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EXHIBIT 10.5
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") dated as of March 17,
1998 by and among Nextel International (Japan), Ltd., a Delaware corporation
("Nextel Japan"), Nippon Motorola Ltd., a company organized under the laws of
Japan ("NML"), and J-Com Co., Ltd., a joint stock company organized under the
laws of (the "Company"). The parties hereto may be referred to herein
individually as a "Party" or collectively as the "Parties," as the case may
require.
W I T N E S S E T H:
WHEREAS, NML is the owner of 1,544 shares of common stock, par value
50,000 Yen per share of the Company (the "Shares"), which represents 21% of the
issued and outstanding shares of capital stock of the Company; and
WHEREAS, NML desires to sell, and Nextel Japan desires to purchase the
Shares subject to the terms and conditions contained in this Agreement.
NOW, THEREFORE, IT IS AGREED:
ARTICLE I
SALE OF STOCK
1.1 Sale of Stock. Subject to the terms and conditions herein stated,
NML agrees to sell, assign, transfer and deliver to Nextel Japan on the Closing
Date (as hereinafter defined), and Nextel Japan agrees to purchase from NML on
the Closing Date 1,544 shares of the common stock of the Company. The
certificates representing the Shares shall be duly endorsed in blank, or
accompanied by stock powers duly executed in blank, by NML.
1.2 Price. In full consideration for the purchase by Purchaser of the
Shares, Purchaser shall pay to NML on the Closing Date an aggregate of Yen
77,200,000 in immediately available funds.
1.3 Closing. The sale referred to in Section 4.1 shall take place at
10:00 A.M. at the offices of the Company, 00-0, Xxxxxx-Xxxxx 0-xxxxx, Xxxxxx-xx,
Xxxxx 000, Xxxxx on March __, 1998, or at such other time and date as the
Parties hereto shall by written instrument designate. Such time and date are
herein referred to as the "Closing Date."
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ARTICLE II
REPRESENTATIONS OF NML
NML represents and warrants to Nextel Japan as follows:
2.1 Ownership of Shares. NML has good and marketable title to the
Shares, free and clear of all liens, claims, encumbrances and restrictions
except as set forth in that certain Shareholders' Agreement dated December 15,
1997 (the "Shareholders Agreement") by and among the Company, NML, DJSMR
Business Partnership ("DJSMR"), Nichimen Corporation ("Nichimen") and ORIX
Corporation ("ORIX").
2.2 Existence and Good Standing of NML: Power and Authority. NML is a
corporation duly organized, validly existing and in good standing under the laws
of Japan. NML has the corporate power and authority to make, execute deliver and
perform this Agreement, and this Agreement has been duly authorized and approved
by all required corporate action of NML, and has been duly executed and
delivered by NML and is enforceable against NML in accordance with its terms.
2.3 Shareholders' Agreement. The representations and warranties of NML
set forth in Article XVII of the Shareholders' Agreement are true and correct as
of the date hereof and shall be true and correct as of the Closing Date as
though made on and as of such dates, except to the extent that any such
representation or warranty expressly relates to an earlier date.
ARTICLE III
REPRESENTATIONS OF THE COMPANY
The Company represents and warrants to Nextel Japan as follows:
3.1 Capital Stock. The Company has an authorized capitalization
consisting of 14,400 shares of common stock, 50,000 Yen par value per share, of
which 7,350 shares are issued and outstanding.
3.2 Existence and Good Standing of the Company: Power and Authority.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of Japan. The Company has the corporate power and
authority to make, execute deliver and perform this Agreement, and this
Agreement has been duly authorized and approved by all required corporate action
of the Company, and has been duly executed and delivered by the Company and is
enforceable against the Company in accordance with its terms.
3.3 Shareholders' Agreement. The representations and warranties of the
Company set forth in Article XVII of the Shareholders' Agreement are true and
correct as of the date hereof and shall be true and correct as of the Closing
Date as though made on and as of such dates, except to the extent that any such
representation or warranty expressly relates to an earlier date.
