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ANNEX F
XXXXX INTERNATIONAL (BRAZIL), LTD.
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (this "Agreement") is made as of
____________________, 199__, by and among XxXxx International (Brazil), Ltd., a
Virginia corporation, formerly named Wireless Ventures of Brazil, Inc. (the
"Company"), and the Persons listed as Shareholders on Exhibit I attached hereto,
as amended from time to time, including XxXxx International, Ltd., a Washington
corporation ("MIL"), Telcom Ventures, LLC, a Delaware limited liability company
("Telcom") and the other Shareholders listed as the Founders on the signature
pages to this Agreement (the "Founders") (collectively, the "Shareholders" and,
individually, a "Shareholder").
RECITALS
The Founders are the owners of all of the Company's Class B Common Stock
and MIL is the owner of all of the Company's Class A Common Stock (together with
the Class B Common Stock, the "Common Stock"), and the Shareholders desire to
enter into certain agreements relating to transfers of Common Stock and other
issues relating to the Company.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are acknowledged and to further the interests of the
Company and its present and future Shareholders, the parties agree as follows:
1. TRANSFERABILITY
1.1 TRANSFERS
Except as otherwise provided in this Agreement, no Shareholder may sell,
assign, transfer, pledge, hypothecate, mortgage, encumber or otherwise transfer
to any Person (as defined in the Agreement and Plan of Merger between Nextel
Communications, Inc., Dial Call Indimich, Inc. and the Company dated October 28,
1996 (the "Merger Agreement")) other than to one of its Affiliates (as defined
in the Merger Agreement) or other than in connection with the grant of a
security interest to secure a bona fide third-party financing (collectively,
"Transfer," including, with correlative meanings, the terms "Transferring" and
"Transferred") all or any part of any shares of Common Stock or other securities
of the Company convertible into or exercisable for Common Stock (collectively,
the "Shares") unless the Shareholder proposing such a Transfer (the "Selling
Shareholder") has complied with the provisions of this Section 1.
1.2 RESTRICTIVE LEGEND
Each certificate representing (a) Shares or (b) any other securities issued
in respect of the Shares upon any stock split, stock dividend, recapitalization,
merger, consolidation or similar event shall be stamped or otherwise imprinted
with a legend setting forth the transfer restrictions imposed by this Agreement
and applicable law as required by Section 10.2. The Shareholders consent to the
Company' making a notation on its records and giving instructions to any
transfer agent of the Shares in order to implement the restrictions on Transfer
established in this Section 1.
1.3 RIGHT OF FIRST REFUSAL
1.3.1 TRANSFERS BY SHAREHOLDERS
Except as otherwise provided in this Agreement, no Founder may Transfer any
interest, direct or indirect, in all or any part of the Shares owned by such
Shareholder (a) during the period beginning on the date hereof
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and ending on the date two years and 90 days after the date hereof (the "Grace
Period") and (b) after the expiration of the Grace Period, unless, in the case
of this clause (b) only, (i) the Selling Shareholder shall have made an offer to
sell such Shares to the other Shareholders and the Company as provided in this
Section 1.3 and (ii) such offer shall not have been accepted in the manner
described in this Section 1.3. No Shareholder (including the Founders
collectively) having beneficial ownership of less than 10% of the Common Stock
at the time of any proposed Transfer by any other Shareholder shall have rights
of first refusal as provided in this Section 1.3.
1.3.2 OFFER BY SELLING SHAREHOLDER
The offer referred to in Section 1.3.1 shall consist of a written offer
(the "Offer") to the other Shareholders entitled to rights of first refusal (the
"Offerees") to sell the Shares proposed to be Transferred (the "Offered
Shares"). The Offer shall set forth (a) a statement of intention to effect a
Transfer, (b) the number and class of Offered Shares, (c) the terms and
conditions of the proposed Transfer, including (i) the purchase price for the
Offered Shares and (ii) the identity and beneficial ownership of the third party
or parties having made a bona fide offer to purchase the Offered Shares on such
terms and conditions, and (d) the desired closing date of the transaction.
1.3.3 ACCEPTANCE OF OFFER
Within 30 days after its receipt of the Offer, the Offerees may, at their
option, accept the Offer as to all or less than all of the Offered Shares by
giving irrevocable written notice to the Selling Shareholder, the Company and
the other Shareholders prior to the expiration of such 30-day period.
1.3.4 PRO RATA PORTION
The Offered Shares shall first be allocated to the Offerees. If the
Offerees shall not have offered to purchase all the Offered Shares, the Company
may elect to purchase any remaining Offered Shares. To the extent that more than
one Offeree shall have elected to purchase Offered Shares pursuant to Section
1.3.3, each such Offeree may purchase up to its pro rata portion of such Offered
Shares as determined in accordance with this Section 1.3.4. Each Offeree's pro
rata portion of the Offered Shares is that proportion of the Offered Shares as
the number of shares of voting capital stock of the Company held by such Offeree
bears to the aggregate number of shares of voting capital stock of the Company
held by such Offeree and all other Offerees who have exercised their rights of
first refusal under this Section 1.3.
