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EXHIBIT 1.1
SHARES
NEXTEL INTERNATIONAL, INC.
CLASS A COMMON STOCK ($.001 PAR VALUE)
U.S. UNDERWRITING AGREEMENT
______________, 2001
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_____________, 2001
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
First Union Securities, Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
UBS Warburg LLC
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Nextel International, Inc., a Delaware corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several underwriters named in Schedule I hereto (the "U.S.
UNDERWRITERS") an aggregate of _________ shares (the "U.S. FIRM SHARES") of its
Class A Common Stock, $.001 par value (the "CLASS A COMMON STOCK") in connection
with the offering and sale of such U.S. Firm Shares in the United States. The
Company also proposes to issue and sell to the several U.S. Underwriters not
more than an additional ________ shares of its Class A Common Stock (the "U.S.
ADDITIONAL SHARES" and, together with the U.S. Firm Shares, the "U.S. SHARES")
solely to cover overallotments if and to the extent that the U.S.
Representatives (as defined below) shall have determined to exercise, on behalf
of the U.S. Underwriters, the right to purchase such shares of Class A Common
Stock granted to the U.S. Underwriters in Section 2 hereof. Xxxxxxx, Xxxxx &
Co., Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse First Boston Corporation,
Deutsche Bank Securities Inc., First Union Securities, Inc., X.X. Xxxxxx
Securities Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and UBS
Warburg LLC shall act as representatives (the "U.S. REPRESENTATIVES") of the
several U.S. Underwriters.
It is understood and agreed to by all parties that the Company is
concurrently entering into an agreement (the "INTERNATIONAL UNDERWRITING
AGREEMENT") with certain underwriters outside the United States (the
"INTERNATIONAL UNDERWRITERS") providing for the issuance and sale by the Company
to the International Underwriters of up to a total of ________ shares of its
Class A Common Stock (the "INTERNATIONAL SHARES"), including the overallotment
option thereunder, in connection with the offering and sale of such
International Shares outside the United States. Xxxxxxx Sachs International,
Xxxxxx Xxxxxxx & Co. International, Limited, Credit Suisse First Boston (Europe)
Limited, Deutsche Bank AG London, First Union Securities, Inc., X.X. Xxxxxx
Securities Ltd., Xxxxxxx Xxxxx International and UBS Warburg LLC shall act as
representatives (the "INTERNATIONAL REPRESENTATIVES") of the several
International Underwriters.
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The U.S. Underwriters and the International Underwriters are hereinafter
collectively referred to as the "UNDERWRITERS".
The U.S. Shares and the International Shares are hereinafter
collectively referred to as the "SHARES." The Class A Common Stock and the Class
B Common Stock, $.001 par value (the "CLASS B COMMON STOCK") of the Company are
hereinafter collectively referred to as the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission
(the "COMMISSION") a registration statement relating to the Shares. The
registration statement contains a U.S. prospectus to be used in connection with
the offering and sale of the Shares in the United States (the "U.S.
Prospectus"). In addition, the Company has prepared an international prospectus,
to be used in connection with the offering and sale of Shares outside the United
States (the "International Prospectus"). The International Prospectus is
identical to the U.S. Prospectus except for the outside front and back cover
pages and the Underwriting section. The registration statement as amended at the
time it becomes effective, including the information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), is
hereinafter referred to as the "REGISTRATION STATEMENT"; the U.S. Prospectus and
the International Prospectus in the respective forms first used to confirm sales
of Shares is hereinafter referred to as a "PROSPECTUS." If the Company has filed
an abbreviated registration statement to register additional shares of Common
Stock pursuant to Rule 462(b) under the Securities Act (the "RULE 462
REGISTRATION STATEMENT"), then any reference herein to the term "REGISTRATION
STATEMENT" shall be deemed to include such Rule 462 Registration Statement.
Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX XXXXXXX") has agreed
to reserve a portion of the Shares to be purchased by it under this Agreement
for sale to the Company's directors, officers, employees and business associates
and other parties related to the Company (collectively, "PARTICIPANTS"), as set
forth in the Prospectus under the heading "Underwriting" (the "DIRECTED SHARE
PROGRAM"). The Shares to be sold by Xxxxxx Xxxxxxx pursuant to the Directed
Share Program are referred to hereinafter as the "DIRECTED SHARES". Any Directed
Shares not orally confirmed for purchase by any Participant by the end of the
business day on which this Agreement is executed will be offered to the public
by the Underwriters as set forth in the Prospectus.
1. Representations and Warranties. The Company represents
and warrants to and agrees with each of the U.S. Underwriters that:
(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) the Registration Statement, when it became
effective, did not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) the Registration
Statement and the U.S. Prospectus comply and, as amended or
supplemented, if applicable, will
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comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by such
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(d) Each of the subsidiaries of the Company listed on
Schedule II (each, a "SUBSIDIARY" and collectively, the "SUBSIDIARIES")
has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation (to the
extent that such jurisdiction recognizes the legal concept of good
standing), has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction (to the extent that such jurisdiction recognizes the legal
concept of good standing) in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a Material Adverse Effect. The Subsidiaries listed on
Schedule II are all of the subsidiaries of the Company other than
inactive subsidiaries.
(e) This Agreement has been duly authorized, executed
and delivered by the Company.
(f) The authorized capital stock of the Company,
including the Shares, conforms as to legal matters to the description
thereof contained in the Prospectus.
(g) The shares of Common Stock of the Company
outstanding immediately prior to the issuance of the Shares have been
duly authorized and are validly issued, fully paid and non-assessable.
The only capital stock of the Company outstanding immediately prior to
the issuance of the Shares will be Common Stock.
(h) The Shares have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement and
the International
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Underwriting Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
(i) The consolidated financial statements, together
with the related schedules and notes, included in the Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the consolidated statements of
operations and comprehensive loss, changes in stockholders' equity and
cash flows of the Company and its consolidated subsidiaries for the
periods specified (subject, in the case of unaudited financial
statements, to normal year-end adjustments); said financial statements
have been prepared in conformity with United States generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved.
(j) The execution and delivery by the Company of, and
the performance by the Company of its obligations under, this Agreement
and the International Underwriting Agreement will not contravene (i) any
provision of applicable law, (ii) the certificate of incorporation or
by-laws of the Company or (iii) any agreement or other instrument
binding upon the Company or any of the Subsidiaries, or any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any Subsidiary, except, with respect to
clauses (i) and (iii), to the extent that any contravention would not
have a Material Adverse Effect, and no consent, approval, authorization
or order of, or filing or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations
under this Agreement or the International Underwriting Agreement, except
such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the U.S. Shares
and as to which the failure to so obtain would not have a material
adverse effect on the ability of the Company to perform its obligations
under this Agreement or the International Underwriting Agreement. Item
16(a) of the Registration Statement sets forth all material agreements
(within the meaning of Item 601(b)(10) of Regulation S-K) to which the
Company or any of its Subsidiaries is a party.
(k) There has not occurred any material adverse change,
or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(l) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries is
a party or to which any of the properties of the Company or any of its
subsidiaries is subject, that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as required.
(m) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to
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Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(n) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company," as such term is defined in the Investment Company Act of 1940,
as amended.
(o) Neither the Company nor any of its subsidiaries is
in violation of its certificate of incorporation or by-laws (or
comparable corporate documents) and neither the Company nor any of its
subsidiaries is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any
subsidiary is subject except for such violations or defaults that are
described in the Prospectus or would not result in a Material Adverse
Effect.
(p) The Company and its subsidiaries own or have the
right to use, or can acquire or obtain the right to use on reasonable
terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "INTELLECTUAL PROPERTY") necessary
to carry on the business now operated by them, except where the failure
to own or have the right to use such Intellectual Property would not,
singly or in the aggregate, have a Material Adverse Effect, and except
as described in the Prospectus. Neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in
the aggregate, would result in a Material Adverse Effect.
