have any outstanding liabilities or obligations to the JVC or any
of the JVC Subsidiaries.
ARTICLE VI
FURTHER AGREEMENTS
Each of the parties hereto agrees to perform and observe the following
agreements applicable to it:
6.1 SCHEDULES.
(a) All representations and warranties herein shall apply to any
exhibits, schedules and certificates delivered by Buyer or any officer thereof
to Seller, and each such certificate shall be deemed to be a representation by
Buyer as to the matters set forth therein. All representations and warranties
herein shall apply to any exhibits, schedules and certificates delivered by
Seller or any officer thereof to Buyer, and each such certificate shall be
deemed to be a representation by Seller as to the matters set forth therein.
(b) On or prior to the Closing Date, Buyer may deliver to Seller
and Seller may deliver to Buyer one or more Schedules to this Agreement that
have been revised and updated to reflect changes to the operations or condition
of Buyer or Seller, as the case may be, between the date hereof and the Closing.
The delivery of any such revised Schedule shall not affect the rights of any
party under Articles VII and VIII, but if the Closing shall occur, the revised
Schedules shall be deemed to supersede the Schedules delivered herewith, but
only with respect to the representations and warranties given as of the Closing
Date.
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6.2 RESIGNATION OF THE JVC DIRECTORS. At the Closing, Seller shall
cause the resignation of Rajendra Singh, Neera Singh, Rahul Prakash and any
alternate directors appointed by Seller from the Board of Directors of the JVC.
6.3 JOINT VENTURE AGREEMENT. The parties hereto acknowledge and agree
that, effective upon the Closing and the payment of the Purchase Price, neither
Buyer, Seller nor any other party shall have any liability, claim, or obligation
to reimburse or indemnify arising under Section 2.3 of the Joint Venture
Agreement. The parties acknowledge and agree that, except as contemplated by the
preceding sentence, the rights and obligations of the parties to the Joint
Venture Agreement contained in Article VIII thereof shall continue to be of full
force and effect and shall in no way be affected by the provisions of this
Agreement.
6.4 MEMBERS AGREEMENT. Seller, Buyer and the JVC hereby agree that the
Members Agreement will automatically be terminated and of no further force and
effect as of the Closing Date.
6.5 TERMINATION OF AGENCY AGREEMENT. The JVC, Buyer and Seller hereby
agree that the Agency Agreement (the "Agency Agreement") dated as of May 6, 1997
by and between the JVC, Buyer and Seller shall automatically be terminated and
of no further force and effect as of the Closing Date.
6.6 CONFIDENTIALITY. The Confidentiality Agreement among Telcom,
Wireless Ventures of Brazil, Inc., Seller and Nextel dated as of October 28,
1996 shall remain in full force and effect in accordance with its terms and
shall apply to all documents and information supplied in connection herewith.
6.7 ASSIGNMENT OF RIGHTS IN CAPITAL CONTRIBUTIONS. Each of Seller and
Telcom hereby agrees to assign to the JVC all rights, if any, it has to any
capital contributions made to the JVC Subsidiaries.
6.8 CERTAIN RENTED EQUIPMENT. Prior to the Closing Date, Buyer shall
advise Telcom whether the JVC wishes to retain the spectrum analyzer and related
equipment that has been rented by Telcom from Electro Rent Corporation (the
"Lessor") on behalf of the JVC Subsidiaries (the "Rented Equipment"). If the JVC
wishes to continue to use the Rented Equipment, the Buyer and Telcom shall
arrange for the transfer of the rental arrangement for the Rental Equipment from
Telcom to Buyer by the 30th day following the Closing. If the parties are unable
to arrange for such transfer by such date or if Buyer does not advise Telcom by
the Closing that the JVC wishes to continue to use the Rented Equipment, at the
request of Telcom, Buyer shall cause the Rented Equipment to be delivered to
Telcom (or its designee) at a location to be designated by Telcom in Buenos
Aires, Argentina.
6.9 OTHER COOPERATION. All parties will promptly take, and fully
cooperate with the other parties and their legal counsel and accountants in
connection with, any steps reasonably required to be taken as part of the
obligations of the parties under this Agreement or to promptly satisfy the
conditions precedent hereunder. Nextel shall cause Buyer to comply with all of
its agreements and obligations hereunder.