1.3.5 CLOSING
If the Offer is accepted as to all the Offered Shares, the parties shall
use their best efforts to complete the closing of such purchase within 30 days
after acceptance of the Offer. If, after expiration of such 30-day period, the
closing of such purchase of all Offered Shares shall not have occurred (unless
closing is subject only to receipt of required governmental or regulatory
approvals) through no fault of the Selling Shareholder, then the Selling
Shareholder may treat the Offer as having been rejected in its entirety. If the
Offer is not accepted as to all the Offered Shares as provided in this Section
1.3, or is deemed to be rejected as set forth in the previous sentence, the
Selling Shareholder may for a period of 60 days after such nonacceptance or
deemed rejection Transfer the Offered Shares to the third party or parties
designated in the Offer and on the terms and conditions specified in the Offer.
A proposed Transfer after the expiration of such 60-day period or on any other
terms shall again be subject to the rights of first refusal and other provisions
of this Section 1.
1.4 TAG-ALONG RIGHTS
1.4.1 TRANSFERS BY MIL
Except as otherwise provided in this Agreement, neither MIL nor any
Affiliate of MIL may Transfer all or any part of the Shares owned by MIL or such
Affiliate unless (a) MIL or such Affiliate shall have sent to each other
Shareholder (each a "Tag-Along Offeree") a written offer (the "Tag-Along Offer")
to include in such Transfer all or any portion of such Tag-Along Offeree's
Tag-Along Shares (as defined below) at the
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same price and on the same terms as MIL or such Affiliate shall Transfer its
Shares and (b) such offer shall not have been accepted in the manner described
in this Section 1.4. Each Tag-Along Offeree's "Tag-Along Shares," which shall be
calculated separately for each class of Shares included in the Offered Shares,
shall mean that number of Shares of such class as is equal to the number of
Shares of such class then owned by such Tag-Along Offeree multiplied by a
fraction, the numerator of which is the number of Shares of such class being
sold by MIL and its Affiliates and the denominator of which is the number of
Shares of such class then owned by MIL and its Affiliates.
1.4.2 TAG-ALONG OFFER
The Tag-Along Offer shall consist of a written offer to the Tag-Along
Offerees to sell the Shares proposed to be Transferred (the "Proposed Shares").
The Tag-Along Offer shall set forth (a) a statement of intention to effect such
a Transfer, (b) the number and class of Proposed Shares, (c) the terms and
conditions of the proposed Transfer, including the purchase price for the
Proposed Shares, and (d) the desired closing date of the transaction.
1.4.3 ACCEPTANCE OF TAG-ALONG OFFER
Within 30 days after its receipt of the Tag-Along Offer, each Tag-Along
Offeree may, at its option, accept the Tag-Along Offer as to all or less than
all of such Tag-Along Offeree's Tag-Along Shares by giving irrevocable written
notice to MIL, the Company and the other Shareholders prior to the expiration of
such 30-day period. Any Tag-Along Shares to be Transferred by Tag-Along Offerees
shall be substituted for an equal number of Proposed Shares.
1.4.4 CLOSING
MIL and those Tag-Along Offerees having accepted the Tag-Along Offer shall
use their best efforts to complete the closing of any such Transfer within 30
days after the end of the 30-day offering period. If MIL and the Tag-Along
Offerees shall fail to complete such Transfer within such 30-day closing period
(unless closing is delayed due to the need for required governmental or
regulatory approvals), or if MIL and the Tag-Along Offerees propose to effect a
Transfer on different terms than those permitted by the Tag-Along Offer pursuant
to Section 1.4.2, then any proposed Transfer shall again be subject to all the
Transfer restrictions set forth in this Section 1.
1.5 DRAG-ALONG RIGHTS OF MIL
1.5.1 RIGHT TO REQUIRE SALE OF THE COMPANY
Notwithstanding the other provisions of this Section 1, if MIL and its
Affiliates seek to effect a transaction involving a bona fide sale of their
entire interest in the Company to an unrelated third party or parties (a
"Buyer"), whether by sale of shares, sale of all or substantially all assets,
merger or otherwise (a "Sale"), the other Shareholders will, upon notice from
MIL after compliance with the provisions of this Section 1.5, take all
commercially reasonable actions required to assist in effecting such Sale,
including, without limitation, Transferring or agreeing to Transfer the Shares
owned by them at a price equal to that at which MIL is Transferring Shares and
otherwise on identical terms and voting in favor of a transaction that results
in such a Transfer.
1.5.2 PROCEDURE
MIL shall give written notice to the Company's Board of Directors (the
"Board") and the other Shareholders of MIL's intent to effect a Sale of the
Company. MIL may for a period of 180 days after such notice seek to effect a
Sale of the Company to a Buyer. If such Sale shall not have closed within such
180-day period (unless closing is delayed due to the need for required
governmental or regulatory approval), any proposed Transfer shall again be
subject to all the Transfer restrictions set forth in this Section 1.
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1.6 NO OTHER TRANSFER EFFECTIVE
Except as provided in this Section 1, no Transfer of any right, title or
interest in the Shares shall be effective, and the Company shall not record or
recognize any such Transfer, until there has been compliance with the provisions
of this Agreement. If no Offer is made as herein required, the Shareholders may
nevertheless exercise their rights hereunder as to the Shares subject to any
proposed Transfer, and they may do so at any time, including after the Transfer
of the Shares.