(q) Except as described in the Prospectus, each of the
Company and the Subsidiaries (i) has all necessary licenses, consents,
authorizations, approvals, orders, certificates and permits of and from,
and has made all declarations and filings, if any, with all federal,
state and local and foreign governmental, administrative or regulatory
authorities and organizations, to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Prospectus, including providing digital enhanced
specialized mobile radio services as currently conducted by them, except
to the extent that the failure to obtain such licenses, consents,
authorizations, approvals, orders, certificates and permits or make such
declarations and filings, if any, would not have a Material Adverse
Effect and (ii) has not received any notice of proceedings relating to
the violation, revocation or modification of any such license, consent,
authorization, approval, order, certificate or permit which, singly or
in the aggregate, if
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the subject of an unfavorable decision, ruling or finding, would
reasonably be expected to result in a Material Adverse Effect;
(r) Deloitte & Touche LLP, who have certified the
financial statements and supporting schedules for the Company included
in the Prospectus, are independent public accountants as required by the
Securities Act and the rules and regulations of the Commission
thereunder.
(s) The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"),
(ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a Material Adverse Effect.
(t) The Company and each of the Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with U.S. GAAP and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(u) None of the Company or any of its subsidiaries has
committed any act in violation of the Foreign Corrupt Practices Act, as
amended, that would have a Material Adverse Effect.
Furthermore, the Company represents and warrants to Xxxxxx
Xxxxxxx that (i) the Registration Statement, the Prospectus and any preliminary
prospectus comply, and any further amendments or supplements thereto will
comply, with any applicable laws or regulations of foreign jurisdictions in
which the Prospectus or any preliminary prospectus, as amended or supplemented,
if applicable, are distributed in connection with the Directed Share Program,
and that (ii) no authorization, approval or order of, or qualification with, any
governmental body or agency, other than such as have been obtained, is necessary
under the securities laws and regulations of foreign jurisdictions in which the
Directed Shares are offered outside the United States.
The Company has not offered, or caused Xxxxxx Xxxxxxx or its
affiliates to offer, Shares to any person pursuant to the Directed Share Program
with the intent to unlawfully influence (i) a customer or supplier of the
Company to alter the customer's or supplier's level or
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type of business with the Company, or (ii) a trade journalist or publication to
write or publish favorable information about the Company or its products.
2. Agreements to Sell and Purchase. The Company hereby agrees
to sell to the several U.S. Underwriters, and each U.S. Underwriter, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective numbers of U.S. Firm Shares set forth in
Schedule I hereto opposite its name at a purchase price of $____ per share (the
"PURCHASE PRICE").
On the basis of the representations and warranties contained in
this Agreement, and subject to its terms and conditions, the Company agrees to
sell to the U.S. Underwriters the U.S. Additional Shares, and the U.S.
Underwriters shall have a one time right to purchase, severally and not jointly,
up to ________ U.S. Additional Shares at the Purchase Price, which right shall
expire if both (a) the International Underwriters exercise their right to
purchase additional International Shares under the International Underwriting
Agreement (the "International Exercise") and (b) the U.S. Underwriters do not
exercise their right to purchase U.S. Additional Shares concurrently with the
International Exercise. If the U.S. Representatives, on behalf of the U.S.
Underwriters, elect to exercise such option, the U.S. Representatives shall so
notify the Company in writing not later than 30 days after the date of this
Agreement, which notice shall be an irrevocable and binding commitment on the
part of the U.S. Underwriters subject to the terms hereof and shall specify the
number of U.S. Additional Shares to be purchased by the U.S. Underwriters and
the date on which such shares are to be purchased. Such date may be the same as
the Initial Closing Date (as defined below) but not earlier than the Initial
Closing Date nor later than ten business days after the date of such notice.