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ARTICLE IV
REPRESENTATIONS OF NEXTEL JAPAN
Nextel Japan represents and warrants to NML and the Company as follows:
4.1 Existence and Good Standing of Nextel Japan: Power and Authority.
Nextel Japan is a corporation duly organized, validly existing and in good
standing under the laws of Delaware. Nextel Japan has the corporate power and
authority to make, execute, deliver and perform this Agreement, and this
Agreement has been duly authorized and approved by all required corporate action
of Nextel Japan, and has been duly executed and delivered by Nextel Japan and is
enforceable against Nextel Japan in accordance with its terms.
4.2 Shareholders' Agreement. The representations and warranties of the
Shareholders set forth in Article XVII of the Shareholders' Agreement are true
and correct as to Nextel Japan as of the date hereof and shall be true and
correct as of the Closing Date as though made on and as of such dates.
ARTICLE V
CONDITIONS TO NEXTEL JAPAN'S OBLIGATIONS
The purchase of the Shares by Nextel Japan on the Closing Date is
conditioned upon satisfaction, on or prior to such date, of the following
conditions:
5.1 Truth of Representations and Warranties. The representations and
warranties of NML and the Company contained in this Agreement shall be true and
correct on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date.
5.2 No Litigation Threatened. No action or proceedings shall have been
instituted before a court or other governmental body or by any public authority
to restrain or prohibit any of the transactions contemplated hereby.
5.3 Approvals. All filings with and notices to, and all
authorizations, licenses, permits, consents and approvals of, any governmental
or regulatory authority or any third party, if any, necessary to permit the
consummation of the transactions contemplated by this Agreement shall have been
duly made or received.
5.4 Shareholders' Agreement Amendment. The Company, NML, DJSMR,
Nichimen and ORIX shall have duly executed and delivered the Memorandum, which
amends the Shareholders' Agreement, substantially in the form of Exhibit A
hereto.
5.5 Voting Agreement. DJSMR and Nextel Japan shall have duly executed
and delivered a side letter agreement with respect to the appointment of the
director to be jointly
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designated by DJSMR and Nextel Japan, substantially in the form of Exhibit B
hereto.
5.6 Proceedings. All proceedings to be taken in connection with the
transactions contemplated by this Agreement and the offer letter dated November
7, 1997 and all documents incident thereto shall be satisfactory in form and
substance to Nextel Japan and its counsel, and Nextel Japan shall have received
copies of all such documents and other evidences as it or its counsel may
reasonably request in order to establish the consummation of such transactions
and the taking of all proceedings in connection therewith.
ARTICLE VI
CONDITIONS TO NML'S OBLIGATIONS
The sale of the Shares by NML on the Closing Date is conditioned upon
satisfactions, on or prior to such date, of the following conditions:
6.1 Truth of Representations and Warranties. The representations and
warranties of Nextel Japan contained in this Agreement shall be true and correct
on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date.
6.2 No Litigation Threatened. No action or proceedings shall have been
instituted before a court or other governmental body or by any public authority
to restrain or prohibit any of the transactions contemplated hereby
6.3 Approvals. All filings with and notices to, and all
authorizations, licenses, permits, consents and approvals of, any governmental
or regulatory authority or any third party, if any necessary to permit the
consummation of the transactions contemplated by this Agreement shall have been
duly made or received.
6.4 Agreement to be Bound by Shareholders' Agreement. Nextel Japan
shall have duly executed and delivered a side letter agreement pursuant to which
it agrees to comply with and be bound by the terms and conditions of the
Shareholders' Agreement, substantially in the form of Exhibit C hereto.