2. VOTING
2.1 VOTING OF SHARES
Each Shareholder shall vote all Shares owned by such Shareholder, or as to
which such Shareholder has voting power, pursuant to the provisions of this
Agreement.
2.2 ELECTION OF DIRECTORS
In elections of directors of the Company, the Shareholders shall vote in
favor of (a) one or more candidates designated by the Founders, which candidates
would represent no more than 10% of the directors of the Company; providedthat
so long as the Founders shall collectively own 10% or more of the Common Stock,
the Founders shall have the right to designate at least one candidate for
election to the Board and (b) all other candidates, all of whom shall have been
designated by MIL. If at any time the Founders shall collectively own less than
10% of the Common Stock, the director or directors designated for election to
the Board by the Founders (the "Founder Director") shall resign as a director.
The Founders shall not have the right to designate any candidates for election
to the board of directors or comparable governing body of any subsidiary of the
Company.
2.3 VOTING TRUST
If MIL and its Affiliates shall at any time have beneficial ownership of
less than 50% but more than 25% of the Common Stock, the Founders and the
Founder Director shall, subject to their fiduciary duties to the Company and all
Shareholders, execute any legal document required by appropriate law, and
thereafter cast all votes in favor of or against matters to be approved by the
shareholders of the Company or the Board, as the case may be, in the same manner
as MIL and its Affiliates and the directors nominated thereby, respectively;
provided that this Section 2.3 shall not diminish any rights which the Founders
otherwise have under Article Seven of the Company's Articles of Incorporation.
3. REPURCHASE AT OPTION OF COMPANY OF COMMON STOCK OWNED BY FOUNDERS
(a) If the Founder Director fails to approve any action proposed to the
Board pursuant to Article Seven of the Company's Articles of Incorporation, or
if the holders of Class B Common Stock fail to approve any such action proposed
to the shareholders of the Company, the Company shall have the right, by written
notice to the Founders given within 30 days of the vote of the Board, and upon
approval of a simple majority of the directors of the Company (excluding the
Founder Director), to repurchase all, but not less than all, of the Common Stock
then owned by the Founders. Such repurchase shall close within 30 days of the
final determination of Fair Market Value, subject only to completion of the
appraisal process and receipt of required governmental or regulatory approvals.
The repurchase price (the "Repurchase Price") shall equal the Appraised Fair
Market Value (as defined below) of the Company as of the exercise date
multiplied by a fraction, the numerator of which is the number of shares of
Common Stock then owned by the Founders and the denominator of which is the
total number of Shares (calculated on a fully diluted basis at the stated
exercise price of all options). The Repurchase Price shall, at the Company's
election, be payable in cash, common stock of Nextel Communications, Inc.
("Nextel Common Stock") or any combination thereof. Any Nextel Common Stock used
as part of the Repurchase Price shall be either registered with the U.S.
Securities and Exchange Commission (the "SEC") or registrable at the election of
the Founders, exercisable by Telcom on behalf of the Founders, within 30 days
after closing of the repurchase right. The Nextel Common Stock shall be valued
at the average of the closing price of the Nextel Common Stock on the principal
trading
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market on which such shares are traded over the 20 trading days prior to closing
of the repurchase transaction. If paid in cash, the Repurchase Price shall be
payable in four equal quarterly installments, beginning on the date of closing
of the repurchase right and on each three-month anniversary thereof, with
interest accruing on the unpaid principal at an annual rate equal to the annual
rate of interest publicly announced by The Chase Manhattan Bank, N.A., or any
successor thereto, in New York City as its prime rate from time to time (the
"Prime Rate") plus 1%.
(b) For purposes of this Agreement, "Fair Market Value" means the price
that an unrelated third party would pay if it were to acquire all outstanding
Shares (including all outstanding vested options at the stated exercise price
thereof) in an arm's-length transaction, assuming that the Shares were being
sold in a manner designed to attract all possible participants and without
taking into consideration a control premium or minority discount. The "Appraised
Fair Market Value" shall be determined in accordance with the following
procedures: MIL shall select an investment banking firm of recognized national
standing (the "First Appraiser"), which shall appraise the Fair Market Value and
deliver its appraisal to the Company, Telcom and MIL, within 60 days of its
engagement. If Telcom shall disagree with the Fair Market Value determined by
such appraiser, then Telcom shall have the right to appoint an additional
investment banking firm of recognized national standing (the "Second
Appraiser"). If Telcom does not engage a Second Appraiser within 30 days of the
First Appraiser's delivery of its appraisal, the First Appraiser's appraisal
shall be the Appraised Fair Market Value. If Telcom engages a Second Appraiser,
the Second Appraiser will appraise the Fair Market Value, and deliver its
appraisal to the Company, Telcom and MIL, within 60 days of its engagement. If
such difference between the two appraisals is less than 20% of the lower
appraised value, then the Appraised Fair Market Value shall be the average of
the two appraisals. If the difference is greater than or equal to 20% of the
lower appraised value, the two appraisers shall engage a third independent
investment banking firm of recognized national standing (the "Third Appraiser"),
which shall appraise the Fair Market Value within 60 days of its engagement. The
Appraised Fair Market Value shall be the average of the two appraised values
which are closest in absolute U.S. dollars. All appraisals of Fair Market Value
shall be as of the date of notice of exercise of the right. The expenses of the
First Appraiser shall be borne by the Company; the expenses of the Second
Appraiser, if any, shall be borne by the Founders; and the expenses of the Third
Appraiser, if any, shall be borne equally by the Company and the Founders.