U.S. Additional Shares may be purchased as provided in Section 4 hereof solely
for the purpose of covering overallotments made in connection with the offering
of the U.S. Firm Shares. If any U.S. Additional Shares are to be purchased, each
U.S. Underwriter agrees, severally and not jointly, to purchase the number of
U.S. Additional Shares (subject to such adjustments to eliminate fractional
shares as the U.S. Representatives may determine) that bears the same proportion
to the total number of U.S. Additional Shares to be purchased as the number of
U.S. Firm Shares set forth in Schedule I hereto opposite the name of such U.S.
Underwriter bears to the total number of U.S. Firm Shares.
The Company hereby agrees that, without the prior written consent
of Xxxxxxx, Sachs & Co., on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 180 days after the date of the
Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (ii) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder or under the
International Underwriting Agreement, (B) the issuance of shares of Common Stock
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof, (C) the granting
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of any options, deferred shares or other equity awards under the Company's
equity incentive plans, so long as such options do not vest and become
exercisable or such deferred shares or other awards do not vest, in each case,
in the absence of extraordinary events or occurrences beyond the control of the
grantee or recipient, until after the expiration of such 180-day period or (D)
the issuance of shares of Common Stock in connection with acquisitions of
businesses or portions thereof or in connection with any strategic investment in
the Company by any third party on terms approved by the Company's board of
directors, provided that the parties in any such acquisition or investment
transaction agree to be bound by the restrictions contained in this paragraph or
will not receive any of such shares of Common Stock until after the expiration
of such 180-day period.
3. Terms of Public Offering. The Company is advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable. The Company is
further advised by you that the Shares are to be offered to the public initially
at $_____ a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected
by you at a price that represents a concession not in excess of $_____ a share
under the Public Offering Price, and that any U.S. Underwriter may allow, and
such dealers may reallow, a concession, not in excess of $___ a share, to any
U.S. Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the U.S. Firm Shares
shall be made to the Company in Federal or other funds immediately available in
New York City against delivery of such U.S. Firm Shares for the respective
accounts of the several U.S. Underwriters at 10:00 a.m., New York City time, on
________ __, 2001, or at such other time on the same or such other date, not
later than ________ __, 2001, as shall be designated in writing by the U.S.
Representatives. The time and date of such payment are hereinafter referred to
as the "INITIAL CLOSING DATE."
Payment for any U.S. Additional Shares shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such U.S. Additional Shares for the respective accounts of the
several U.S. Underwriters at 10:00 a.m., New York City time, on the date
specified in the notice described in Section 2 or at such other time on the same
or on such other date, in any event not later than ________ __, 2001, as shall
be designated in writing by the U.S. Representatives. The time and date of such
payment are hereinafter referred to as the "OPTION CLOSING DATE."
Certificates for the U.S. Firm Shares and U.S. Additional Shares
shall be in definitive form and registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Initial Closing Date or the Option Closing Date, as the case
may be. The certificates evidencing the U.S. Firm Shares and U.S. Additional
Shares shall be delivered to you on the Initial Closing Date or the Option
Closing Date, as the case may be, for the respective accounts of the several
U.S. Underwriters, with any transfer taxes payable in connection with the
transfer of the Shares to the U.S. Underwriters duly paid, against payment of
the Purchase Price therefor.
5. Conditions to the U.S. Underwriters' Obligations. For
purposes of this Section 5, the time and date of payment of the Initial Closing
Date or the Option Closing Date is
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herein called a "CLOSING DATE." The obligations of the Company to sell the
Shares to the U.S. Underwriters and the several obligations of the U.S.
Underwriters to purchase and pay for the Shares on a Closing Date are subject to
the condition that the Registration Statement (other than as it relates to the
Rule 462 Registration Statement) shall have become effective not later than 3:30
p.m. (New York City time) on the date hereof and the Rule 462 Registration
Statement shall have been filed and become effective upon such filing not later
than 8:00 a.m. New York City time on ________ __, 2001.