6.5 Proceedings. All proceedings to be taken in connection with the
transactions contemplated by this Agreement and the offer letter dated November
7, 1997 and all documents incident thereto shall be satisfactory in form and
substance to NML and its counsel, and NML shall have received copies of all such
documents and other evidences as it or its counsel may reasonably request in
order to establish the consummation of such transactions and the taking of all
proceedings in connection therewith, including, without limitation, the letter
agreement regarding equipment guarantees substantially in the form of Exhibit D
hereto.
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ARTICLE VII
MISCELLANEOUS
7.1 Expenses. The Parties hereto shall pay all of their own expenses
relating to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective legal counsel and
financial advisers.
7.2 Governing Law. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the laws of
Japan without regard to its conflict of laws doctrine.
7.3 Mediation; Litigation. All disputes under this Agreement shall be
settled in accordance with the procedures set forth in the Shareholders'
Agreement.
7.4 Captions. The Article and Section captions used herein are for
reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
7.5 Publicity. Except as otherwise required by applicable law or
regulation, none of the Parties hereto shall issue any press release or make any
other public statement, in each case relating to, connected with or arising out
of this Agreement or the matters contained herein, without obtaining the prior
written approval of Nextel Japan and NML to the contents and the manner of
presentation and publication thereof.
7.6 Notices. All notices, requests, demands or other communications
hereunder shall be in writing and shall be deemed to have been duly given when
delivered or when received if notice is given by facsimile or within five days
after deposited in the mails, postage prepaid, addressed as follows or to such
other address as shall have been designated in writing by the Party to receive
notice:
If to NML, to:
Nippon Motorola Ltd.
00-0, Xxxxxx-Xxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx 000
Xxxxx
Attention: Law Department
Fax No.: 000-0000-0000
If to Nextel Japan, to:
Nextel International (Japan), Ltd.
c/o Nextel International, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: General Counsel
Fax No.: 000-000-0000
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7.7 Parties in Interest. This Agreement may not be transferred,
assigned, pledged or hypothecated by any Party hereto. This Agreement shall be
binding upon and shall inure to the benefit of the Parties hereto and their
respective heirs, executors, administrators, successors and assigns.
7.8 Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
7.9 Entire Agreement. This Agreement, including the other documents
referred to herein which form a part hereof, (a) constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
written and oral, among the Parties, with respect to the subject matter hereof;
(b) is not intended to confer upon any person not a party hereto any rights or
remedies hereunder; and (c) shall not be assigned by operation of law or
otherwise.
7.10 Amendments. This Agreement may not be changed orally, but only by
an agreement in writing signed by each of the Parties.
7.11 Severability. In case any provision in this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
7.12 Termination of Agreement. All Parties hereto agree to use their
reasonable best efforts to fulfill the requirements of Article V and VI as soon
as practicable. If any precondition to the completion of the transactions
contemplated hereby is not fulfilled on or prior to March 31, 1998, this
Agreement shall be null and void and have no further effect.
IN WITNESS WHEREOF, the parties have caused this Memorandum to be
signed on its behalf by its duly authorized representative as of the date first
set forth above.
NEXTEL INTERNATIONAL (JAPAN), LTD.
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
--------------------------------
Title: Vice President
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NIPPON MOTOROLA LTD.
By: /s/ XXXXX XXXX
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Name: Xxxxx Xxxx
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Title: President and Representative Director
J-COM CO., LTD.
By: /s/ XXX XXXXXXXXXX
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Name: Xxx Xxxxxxxxxx
Title: Representative Director and President
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EXHIBIT A
MEMORANDUM
This MEMORANDUM is made and entered into as of March __, 1998 by and
among J-COM Co., Ltd., a joint stock company organized under the laws of Japan
(the "Company"), DJSMR Business Partnership, a partnership organized under the
laws of Japan ("DJSMR Partnership"), Nippon Motorola Ltd., a company organized
under the laws of Japan and a wholly-owned subsidiary of Motorola, Inc. ("NML"),
Nichimen Corporation, a company organized under the laws of Japan ("Nichimen")
and ORIX Corporation, a company organized under the laws of Japan ("ORIX").