4. FOREIGN OWNERSHIP RULES
If at any time Brazilian law requires a reduction in the ownership of the
Company by any parties then owning Shares, then
(a) Shares shall be sold on the same date pro rata by all Shareholders
required to sell Shares on the same terms;
(b) such sales shall be at Appraised Fair Market Value, or as close thereto
as achievable under the then-current regulatory conditions;
(c) such sales shall be made only to purchasers acceptable to MIL, which
acceptance shall not be unreasonably withheld; and
(d) the parties shall use their reasonable best efforts to sell such Shares
for cash.
5. CAPITAL CALLS, PREEMPTIVE RIGHTS AND PLEDGES OF COMPANY STOCK
5.1 GRACE PERIOD FOR FOUNDERS
Notwithstanding any capital contributions by any Shareholder to the Company
during the Grace Period, the Founders shall have no obligation to make any pro
rata capital contribution to the Company, and the Shares held by the Founders as
of the date hereof shall retain an aggregate interest in dividends and other
cash or noncash distributions by the Company equal to their aggregate percentage
ownership of the Common Stock (19% as of the date hereof, as such percentage may
be reduced by the issuance of additional shares of Common Stock to any third
party in accordance with Section 5.2) (the "Founders' Percentage"). The issuance
of Common Stock to MIL or its Affiliates in connection with any such capital
contributions shall not
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reduce the Founders' Percentage. To the extent the Shareholders make any capital
contribution to the Company during the Grace Period, the Shareholders shall
simultaneously lend to the Company an amount (a "Shareholders' Loan") equal to
the amount which the Founders would have contributed as capital to the Company
if the Founders had had an obligation to make pro rata capital contributions.
The Shareholders' Loan shall accrue interest at the Prime Rate plus 1%,
compounded quarterly.
5.2 PREEMPTIVE RIGHTS
The Company may at any time issue additional shares of Common Stock to any
third party at fair market value, as determined in good faith by a majority of
the directors of the Company, so long as, after such issuance, the Founders'
Percentage is not reduced to less than 17%. If the Company intends to issue
additional shares of Common Stock to a third party such that the Founders would
own in the aggregate less than 17% of the Common Stock, the Company shall
deliver to the Founders a written notice at least 30 days prior to such proposed
issuance. The Founders shall have the right, exercisable upon irrevocable
written notice delivered to the Company at least 10 days prior to the date of
proposed issuance, to purchase additional shares of Common Stock such that after
such issuance, the Founders would own in the aggregate no more than 17% of the
Common Stock; provided that the Founders may exercise their preemptive rights
only if the Founders in the aggregate exercise such rights with respect to the
maximum number of shares of Common Stock permitted hereunder. If some but not
all of the Founders exercise such right, the number of shares issuable to each
exercising Founder shall bear the same proportion to the aggregate number of
shares issuable to all exercising Founders as the number of shares held by such
exercising Founder prior to such issuance bears to the aggregate of shares held
by all exercising Founders.
5.3 FOUNDERS' "TRUE-UP" OPTION
On or prior to the last day of the Grace Period, the Founders shall have
the option, exercisable by Telcom on behalf of the Founders, to pay to the
Company an amount equal to each Shareholder's Loan plus accrued interest thereon
(together, the "Antidilution Payment"). The Company shall deliver to Telcom a
notice setting forth the calculation of the Antidilution Payment at least 30
days prior to the last day of the Grace Period; provided that the failure of the
Company to deliver such calculation in a timely manner shall not affect the
parties' rights and obligations hereunder; provided, further, that if such
notice is not delivered in a timely manner, Telcom shall pay the Antidilution
Payment upon the later of the last day of the Grace Period and 15 days after
delivery of such notice. Any Antidilution Payment shall be free of all
withholding with respect to taxes of any nature, and if the Founders are
required by applicable law to make any such withholding with respect to any such
payment, such Antidilution Payment shall be increased so that after making all
required withholdings, the Company shall receive an amount equal to the amount
it would have received had such withholdings not been made. Upon receipt in full
of the Antidilution Payment, the Company shall (a) issue to the Founders on a
pro rata basis, based on the number of shares then owned by each Founder, shares
of Common Stock such that the percentage of the Common Stock owned by the
Founders after such transfer equals the Founders' Percentage and (b) repay any
Shareholders' Loans, including accrued interest thereon. If the Founders do not
make the Antidilution Payment on the last day of the Grace Period, (a) the
Founders' interests in dividends and other cash or noncash distributions by the
Company shall thereafter be proportionate to their respective shareholdings in
the Company and (b) the Company shall convert any Shareholders' Loans, including
accrued interest thereon, into shares of Common Stock based on the valuation of
the Common Stock issued to the Shareholders at the time of the relevant
Shareholders' Loan.