The several obligations of the U.S. Underwriters under this
Agreement to purchase the Shares to be delivered at the applicable Closing Date
shall be subject to the following conditions that (i) all representations and
warranties and other statements of the Company herein are, as of such Closing
Date, true and correct, (ii) the Company shall have performed all of its
obligations hereunder to be performed on or prior to such Closing Date, and
(iii) the following additional conditions:
(a) The Underwriters shall have received on the
applicable Closing Date a certificate, dated such Closing Date and
signed by an executive officer of the Company, to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct in all material respects as of such
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before such Closing Date.
The officer signing and delivering such certificate may
rely upon the best of his or her knowledge as to proceedings threatened.
(b) The Underwriters shall have received on the
applicable Closing Date an opinion of Xxxxx, Day, Xxxxxx & Xxxxx,
counsel for the Company, dated such Closing Date, substantially in the
form set forth in Exhibit B.
(c) The Underwriters shall have received on the
applicable Closing Date the opinions of special foreign counsel for the
Company in Argentina, Brazil, Chile, Japan, Mexico, Peru, Philippines
and the Cayman Islands, dated such Closing Date, substantially in the
forms set forth in Exhibit C.
(d) The Underwriters shall have received on the
applicable Closing Date an opinion of Shearman & Sterling, counsel for
the Underwriters, dated such Closing Date, in form and substance
reasonably satisfactory to you.
(e) The Underwriters shall have received, on each of
the date hereof and the applicable Closing Date, a letter dated the date
hereof or such Closing Date, as the case may be, in form and substance
reasonably satisfactory to the Underwriters, from the Company's
independent public accountants, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus; provided that the letter delivered on a Closing Date shall
use a "cut-off date" not earlier than three business days prior to such
Closing Date.
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(f) The "lock-up" agreements, each substantially in the
form of Exhibit A hereto, between you and Nextel Communications, Inc.,
Unrestricted Subsidiary Funding Company, the executive officers and
directors identified on Schedule III hereto, each relating to sales and
certain other dispositions of shares of Common Stock or certain other
securities shall be in full force and effect.
(g) The Shares shall have been approved for quotation
on the Nasdaq National Market by the National Association of Securities
Dealers, Inc.
(h) The Underwriters shall have received such other
documents as they may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the
Shares and other matters related to the issuance of the Shares.
(i) The preliminary prospectus dated _____, 2001, as of
its date did not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(j) On or prior to the Initial Closing Date, Nextel
Communications, Inc. shall have purchased not less that $500,000,000 of
the Company's Class B Common Stock at a purchase price per share not
less than the initial public offering price per share of Class A Common
Stock in the offering.
6. Covenants of the Company. In further consideration of the
agreements of the U.S. Underwriters herein contained, the Company covenants with
each U.S. Underwriter as follows:
(a) To furnish to you, without charge, 12 signed copies
of the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to use its best efforts to
furnish to you in New York City, without charge, prior to 10:00 a.m. New
York City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 6(c) below, as many
copies of the Prospectus and any supplements and amendments thereto or
to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file with
the Commission within the applicable period specified in Rule 424(b)
under the Securities Act any prospectus required to be filed pursuant to
such Rule.
(c) If, during such period after the first date of the
public offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary in your judgment
to amend or supplement the Prospectus in order to make the statements
therein, in the light of the
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circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which
Shares may have been sold by you on behalf of the Underwriters and to
any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request, provided that in connection therewith, the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction.