WHEREAS, the parties hereto entered into a certain Shareholders'
Agreement regarding the Company on December 15, 1997, as amended (the
"Shareholders' Agreement");
WHEREAS, Nextel International (Japan), Ltd. ("Nextel Japan") has
expressed its desire to become a Shareholder in accordance with the terms of the
Shareholders' Agreement, replacing NML as a Shareholder thereunder; and
WHEREAS, in order for Nextel Japan to be able to become a Shareholder
under the Shareholders' Agreement certain terms of the Shareholders' Agreement
must be modified to satisfy certain of Nextel International, Inc.'s indenture
requirements, as set forth in this Memorandum.
NOW THEREFORE, in consideration of the mutual covenants,
representations and warranties and subject to the terms and conditions contained
herein, the parties hereto agree as follows:
Section 1. Definitions. Unless otherwise defined herein, capitalized
terms used herein without definition shall have the same meanings as set forth
in the Shareholders' Agreement.
Section 2. Limitation on Restricted Payments. Notwithstanding anything to the
contrary in the Shareholders' Agreement, the affirmative votes of six (6) of the
Directors shall be required for any investment individually or in the aggregate
with all other investments to be made simultaneously in excess of 3,000,000,000
Yen, other than the following by the Company:
(a) direct obligations of the United States of America or any agency
thereof or obligations fully and unconditionally guaranteed by the
United States of America or any agency thereof;
(b) time deposit accounts, certificates of deposit and money market
deposits
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maturing within 180 days of the date of acquisition thereof issued by a
bank or trust company which is organized under the laws of the United
States of America, any state thereof or any foreign country recognized
by the United States, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of U.S. $50 million
(or the foreign currency equivalent thereof) and has outstanding debt
which is rated "A" (or such similar equivalent rating) or higher by at
least one internationally recognized statistical rating organization
(provided such internationally recognized statistical rating
organization's "A" rating is substantially similar to the "A" rating of
at least one U.S. nationally recognized statistical rating
organization) or any money-market fund sponsored by a registered broker
dealer or mutual fund distributor;
(c) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above
entered into with a bank meeting the qualifications described in clause
(b) above;
(d) commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation (other than an Affiliate of one of
the Shareholders) organized and in existence under the laws of the
United States of America, any state thereof or any foreign country
recognized by the United States of America with a rating at the time as
of which any investment therein is made of "P-1" (or higher)" according
to Xxxxx'x Investor Service, Inc. or its successors ("Moody's") or
"A-1" (or higher) according to Standard & Poor's Ratings Services or
its successors ("S&P"); and
(e) securities with maturities of six months or less from the date of
acquisition issued or fully and unconditionally guaranteed by any
state, commonwealth or territory of the United States of America, or by
any political subdivision or taxing authority thereof, and rated at
least "A" by S&P or Moody's.
For purposes hereof, "investment" shall mean, as to any Person, any advance,
loan or other extension of credit or capital contribution to such Person or any
purchase or acquisition of capital stock, bonds, notes, debentures or other
similar instruments issued by such Person.
Section 3. Restrictions on Dividends. Notwithstanding anything to the contrary
in the Shareholders' Agreement, the payment of dividends by the Company to the
Shareholders shall be decided at a meeting of Shareholders by the affirmative
vote of a majority of the outstanding Shares, and the payment of interim
dividends by the Company to the Shareholders shall be decided at a Board of
Directors meeting by the affirmative vote of a majority of the Directors;
provided, however, that the payment of dividends or interim dividends by the
Company to the Shareholders shall require the affirmative vote of two-thirds of
the outstanding Shares at a meeting of Shareholders or of six (6) of the
Directors at a Board of Directors meeting, respectively, in the event any of the
Initial Loans, the Initial Leases, the Nippon Motorola Loan or any other loans
to the Company from the Shareholders remain outstanding.