5.4 PLEDGES OF COMMON STOCK
If the Company or any of the WVB Affiliates shall enter into a financing
arrangement pursuant to which the lender requires the pledge of all of the
Common Stock as security for such financing, and MIL and its Affiliates agree to
pledge the Common Stock owned by them, then the Founders shall simultaneously
pledge the Common Stock owned by them on the same terms and conditions as MIL
and its Affiliates; provided that such lender shall have no recourse against the
Founders in connection with such financing other than to the Common Stock so
pledged and such pledge shall expressly permit the exercise and consummation of
any
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repurchase right held by a holder of Class B Common Stock pursuant to the
Company's Articles of Incorporation.
6. INTEREST OF SPOUSE
6.1 INTEREST OF SPOUSE SUBJECT TO AGREEMENT
Any property interest in the Shares now owned or hereafter acquired by the
spouse of a Shareholder shall be subject to the terms of this Agreement and
shall be subject to the same restrictions on Transfer described in Section 1 as
if such interests were owned by a Shareholder and as if such spouse were a
Shareholder.
6.2 SIGNATURE OF SPOUSES
Each Shareholder's spouse signing this Agreement acknowledges that he or
she has read this Agreement and understands its contents, specifically this
Section 6. Notwithstanding the foregoing, absence of a spouse's signature hereto
shall not alter the effectiveness hereof or the enforceability of the provisions
contained herein as against such spouse or any Shareholder.
Each spouse acknowledges that he or she has had the opportunity to obtain
separate and independent counsel of his or her own choosing prior to signing
this Agreement and has waived such right. Each spouse agrees that the Shares and
any interest, community or otherwise, he or she has in them are subject to the
provisions of this Agreement. Each spouse also agrees that his or her
Shareholder-spouse may join in any future amendments or modifications of this
Agreement without any further signature, acknowledgment, agreement or consent on
his or her part and he or she designates his or her Shareholder-spouse
attorney-in-fact for this purpose. Furthermore, each spouse agrees to take no
action at any time to hinder the operation of this Agreement as to the Shares in
which he or she has an interest.
7. TERMINATION
This Agreement shall lapse and be of no further force or effect upon the
first of the following to occur:
(a) Merger, Sale or Liquidation. The approval by the Board and the
Shareholders, as required by law and by the Company's Articles of Incorporation
and Bylaws, of the merger of the Company with any other company as a result of
which securities representing all or substantially all of the voting power of
the Company are held by Persons that had less than a majority interest, directly
or indirectly, in such securities prior to such merger, or of the sale of all or
substantially all of the assets of the Company, or of its liquidation.
(b) Agreement of Shareholders. The written agreement of holders of not
less than 97% of the Common Stock to the termination of this Agreement.
(c) Public Offering. The closing of an offering by the Company of its
equity securities to the public pursuant to a registration statement filed
pursuant to the U.S. Securities Act of 1933, as amended (the "Act"), or the
equivalent legislation of another country.
(d) Lapse of Time. The expiration of 21 years after the death of the last
to die of the individual Shareholders named herein.
8. REGISTRATION RIGHTS
8.1 DEFINITIONS
For purposes of these registration rights:
(a) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means any Common Stock held by the
Holders, including Common Stock issued as (or issuable upon the conversion or
exercise of any warrant, right or other security
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which is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, such Common Stock, excluding in all cases,
however, any Registrable Securities sold by a Person in a transaction in which
its rights under this Agreement are not assigned;
(c) The number of shares of "Registrable Securities then outstanding" shall
be determined by the number of shares of Common Stock outstanding which are, and
the number of shares of Common Stock issuable pursuant to then exercisable or
convertible securities which are, Registrable Securities;
(d) The term "Holder" means MIL, the Founders or any of their Affiliates or
permitted transferees; and
(e) The term "Initiating Holders" means the Holders who initiate the
request for registration under Section 8.2(a).
8.2 REQUEST FOR REGISTRATION
(a) If at any time following six months after the closing of the Company's
initial public offering, the Company shall receive a written request from MIL or
any of its Affiliates or from Holders of at least 50% of the Registrable
Securities then held by the Founders that the Company file a registration
statement under the Act covering the registration for an underwritten public
offering of Registrable Securities with estimated aggregate gross proceeds of at
least $10,000,000, based on a good-faith estimate of the market price of the
Common Stock, then the Company shall, within 10 days of the receipt thereof,
give written notice of such request to all Holders and shall, subject to the
limitations contained in this Section 8, effect the registration under the Act
of all Registrable Securities which the Holders request to be registered by
their giving written notice to the Company within 20 days of the mailing by the
Company of its previous notice to the Holders.