(e) To make generally available to the Company's
security holders and to you as soon as practicable, but in no case later
than three months after the end of the twelve-month period beginning on
the first day of the Company's fiscal quarter immediately succeeding the
Company's fiscal quarter during which the effective date of the
Registration Statement occurs, an earnings statement of the Company
covering such twelve-month period that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) Whether or not any sale of Shares is consummated,
to pay all expenses incident to the performance of its obligations under
this Agreement and the International Underwriting Agreement, including:
(i) the fees, disbursements and expenses of the Company's counsel and
the Company's accountants in connection with the registration and
delivery of the Shares under the Securities Act and all other fees or
expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or Legal Investment memorandum in connection with
the offer and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer
and sale under state securities laws as provided in Section 6(d) hereof,
including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and
in connection with the Blue Sky or Legal Investment memorandum, (iv) all
filing fees and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification of
the offering of the Shares by the National Association of Securities
Dealers, Inc., (v) all costs and expenses incident to listing the Shares
on the Nasdaq National Market, (vi) the cost of printing certificates
representing the Shares, (vii) the costs and charges of any transfer
agent, registrar or depositary, (viii) the costs and expenses of the
Company relating to investor presentations on any
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"road show" undertaken in connection with the marketing of the Shares,
including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations with the prior
approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants,
and 50% of the cost of any aircraft chartered in connection with the
road show, and (ix) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section.
(g) To use the net proceeds received by it from the
sale of the Shares pursuant to this Agreement and the International
Underwriting Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds."
(h) To place stop transfer orders on any Directed
Shares that have been sold to Participants subject to the three month
restriction on sale, transfer, assignment, pledge or hypothecation
imposed by NASD Regulation, Inc. under its Interpretative Material
2110-1 on free-riding and withholding to the extent necessary to ensure
compliance with the three month restrictions.
(i) To pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Share
Program and stamp duties, similar taxes or duties or other taxes, if
any, incurred by the Underwriters in connection with the Directed Share
Program.
(j) To comply with all applicable securities and other
applicable laws, rules and regulations in each foreign jurisdiction in
which the Directed Shares are offered in connection with the Directed
Share Program.
7. Indemnity and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE Act") or is under common control with, or is controlled by, any
Underwriter, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by any Underwriter or any such controlling or affiliated
person in connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein.
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(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through
Xxxxxxx, Sachs & Co. expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxxx, Xxxxx & Co., in the case of parties
indemnified pursuant to Section 7(a), and by the Company, in the case of parties
indemnified pursuant to Section 7(b). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding (as to which
it had indemnification obligations hereunder) effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) to the extent
practicable, such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement (i)
includes an unconditional release of such indemnified party from all liability
on claims that
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are the subject matter of such proceeding, provided that such unconditional
release may be subject to a parallel release of a claimant or plaintiff by such
indemnified party from all liability in respect of related claims or
counterclaims asserted by such indemnified party and (ii) does not include a
statement as to, or as admission of, fault, culpability or failure to act by or
on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section
7(a) or 7(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause 7(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
7(d)(i) above but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate Public
Offering Price of the Shares. The relative fault of the Company on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 7(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
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(f) The indemnity and contribution provisions contained in
this Section 7 and the representations and warranties of the Company contained
in this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Shares. The remedies
provided for in this Section 7 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or
in equity.
8. Directed Share Program Indemnification. (a) The Company
agrees to indemnify and hold harmless Xxxxxx Xxxxxxx and its affiliates and each
person, if any, who controls Xxxxxx Xxxxxxx or its affiliates within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
("XXXXXX XXXXXXX ENTITIES"), from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) (i) caused by any untrue statement or alleged untrue
statement of a material fact contained in any material prepared by or with the
consent of the Company for distribution to Participants in connection with the
Directed Share Program or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) caused by the failure of any Participant
to pay for and accept delivery of Directed Shares that the Participant agreed to
purchase; or (iii) related to, arising out of, or in connection with the
Directed Share Program, other than losses, claims, damages or liabilities (or
expenses relating thereto) that are finally judicially determined to have
resulted from the bad faith or gross negligence of Xxxxxx Xxxxxxx Entities.