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Section 4. Limitations on Indebtedness and Liens. Notwithstanding anything to
the contrary in the Shareholders' Agreement, the Company shall notify Nextel
Japan whenever the Company intends to incur any Indebtedness or create any Liens
other than those of which the affirmative vote of six (6) or more Directors is
required under Section 5.5 (iv), (v), (vi) or (xvi) of the Shareholders'
Agreement, as soon as possible prior to the incurrence of such Indebtedness or
the creation of such Liens. Notwithstanding anything to the contrary in the
Shareholders' Agreement, the term "Indebtedness" shall also include (a)
obligations in respect of letters of credit or other similar instruments
(including reimbursement obligations with respect thereto, but excluding
obligations with respect to (i) letters of credit securing obligations entered
into in the ordinary course of business to the extent such letters of credit are
not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no
later than three business days following such demand and (ii) letters of credit
secured by cash collateral to the extent secured thereby, (b) obligations in
respect of the deferred and unpaid purchase price of property or services due
more than six months after the date such property is delivered or such service
is completed, (c) obligations in respect of capitalized leases, and (d)
obligations in respect of foreign exchange contracts, currency swap agreements,
interest rate protection agreements, interest rate future agreements, interest
rate option agreements, interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements, interest rate hedge agreements or
other similar agreements or arrangements.
Section 5. Limitations on Sale-Leaseback Transactions. Notwithstanding
anything to the contrary in the Shareholders' Agreement, the affirmative votes
of six (6) of the Directors shall be required for any sale-leaseback transaction
by the Company if the term of the lease is for three years or greater; provided
that this restriction does not apply to such lease agreements and agreements
related thereto (including debt assumption agreements and assignments regarding
the contractor agreements) that have been approved in the Annual Business Plan.
Section 6. Conditions for the Amendments. The above amendments and
modifications to the Shareholders' Agreement shall be effective only to the
extent that Nextel Japan is a Shareholder of the Company and Nextel
International, Inc.'s indenture requirements require such modifications in order
to avoid default thereunder.
Section 7. Consent. By execution hereof, each of the parties hereto gives
its consent to have Nextel Japan become a Shareholder under the Shareholders'
Agreement in place of NML.
Section 8. No Other Change. Unless expressly stated herein, the terms and
conditions of the Shareholders' Agreement shall remain unchanged. All references
to the Shareholders' Agreement shall mean the Shareholders' Agreement as amended
and modified by this Memorandum.
Section 9. Counterparts. This Memorandum may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original,
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but all such counterparts shall together constitute but one and the same
document.
Section 10. Governing Law. The laws of Japan shall apply to this Memorandum.
This Memorandum and the obligations of the parties hereto are subject to all
applicable laws, rules, court decisions, orders and regulations of Japanese
governmental authorities having jurisdiction; and in the event of conflict, said
laws, rules court decisions, orders and regulations of governmental authorities
having jurisdiction shall control.
Section 11. Language. This Memorandum has been made both in Japanese and
English and both the Japanese and English versions shall be originals, provided
that the Japanese version shall control.
IN WITNESS WHEREOF, the parties have caused this Memorandum to be
signed on its behalf by its duly authorized representative as of the date first
set forth above.
J-COM CO., LTD.
By:
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Name: Xxx Xxxxxxxxxx
Title: Representative Director and President
DJSMR BUSINESS PARTNERSHIP
By: Nippon Motorola Ltd.
Executive Partner
By:
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Name: Xxxxxxx X. Xxxxxx
Title: General Manager
Land Mobile Products Division
NIPPON MOTOROLA LTD.
By:
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Name: Xxxxx Xxxx
Title: President and Representative Director
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NICHIMEN CORPORATION
By:
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Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
Senior General Manager
Plant & Project Division
ORIX CORPORATION
By:
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Name: Xxxxxxx Xxxxxxxxx
Title: Deputy General Manager
Computer Communications Department
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EXHIBIT B
LETTER REGARDING DIRECTOR ELECTION
March __, 1998
Nextel International (Japan), Ltd.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Re: J-Com Co., Ltd.