(b) The right of any Holder to include its Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company as
provided in Section 8.4(e)) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by a
majority in interest of the Initiating Holders, which underwriter must also be
reasonably acceptable to the Company. Notwithstanding any other provision of
this Section 8.2, if the underwriter advises the Company in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all Holders of Registrable
Securities which would otherwise be underwritten pursuant hereto, and the number
of shares of Registrable Securities that may be included in the underwriting
shall be allocated among all Holders thereof, including the Initiating Holders,
in proportion (as nearly as practicable) to the amount of Registrable Securities
of the Company owned by each Holder.
(c) The Company is obligated to effect only one registration pursuant to
this Section 8.2 on behalf of MIL and its Affiliates and one registration
pursuant to this Section 8.2 on behalf of the Founders, their Affiliates and
permitted transferees; provided that, if the number of Registrable Securities to
be registered by either such group is reduced pursuant to Section 8.2(b) to less
than 75% of the Registrable Securities requested to be registered by such group,
such registration shall not be deemed to be such group's demand registration
pursuant to this Section 8.2(c).
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders
requesting a registration statement pursuant to this Section 8.2 a certificate
signed by the President of the Company stating that, in the good faith judgment
of the Board, it would be seriously detrimental to the Company and its
shareholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, the Company shall
have the right to defer such filing for a period of not more than 90 days after
receipt of the request of the Initiating Holders.
8.3 COMPANY REGISTRATION
If (but without any obligation to do so) the Company proposes to register
(including for this purpose a registration effected by the Company for
shareholders other than the Holders) any of its stock or other securities under
the Act in connection with the public offering of such securities solely for
cash (other than
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a registration relating solely to the sale of securities to participants in a
Company stock plan, or a registration on any form that does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities), the
Company shall, at each such time, promptly give each Holder written notice of
such registration. Upon the written request of each Holder given within 20 days
after mailing of such notice by the Company, the Company shall, subject to the
provisions of Section 8.7, cause to be registered under the Act all of the
Registrable Securities that each such Holder has so requested.
8.4 OBLIGATIONS OF THE COMPANY
Whenever required under this Agreement to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration statement with respect to
such Registrable Securities and use its best efforts to cause such registration
statement to become effective;
(b) Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement;
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of all securities covered by such registration
statement;
(d) Use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or blue sky laws of such
jurisdictions as shall be reasonably requested by the Holders; provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions;
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement; and
(f) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto covered
by such registration statement is required to be delivered under the Act, of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
8.5 FURNISH INFORMATION
It shall be a condition precedent to the obligations of the Company to take
any action pursuant to this Agreement that the selling Holders shall furnish to
the Company such information regarding themselves, the Registrable Securities
held by them and the intended method of disposition of such securities as shall
be reasonably required to effect the registration of their Registrable
Securities and to execute such documents in connection with such registration as
the Company may reasonably request.
8.6 EXPENSES OF REGISTRATION
In connection with any registration pursuant to this Agreement, the Company
shall be responsible for the payment of all expenses of the registration, with
the exception of underwriting commissions and discounts which shall be paid by
the Company, the Holders and any other selling security holders in proportion to
the aggregate value of the securities offered for sale by each of them.
Notwithstanding the preceding sentence, Holders participating in a registration
pursuant to Section 8.2 shall be responsible for the payment of all expenses
directly related to such registration.
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8.7 UNDERWRITING REQUIREMENTS
The Company shall not be required under Section 8.3 to include any of the
Holders' securities in an underwritten offering of the Company's securities
unless such Holders accept the terms of the underwriting as agreed upon between
the Company and the underwriters selected by it. If the total amount of
securities, including Registrable Securities, requested by Holders to be
included in such offering exceeds the amount of securities that the underwriters
reasonably believe compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, that the underwriters believe will
not jeopardize the success of the offering. The securities to be included in the
registration in the event of such a reduction shall be apportioned first to the
Company, then pro rata among the selling Holders according to the total amount
of securities requested to be sold in such registration by such Holders, or in
such other proportions as shall mutually be agreed to by such selling Holders.
8.8 DELAY OF REGISTRATION
No Holder shall have any right to obtain or seek an injunction restraining
or otherwise delaying any such registration as the result of any controversy
that might arise with respect to the interpretation or implementation of this
Agreement.
8.9 INDEMNIFICATION
In the event any Registrable Securities are included in a registration
statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder, the partners, officers, agents, employees and directors of
each Holder, any underwriter (as defined in the Act) for such Holder and each
Person, if any, who Controls (as defined in the Merger Agreement) such Holder or
underwriter within the meaning of the Act or the U.S. Securities Exchange Act of
1934, as amended (the "1934 Act"), against any losses, claims, damages or
liabilities (joint or several) to which they may become subject under the Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations (collectively, a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein, in light of the circumstances
under which they were made, or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (iii) any violation
or alleged violation by the Company of the Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Act, the 1934 Act
or any state securities law; and the Company will reimburse each such Holder,
partner, officer, agent, employee or director, underwriter or Controlling Person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section 8.9(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, nor shall the Company
be liable in any such case for any such loss, claim, damage, liability or action
to the extent that it arises out of or is based upon a Violation occurring in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by, or on behalf of, any such Holder,
underwriter or Controlling Person.