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ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller to perform and observe the covenants,
agreements and conditions hereof to be performed and observed by it at or before
the Closing Date shall be subject to the satisfaction of the following
conditions, any of which may be expressly waived by Seller.
7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Buyer contained in Article IV (including applicable Schedules
hereto) shall have been true in all material respects when made and shall be
true in all material respects on and as of the Closing Date with the same force
and effect as though made on and as of such date, except as affected by
transactions contemplated hereby and except to the extent that such
representations and warranties shall have been made as of a specified date, in
which case such representations and warranties shall have been true as of the
specified date.
7.2 PERFORMANCE OF AGREEMENT. Buyer shall have performed in all
material respects all obligations and agreements and complied in all material
respects with all covenants and conditions contained in this Agreement to be
performed and complied with by it at or prior to the Closing Date.
7.3 APPROVALS AND CONSENTS. All approvals and consents from third
parties listed on Schedule 4.3, if any, shall have been obtained.
7.4 LEGAL PROCEEDINGS. No law, regulation, administrative ruling or
order of any court or administrative agency of competent jurisdiction shall be
in effect that enjoins, restrains or prohibits consummation of this Agreement,
and no litigation, investigation or administrative proceeding reasonably likely
to enjoin, restrain or prohibit consummation of this Agreement shall be pending.
7.5 BUYER OFFICERS' CERTIFICATES. Seller shall have received a
certificate from a Vice President of Nextel, dated the Closing Date, in
substantially the form attached hereto as Exhibit 7.5, certifying that (a) the
conditions set forth in this Article VII have been fulfilled and (b) the
representations and warranties of Buyer herein are true and correct in all
material respects as of the Closing Date.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer to perform and observe the covenants,
agreements and conditions hereof to be performed and observed by Buyer at or
before the Closing Date shall be subject to the satisfaction of the following
conditions, any of which may be expressly waived in writing by Buyer.
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8.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Seller contained in Article III (including applicable
Schedules thereto) shall have been true in all material respects when made and
shall be true in all material respects on and as of the Closing Date with the
same force and effect as though made on and as of such date, except as affected
by transactions contemplated hereby and except to the extent that such
representations and warranties are made as of a specified date, in which case
such representations and warranties shall be true as of the specified date.
8.2 PERFORMANCE OF AGREEMENT. Seller shall have performed in all
material respects all obligations and agreements and complied in all material
respects with all covenants and conditions contained in this Agreement to be
performed and complied with by it at or prior to the Closing Date.
8.3 SHARE CERTIFICATES. On the Closing Date, Seller shall have
delivered to Buyer all certificates in Seller's possession evidencing the
Shares, free and clear of any Liens, duly endorsed in blank for transfer or
accompanied by stock powers duly executed in blank and with all requisite
documentary or stock transfer tax stamps affixed.
8.4 TRANSFER TAXES. In addition to payment of documentary or stock
transfer taxes provided for in Section 8.3 hereof, Seller shall be responsible
for the payment of any other documentary, transfer, sales, use, gains or other
similar taxes applicable to the transactions contemplated by this Agreement and,
on the Closing Date, Seller shall have delivered to Buyer evidence of payment of
any such taxes legally required to be paid prior to the transfer of the Shares.
8.5 APPROVALS AND CONSENTS. All material approvals and consents from
third parties listed on Schedule 3.4, if any, shall have been obtained.
8.6 LEGAL PROCEEDINGS. No law, regulation, administrative ruling or
order of any court or administrative agency of competent jurisdiction shall be
in effect that enjoins, restrains or prohibits consummation of this Agreement,
and no litigation, investigation or administrative proceeding reasonably likely
to enjoin, restrain or prohibit consummation of this Agreement shall be pending.
8.7 SELLER'S OFFICERS' CERTIFICATE. Buyer shall have received a
certificate from Seller, dated the Closing Date, in substantially the form
attached hereto as Exhibit 8.7, certifying that (a) the conditions set forth in
Sections 8.1, 8.2, 8.3, 8.4, 8.5, 8.6 (to its knowledge), 8.9 and 8.10 have been
fulfilled and (b) the representations and warranties of Seller herein are true
and correct as of the Closing Date.
8.8 AMENDMENT OF MEMORANDUM AND ARTICLES OF ASSOCIATION. The Memorandum
and Articles of Association of the JVC shall have been amended and restated in
the form attached hereto as Exhibit 8.8.