Ladies and Gentlemen:
Reference is made to the Shareholders' Agreement dated December 15,
1997 (the "Shareholders' Agreement") by and among J-Com Co., Ltd., a joint stock
company organized under the laws of Japan (the "Company"), DJSMR Business
Partnership, a partnership organized under the laws of Japan ("DJSMR"), Nippon
Motorola Ltd., a company organized under the laws of Japan ("NML"), Nichimen
Corporation, a company organized under the laws of Japan and ORIX Corporation, a
company organized under the laws of Japan.
On the date hereof, NML is selling all of its interest in the Company
to Nextel International (Japan), Ltd., a Delaware corporation ("Nextel Japan")
pursuant to that certain Stock Purchase Agreement by and among NML, Nextel Japan
and the Company (the "Stock Purchase Agreement") and NML has agreed to be bound
by the Shareholders' Agreement as a Shareholder thereunder. This letter is
delivered pursuant to Section 5.5 of the Stock Purchase Agreement.
Pursuant to the terms of Section 5.1 of the Shareholders' Agreement,
following consummation of the Stock Purchase Agreement, in addition to the
members of the Board of Directors of the Company that each party will be
entitled to designate pursuant to the Shareholders Agreement, DJSMR and Nextel
Japan will be entitled to designate together one member of the Board of
Directors of the Company (the "Joint Designee") upon mutual consultation in good
faith. DJSMR hereby agrees to allow Nextel Japan to designate such Joint
Designee, which Joint Designee shall be subject to the approval by DJSMR which
will not be unreasonably withheld.
In addition, DJSMR and NML agree to nominate and support a Nextel Japan
representative to the JAMTA Board of Counselors and to support a Nextel Japan
nominee for the
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next available seat on the JAMTA Board of Directors.
Please acknowledge your agreement with the foregoing by executing this
letter in the space indicated below.
Very truly yours,
DJSMR BUSINESS PARTNERSHIP
By: Nippon Motorola Ltd.
Executive Partner
By:
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Name: Xxxxxxx X. Xxxxxx
Title: General Manager
Land Mobile Products Division
Acknowledged and agreed to:
NIPPON MOTOROLA LTD.
By:
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Name: Xxxxxxx X. Xxxxxx
Title: General Manager
Land Mobile Products Division
NEXTEL INTERNATIONAL (JAPAN), LTD.
By:
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Name:
--------------------------------
Title:
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EXHIBIT C
LETTER REGARDING SHAREHOLDERS' AGREEMENT
March __, 1998
To: DJSMR Business Partnership
Nichimen Corporation
ORIX Corporation
Re: J-Com Co., Ltd.
Ladies and Gentlemen:
We are pleased to inform you that on the date hereof Nextel
International (Japan), Ltd. ("Nextel Japan") and Nippon Motorola Ltd. ("NML")
entered into that certain Stock Purchase Agreement (the "Stock Purchase
Agreement") whereby Nextel Japan has acquired the 1,544 shares (the "Shares") of
J-COM Co., Ltd. (the "Company") previously owned by NML. This letter is being
delivered pursuant to Section 6.4 of the Stock Purchase Agreement
The purpose of this letter is to inform the existing Shareholders of
the Company of Nextel Japan's agreement to comply with and be bound by the terms
of the Shareholders' Agreement dated December 15, 1997 among the Company, DJSMR
Business Partnership, NML, Nichimen Corporation and ORIX Corporation, as amended
(the "Shareholders' Agreement").
Nextel Japan hereby assumes all of the rights, duties and obligations
of a Shareholder (as defined in the Shareholders' Agreement) of the Company
under the Shareholders' Agreement and acknowledges and agrees from and after the
date hereof and so long as it owns any of the Shares that it shall comply with
and be bound by all of the terms and conditions of the Shareholders' Agreement.