(b) To the extent permitted by law, each selling Holder will indemnify and
hold harmless the Company, each of its officers, directors, agents or employees,
each Person, if any, who Controls the Company within the meaning of the Act, any
underwriter and any other Holder selling securities in such registration
statement or any of its partners, officers, directors, agents or employees or
any Person who Controls such Holder, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such officer,
director, agent, employee, Controlling Person, or underwriter, or other such
Holder or its partner, officer, director, agent, employee or Controlling Person
may become subject, under the Act, the 1934 Act or other federal or
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state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by, or on behalf of, such
Holder expressly for use in connection with such registration; and each such
Holder will reimburse any legal or other expenses reasonably incurred by the
Company or any such partner, officer, director, agent, employee, Controlling
Person, underwriter or other such Holder, partner, officer, director, agent,
employee or Controlling Person in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 8.9(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this Section 8.9
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 8.9, deliver to the indemnifying party
a written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, 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 the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if, in
the opinion of counsel for the indemnifying party, representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable period of time of the commencement of any such action shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 8.9 to the extent prejudicial to its ability to defend such action,
but the omission so to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party otherwise
than under this Section 8.9.
8.10 "MARKET STAND-OFF" AGREEMENT
The Holders hereby agree that they shall not, to the extent reasonably
requested by the Company and an underwriter of Common Stock (or other
securities) of the Company, sell or otherwise transfer or dispose of (other than
to donees who agree to be similarly bound) any Registrable Securities for 180
days following the effective date of a registration statement of the Company
filed under the Act; provided, however, that all officers and directors of the
Company and all other Persons with registration rights (whether or not pursuant
to this Agreement) enter into similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of the
Holders (and the shares or securities of every other Person subject to the
foregoing restriction) until the end of such period.
8.11 RIGHT TO TERMINATE REGISTRATION
The Company shall have the right to terminate or withdraw any registration
initiated by it under this Section 8 prior to the effectiveness of such
registration whether or not any Holder has elected to include securities in such
registration.
9. NONCOMPETITION
Each Shareholder agrees that, until one year following termination of this
Agreement with respect to such Shareholder, neither such Shareholder nor any
Affiliate Controlled by such Shareholder 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
Specialized Mobile Radio or paging in Brazil, other than wireless radio
engineering, design or program management services and the manufacture and sale
of related software and hardware products; provided that
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neither any Shareholder nor any Affiliate Controlled by such Shareholder may
maintain an equity interest in any Person in which it owns an equity interest as
of the date hereof, which equity interest entitles any Shareholder or any
Affiliate Controlled by such Shareholder to control of policymaking or
day-to-day operations of such Person or in connection with which any Shareholder
or any Affiliate Controlled by such Shareholder has a representative on the
board of directors, if such Person elects to engage in the business of cellular
communications or Personal Communications Systems in Brazil.
10. MISCELLANEOUS
10.1 SPECIFIC ENFORCEMENT
Each Shareholder expressly agrees that the Company and the other
Shareholders will be irreparably damaged if this Agreement is not specifically
enforced. Upon a breach or threatened breach of the terms, covenants and/or
conditions of this Agreement by any Shareholder, each of the Company and the
other Shareholders shall, in addition to all other remedies, be entitled to a
temporary or permanent injunction, without showing any actual damage, and/or a
decree for specific performance, in accordance with the provisions of this
Agreement.
10.2 LEGEND
Each certificate evidencing any Shares shall bear a legend substantially as
follows:
The securities represented by this certificate are subject to the terms and
conditions of the Shareholders Agreement among the Company and its Shareholders
dated as of , 199 , as at any time amended, and may not be sold,
transferred or encumbered except in accordance with the terms and provisions of
such Agreement, a copy of which is on file at the principal executive office of
the Company and will be furnished to the holder of this certificate upon request
and without charge.
10.3 DELIVERY OF INFORMATION
The Company shall deliver to each Shareholder and upon written request to
any other Shareholder of the Common Stock:
(a) as soon as practicable, but in any event within 120 days after the end
of each fiscal year of the Company, an income statement for such fiscal year, a
balance sheet of the Company as of the end of such year and a statement of cash
flows for such year, such financial statements to be prepared in accordance with
U.S. generally accepted accounting principles and audited by independent
certified public accountants of nationally recognized standing selected by the
Company, and
(b) as soon as practicable, but in any event within 60 days after the end
of each of the first three fiscal quarters, an income statement for such fiscal
quarter, a balance sheet of the Company as of the end of such quarter and a
statement of cash flows for such quarter, such financial statements to be
prepared in accordance with U.S. generally accepted accounting principles and
any other operating information provided to the Board.
10.4 INSPECTION
The Company shall permit each Shareholder owning more than 5% of the Common
Stock at such Shareholder's expense to visit and inspect the Company's
properties, to examine its books of accounts and records and to make copies and
extracts therefrom, and to discuss the Company's business prospects, affairs,
finances and accounts with its officers, all at such reasonable times as may be
requested by such Shareholder and for purposes reasonably related to the
business of the Company.