8.9 RESIGNATION OF DIRECTORS. Rajendra Singh, Neera Singh and Rahul
Prakash shall have resigned as Directors of the JVC effective as of the Closing
and any alternate Directors of
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the JVC appointed by Seller or its Directors shall have resigned effective as of
the Closing, and Seller shall not have nominated any replacements to such
positions.
8.10 TERMINATION OF POWERS OF ATTORNEY. All powers of attorney, if
any, granted by Seller or its Affiliates with respect to any of the JVC
Subsidiaries shall have been terminated effective as of the Closing.
ARTICLE IX
NONCOMPETITION
Each of Telcom and Seller agrees that, until three years following the
Closing Date, neither such party nor any Affiliate Controlled by such party
shall in any way, by action or inaction, directly or indirectly, for itself or
for the benefit of any other Person, own, manage, operate, join, Control or
participate in the ownership, management, operation or Control of any Person
that competes with the Company or any Affiliate thereof, or agrees to do any of
the foregoing, in the business of paging, specialized mobile radio or enhanced
specialized mobile radio in Argentina, other than wireless radio engineering,
design or program management services and the manufacture and sale of related
software and hardware products.
ARTICLE X
INDEMNIFICATION AND SURVIVAL OF WARRANTIES
10.1 INDEMNIFICATION BY SELLER AND TELCOM. Seller and Telcom agree to
jointly and severally indemnify and hold harmless, on an after-tax basis, Buyer,
its successors and permitted assigns, and the officers, directors, Affiliates,
employees, Controlling Persons and agents of the foregoing and to hold each such
party harmless against and in respect of any and all losses, damages, costs and
expenses, including attorneys' fees ("Damages"), incurred by such party by
reason of (a) the breach of any of the representations or warranties made in
this Agreement by Seller or Telcom, (b) the breach of any covenant contained
herein by Seller or Telcom, (c) the breach of undertakings of Seller or Telcom
in any other document, supplement, instrument, agreement, letter, amendment or
assignment executed in connection herewith, or in any certificate delivered to
Buyer at or in connection with the Closing, or (d) the failure of Seller or
Telcom or any of their Affiliates to fulfill their respective obligations under
the U.S.$200,000.00 Note owing to Conevial relating to indebtedness incurred by
WVA prior to the closing of the Joint Venture Agreement or the U.S.$125,204.00
Note to Ericsson LM Telephone Co. or its Affiliates relating to the purchase of
equipment by WVA prior to the closing of the Joint Venture Agreement; provided
that, except with respect to clause (d) above, Seller and Telcom shall not be
obligated to make any payments under this Section 10.1 unless and until the
amount of Damages exceeds US$100,000.00.
10.2 INDEMNIFICATION BY BUYER AND NEXTEL. Buyer and Nextel agree to
jointly and severally indemnify and hold harmless, on an after-tax basis,
Seller, its successors and permitted assigns, and the officers, Directors,
Affiliates, employees, Controlling Persons and agents of the foregoing and to
hold each such party harmless against and in respect of any and all damages
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incurred by such party by reason of (a) the breach of any of the representations
or warranties made in this Agreement by Buyer, (b) the breach of any covenant
contained herein by Buyer or Nextel, or (c) the breach of undertakings of Buyer
or Nextel in any other document, supplement, instrument, agreement, letter,
amendment or assignment executed in connection herewith or in any certificate
delivered to Seller at or in connection with the Closing; provided that Buyer
shall not be obligated to make any payments under this Section 10.2 unless and
until the amount of damages exceeds US$100,000.00.
10.3 TIME OF REPRESENTATIONS. For purposes of the indemnification made
in this Article X, all representations and warranties shall be deemed to have
been made on and as of the Closing Date, except to the extent that such
representations and warranties are expressly made as of a specified date, in
which case such representations and warranties shall be true as of the specified
date.