In addition, Nextel International, Inc., a Delaware corporation ("NII")
hereby agrees that it shall be responsible to the Company and the Shareholders
for all of Nextel Japan's duties and obligations under the Shareholders'
Agreement and guarantees the performance by Nextel Japan of all of Nextel
Japan's duties and obligations under the Shareholders' Agreement. If Nextel
Japan shall have defaulted in the payment when due of any amount required to be
paid by Nextel Japan under the Shareholders' Agreement, and such default shall
remain uncured ten days following written notice by J-Com or any other
Shareholder, then NII shall within five days after delivery of written notice
pay the amount not so paid.
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NII agrees that the restrictions on the Transfer (as such terms is
defined in the Shareholders' Agreement) of Shares (as defined in the
Shareholders' Agreement) set forth in the Shareholders' Agreement shall apply,
mutatis mutandis, to the transfer of equity securities of Nextel Japan as if
such securities were Shares and NII shall take all actions necessary to cause
its direct and indirect subsidiaries to comply with the provision of the
Shareholders' Agreement in connection with any such Transfer.
Very truly yours,
NEXTEL INTERNATIONAL (JAPAN), LTD.
By:
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Name:
--------------------------------
Title:
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NEXTEL INTERNATIONAL, INC.
By:
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Name:
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Title:
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EXHIBIT D
LETTER REGARDING GUARANTEES
March __, 1998
Nextel International, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Re: J-Com Co., Ltd.
Ladies and Gentlemen:
Reference is made to the Shareholders' Agreement dated December 15,
1997, as amended (the "Shareholders' Agreement") by and among J-Com Co., Ltd., a
joint stock company organized under the laws of Japan (the "Company"), DJSMR
Business Partnership, a partnership organized under the laws of Japan ("DJSMR"),
Nippon Motorola Ltd., a company organized under the laws of Japan ("NML"),
Nichimen Corporation, a company organized under the laws of Japan and ORIX
Corporation, a company organized under the laws of Japan. Reference is also made
to that certain offer letter and related J-Com Ltd Investment Term Sheet dated
November 7, 1997 (the "Offer Letter").
On the date hereof, NML is selling all of its interest in the Company
to Nextel International (Japan), Ltd., a Delaware corporation ("Nextel Japan")
pursuant to that certain Stock Purchase Agreement by and among NML, NII and the
Company (the "Stock Purchase Agreement") and NML has agreed to be bound by the
Shareholders' Agreement as a Shareholder thereunder. This letter is delivered
pursuant to Section 6.5 of the Stock Purchase Agreement.
Nextel Japan hereby acknowledges and agrees that, as contemplated in
the Offer Letter, in the event that the guarantee of any of the Shareholders (as
defined in the Shareholders' Agreement) is required in connection with the
leasing of equipment by the Company, Nextel Japan, as a Shareholder, will make
such guarantee concurrently with the other Shareholders (other than DJSMR) pro
rata based on two times its equity percentage. Nextel Japan acknowledges and
agrees that such agreement is made in partial consideration for the purchase of
the shares of the Company from NML pursuant to the Stock Purchase Agreement. In
addition, Nextel International, Inc., a Delaware corporation, hereby guarantees
the performance by Nextel Japan of all of Nextel Japan's duties and obligations
hereunder.
Please acknowledge your agreement with the foregoing by executing this
letter in the space indicated below.
Very truly yours,
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NIPPON MOTOROLA LTD.
By:
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Name: Xxxxx Xxxx
Title: President and Representative Director
Acknowledged and agreed to:
NEXTEL INTERNATIONAL (JAPAN), LTD.
By:
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Name:
--------------------------------
Title:
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NEXTEL INTERNATIONAL, INC.
By:
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Name:
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Title:
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