10.5 COMPLIANCE WITH LAWS
Each Shareholder represents, warrants and covenants that it and any
director, officer, agent, employee or other Person acting on its behalf or on
behalf of any Affiliate of it (a) have not been and will not be involved in the
offering, paying or giving of anything of value, either directly or indirectly,
to a government official,
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political party or candidate for political office to influence such Person or
entity in the discharge of his, her or its official duties, (b) have not engaged
and will not engage in any such unlawful conduct during the time of carrying out
their duties, and (c) have maintained and will maintain accounting books and
records in reasonable detail and institute internal controls to ensure that such
books and records accurately reflect corporate transactions and the disposition
of assets.
10.6 NOTICES
Notices given hereunder shall be deemed to have been duly given on the date
of personal delivery, on the date of facsimile transmittal (provided the
addressor confirms receipt of any facsimile by the addressee), on the day after
delivery by overnight courier or three days after mailing if mailed by certified
or registered mail, return receipt requested, postage prepaid, to the party
being notified at his, her or its address specified on the applicable signature
page or such other address of which the addressee may subsequently notify the
other parties in writing.
10.7 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS
This Agreement constitutes the entire agreement of the parties with respect
to the subject matter hereof, and neither this Agreement nor any provision
hereof may be waived, modified, amended or terminated except by a written
agreement signed by the Company and holders of 97% of the Common Stock;
provided, however, that any new shareholder of the Company may execute this
Agreement without the consent of the Founders. No waiver of any breach or
default hereunder shall be considered valid unless in writing, and no such
waiver shall be deemed a waiver of any subsequent breach or default of the same
or similar nature.
10.8 GOVERNING LAW; SUCCESSORS AND ASSIGNS
This Agreement shall for all purposes be governed by and construed in
accordance with the laws of the state of Virginia and shall be binding upon the
heirs, personal representatives, executors, administrators, successors and
permitted assigns of the parties. Each of the parties hereto (a) consents to
submit itself to the personal jurisdiction of any federal court located in the
state of Virginia or any Virginia state court if any dispute arises out of this
Agreement or any of the transactions contemplated by 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 state of Virginia or a Virginia state court.
10.9 HEADINGS
The headings of the sections of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
10.10 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall constitute an original, but all of which together shall constitute one and
the same instrument.
10.11 SEVERABILITY
If any provision of this Agreement shall be held to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render illegal, invalid
or unenforceable any other provision of this Agreement, and this Agreement shall
be carried out as if any such illegal, invalid or unenforceable provision were
not contained herein.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
THE COMPANY:
XxXXX INTERNATIONAL (BRAZIL), LTD.
By
---------------------------------
Its
-----------------------------
Address:
Facsimile number:
THE SHAREHOLDERS:
XxXXX INTERNATIONAL, LTD.
By
---------------------------------
Its
-----------------------------
Address: 0000 Xxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile number: (000) 000-0000
THE FOUNDERS:
TELCOM VENTURES, LLC
By
---------------------------------
Its
-----------------------------
Address: Arlington Courthouse Plaza II
0000 Xxxxxxxxx Xxxxxxxxx,
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile number: (000) 000-0000
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below approves this Agreement and constitutes and appoints , and ,
duly authorized officers of Telcom Ventures, LLC, and each of them, his, her or
its true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him, her or it and in his, her or its name, place and
stead, in any and all capacities, to take all actions hereunder, including the
signing of any and all amendments hereto, granting unto said attorneys-in-fact
and agents and each of them full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he, she or it might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his, her or its substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
SOUTH BEACH VENTURES INC.
By
---------------------------------
Its
-----------------------------
Address:
Facsimile number:
--------------------------------------
XXXXXXXX XXXXX
Address:
Facsimile number:
--------------------------------------
XXXXX XXXXX
Address:
Facsimile number:
THE XXXXX XXX XXXXX EDUCATION TRUST
By
----------------------------------
Its
------------------------------
Address:
Facsimile number:
THE SAMIR XXX XXXXX EDUCATION TRUST
By
----------------------------------
Its
------------------------------
Address:
Facsimile number:
--------------------------------------
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XXXXXX XXXXX
Address:
Facsimile number:
--------------------------------------
XXXXXXX XXXXXX
Address:
Facsimile number:
[Include signatures of spouses of
shareholders at date of signing]
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EXHIBIT I
SCHEDULE OF SHAREHOLDERS
SHAREHOLDERS NUMBER OF SHARES OF COMMON STOCK
--------------------------------------------- ---------------------------------------------
Shareholder Number of Shares of Common Stock
XxXxx International, Ltd 7,317,621 shares of Class A Common Stock
Telcom Ventures, LLC 1,140,000 shares of Class B Common Stock
South Beach Ventures Inc 195,700 shares of Class B Common Stock
Xxxxxxxx Xxxxx 95,000 shares of Class B Common Stock
Xxxxx Xxxxx 95,000 shares of Class B Common Stock
The Xxxxx Xxx Xxxxx Education Trust 95,000 shares of Class B Stock
The Samir Xxx Xxxxx Education Trust 95,000 shares of Class B Common Stock
Xxxxxx Xxxxx 589 shares of Class B Common Stock
Xxxxxxx Xxxxxx 190 shares of Class B Common Stock
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