10.4 PROCEDURE. With respect to the claims made by third parties, if
a party entitled to indemnification is threatened with any claim, or any claim
is presented to or any action or proceeding is commenced against such party,
that may give rise to the right of indemnification hereunder, Buyer or Seller,
as the case may be (the "Indemnitee"), will give written notice thereof promptly
(and in no event later than the last survival date of the representation and
warranty for the breach of which indemnification is sought) to the party from
which indemnification is sought (the "Indemnifying Party"); provided that the
failure to give notice in accordance with this Section 10.4 shall not prevent
enforcement hereunder if such failure is not prejudicial to the Indemnifying
Party. The Indemnifying Party shall have the right to participate in the defense
of such claim, action or proceeding, and, to the extent the Indemnifying Party
so desires, jointly with any other Indemnifying Party similarly notified, to
assume the defense thereof with counsel mutually satisfactory to such parties
and the Indemnitee. If the Indemnifying Party and the Indemnitee agree upon
mutually satisfactory counsel to assume the defense, the Indemnifying Party
shall assume the expense of such counsel's fees and shall no longer assume the
expense of the Indemnitee's attorneys' fees. In the event the Indemnifying Party
undertakes to compromise or defend any such liability, the Indemnifying Party
shall so notify the Indemnitee in writing promptly of its intention to do so,
and the Indemnitee shall cooperate with the Indemnifying Party and its counsel
in the compromising of or the defending against any such liabilities or claims,
at the expense of the Indemnifying Party. Such cooperation shall include, but
shall not be limited to, the provision to the Indemnifying Party of reasonable
access to the Indemnitee's business records, research, documents and employees
as they relate to the defense of any indemnified claim. In response to a bona
fide settlement offer, the Indemnifying Party may settle the monetary portion of
an indemnifiable matter that he has duly elected to contest without the consent
of the Indemnitee unless such settlement has an adverse effect upon the
Indemnitee, in which case such matters shall be settled only with the consent of
the Indemnitee; provided, however, that the Indemnifying Party shall not have
the right to agree to a settlement involving injunctive or other equitable
relief without obtaining the prior written consent of the Indemnitee. In the
event the Indemnitee declines to consent to the monetary settlement described in
the preceding sentence, then the Indemnitee shall have no right to
indemnification beyond, and the Indemnifying Party shall have no obligation to
pay damages and attorneys' fees hereunder in excess of, the amount of the
proposed settlement.
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10.5 SURVIVAL. The covenants, agreements, representations and
warranties made by the parties in or pursuant to this Agreement shall survive
the Closing Date for one year except as otherwise set forth herein. Any claim
for indemnification asserted in accordance with the provisions of this Agreement
prior to the relevant expiration date shall survive until it is resolved.
ARTICLE XI
TERMINATION
11.1 TERMINATION. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing Date:
(a) by mutual written consent;
(b) if the Closing does not occur on or before January 31, 1998;
(c) by either Seller or Buyer if a court of competent
jurisdiction or governmental authority shall have issued a nonappealable final
order, decree or ruling or taken any other action, in each case having the
effect of permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated hereby;
(d) by Seller upon a breach of any representation, warranty,
covenant or agreement on the part of Buyer set forth in this Agreement such that
the conditions set forth in Section 7.1 or 7.2 would not be satisfied; or by
Buyer upon a breach of any representation, warranty, covenant or agreement on
the part of Seller set forth in this Agreement such that the conditions set
forth in Section 8.1 or 8.2 would not be satisfied; or
(e) by Seller if any representation or warranty of Buyer shall
have become untrue such that the conditions set forth in Article VII cannot
reasonably be expected to be satisfied; or by or Buyer if any representation or
warranty of Seller shall have become untrue such that the conditions set forth
in Article VIII cannot reasonably be expected to be satisfied.
11.2 EFFECT OF TERMINATION. In the event of any termination pursuant
to this Article XI (other than pursuant to Section 11.1(a), written notice
setting forth the reasons therefor shall forthwith be given by the terminating
party to the other party hereto, and neither party shall have any liability to
the other party of any nature whatsoever due to such termination, except for
damages resulting from a willful breach.
ARTICLE XII
GENERAL
12.1 EXPENSES. Regardless of whether the transactions contemplated by
this Agreement are consummated, Seller shall pay its own fees, costs and
expenses, and Buyer shall pay its own fees, costs and expenses, incident to the
negotiation, preparation and carrying out of this Agreement.
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12.2 AMENDMENT. The parties may amend, modify or supplement this
Agreement at any time, but only in a written amendment duly executed on behalf
of each of the parties.
12.3 HEADINGS. The headings preceding the text of Sections of this
Agreement are for convenience only and shall not be deemed parts thereof.
12.4 APPLICABLE LAW; ENFORCEMENT. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Delaware,
as applied to contracts executed and to be fully performed in such state. Each
of the parties hereto (a) consents to submit itself to the personal jurisdiction
of any federal court located in the Commonwealth of Virginia or any Virginia
state court if any dispute arises out of this Agreement (b) agrees that it will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (c) agrees that it will not bring any
action relating to this Agreement or any of the transactions contemplated by
this Agreement in any court other than a federal court sitting in the
Commonwealth of Virginia or a Virginia state court.
12.5 PARTIES IN INTEREST. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and permitted assigns of the parties hereto,
whether herein so expressed or not. This Agreement shall not be assigned by any
party hereto in whole or in part without the prior written consent of the other
parties hereto; provided, however, that Buyer may at any time assign all or part
of its right, title and interest in, to and under this Agreement and the
documents, agreements and supporting papers delivered in connection herewith to
any Affiliate of Buyer; provided further that any such assignment shall not
relieve Buyer or Nextel of any obligations hereunder.
12.6 WAIVERS. Any terms, covenants, representations, warranties or
agreements of any party hereto may be waived at any time by an instrument in
writing executed by the party for whose benefit such terms exist. The failure of
any party at any time or times to require performance of any provisions hereof
shall in no manner affect its right at a later time to enforce the same. No
waiver by any party of any condition or breach of any terms, covenants,
representations, warranties or agreements contained in this Agreement shall be
effective unless in writing, and no waiver in any one or more instances shall be
deemed to be a further or continuing waiver of any other condition or any breach
of any other terms, covenants, representations, warranties or agreements.
12.7 NOTICES. Any notice or demand desired or required to be given
hereunder shall be in writing and deemed given when personally delivered or
deposited in the mail, postage prepaid, sent certified or registered, or when
delivered by facsimile, and addressed as respectively set forth below, or to
such other address as any party shall have previously designated by such a
notice. Any notice so delivered personally or by facsimile, transmission
confirmed, shall be deemed to be received on the date of delivery and any notice
so mailed shall be deemed to be received three days after the date on which it
was mailed.
Notices to the parties shall be sent as follows:
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(a) To Nextel Parties and the JVC:
Nextel International, Inc.
1191 Second Avenue, Suite 1600
Seattle, WA 98101
Attention: General Counsel
Fax: (206) 749-8384
with a copy to:
Venture Law Group
4750 Carillon Point
Kirkland, WA 98033
Attention: Craig E. Sherman
Fax: (425) 739-8709
File #: 15799-0007
To Telcom or Seller:
Telcom Ventures, LLC
211 North Union Street, Suite 300
Alexandria, VA 22314
Attention: President and General Counsel
Fax: (703) 706-3801
with a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, NY 10019
Attention: William J. Phillips
Fax: (212) 259-6333
12.8 PUBLIC DISCLOSURE. No party to this Agreement shall issue any
press releases or make any public announcements of any of the transactions
contemplated by this Agreement except that each party hereto shall be permitted
to make such disclosures to the public or governmental authorities as their
respective counsel shall deem necessary to maintain compliance with, or prevent
violation of, applicable laws or regulations or to comply with an order of a
court of competent jurisdiction.
12.9 COUNTERPARTS. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
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12.10 ENTIRE UNDERSTANDING. The terms set forth in this Agreement are
intended by the parties as a final, complete and exclusive expression of the
terms of its agreement and may not be contradicted, explained or supplemented by
evidence of any prior agreement, any contemporaneous oral agreement or any
consistent additional terms.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have entered into and signed
this Agreement as of the date and year first above written.
NEXTEL INTERNATIONAL, INC.
By /s/ HENG-PIN KIANG
------------------------------
Its SENIOR VICE PRESIDENT
---------------------------
NEXTEL INTERNATIONAL
(DELAWARE), LTD.
By /s/ HENG-PIN-KIANG
------------------------------
Its VICE PRESIDENT
---------------------------
NEXTEL INTERNATIONAL
(HOLDINGS), LTD.
By /s/ HENG-PIN-KIANG
------------------------------
Its VICE PRESIDENT
---------------------------
TELCOM VENTURES, LLC
By /s/ RAHUL PRAKASH
------------------------------
Its
---------------------------
WIRELESS VENTURES OF
ARGENTINA, L.L.C.
By /s/ RAHUL PRAKASH
------------------------------
Its
---------------------------
NEXTEL INTERNATIONAL
(ARGENTINA), LTD.
By /s/ HENG-PIN-KIANG
------------------------------
Its VICE PRESIDENT
---------------------------
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