(b) In case any proceeding (including any governmental
investigation) shall be instituted involving any Xxxxxx Xxxxxxx Entity in
respect of which indemnity may be sought pursuant to Section 8(a), the Xxxxxx
Xxxxxxx Entity seeking indemnity, shall promptly notify the Company in writing
and the Company, upon request of the Xxxxxx Xxxxxxx Entity, shall retain counsel
reasonably satisfactory to the Xxxxxx Xxxxxxx Entity to represent the Xxxxxx
Xxxxxxx Entity and any others the Company may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any Xxxxxx Xxxxxxx Entity shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Xxxxxx Xxxxxxx Entity unless (i) the Company shall have agreed
to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Company and the
Xxxxxx Xxxxxxx Entity and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. The Company shall not, in respect of the legal expenses of the Xxxxxx
Xxxxxxx Entities in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Xxxxxx Xxxxxxx Entities. Any
such separate firm for the Xxxxxx Xxxxxxx Entities shall be designated in
writing by Xxxxxx Xxxxxxx. The Company shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Company agrees to
indemnify the Xxxxxx Xxxxxxx Entities from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time a Xxxxxx Xxxxxxx Entity shall have requested the Company to
reimburse it for fees and
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expenses of counsel as contemplated by the second and third sentences of this
paragraph, the Company agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by the Company of the aforesaid
request, (ii) to the extent practicable, the Company shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) the Company shall not have reimbursed the Xxxxxx Xxxxxxx
Entity in accordance with such request prior to the date of such settlement. The
Company shall not, without the prior written consent of Xxxxxx Xxxxxxx, effect
any settlement of any pending or threatened proceeding in respect of which any
Xxxxxx Xxxxxxx Entity is or could have been a party and indemnity could have
been sought hereunder by such Xxxxxx Xxxxxxx Entity, unless such settlement (i)
includes an unconditional release of the Xxxxxx Xxxxxxx Entities from all
liability on claims that are the subject matter of such proceeding, provided
that such unconditional release may be subject to a parallel release of a
claimant or plaintiff by such Xxxxxx Xxxxxxx Entity from all liability in
respect of related claims or counterclaims asserted by such Xxxxxx Xxxxxxx
Entity and (ii) does not include a statement as to, or an admission of, fault
culpability or failure to act by or on behalf of any Xxxxxx Xxxxxxx Entity.
(c) To the extent the indemnification provided for in Section
8(a) is unavailable to a Xxxxxx Xxxxxxx Entity or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then the Company in
lieu of indemnifying the Xxxxxx Xxxxxxx Entity thereunder, shall contribute to
the amount paid or payable by the Xxxxxx Xxxxxxx Entity as a result of such
losses, claims, damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Xxxxxx Xxxxxxx Entities on the other hand from the offering of the Directed
Shares or (ii) if the allocation provided by clause 8(c)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 8(c)(i) above but also the
relative fault of the Company on the one hand and of the Xxxxxx Xxxxxxx Entities
on the other hand in connection with any statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Xxxxxx Xxxxxxx Entities on the other hand in connection with
offering of the Directed Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Directed Shares (before
deducting expenses) and the total underwriting discounts and commissions
received by the Xxxxxx Xxxxxxx Entities for the Directed Shares, bear to the
aggregate Public Offering Price of the Directed Shares. If the loss, claim,
damage or liability is caused by an untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact, the
relative fault of the Company on the one hand and the Xxxxxx Xxxxxxx Entities on
the other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement or the omission or alleged omission
relates to information supplied by the Company or by the Xxxxxx Xxxxxxx Entities
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(d) The Company and the Xxxxxx Xxxxxxx Entities agree that it
would not be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Xxxxxx Xxxxxxx Entities were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
Section 8(c). The amount paid or payable by the Xxxxxx Xxxxxxx Entities as a
result of the
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losses, claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by the Xxxxxx Xxxxxxx
Entities in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Xxxxxx Xxxxxxx Entity shall
be required to contribute any amount in excess of the amount by which the total
price at which the Directed Shares distributed to the public were offered to the
public exceeds the amount of any damages that such Xxxxxx Xxxxxxx Entity has
otherwise been required to pay. The remedies provided for in this Section 8 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(e) The indemnity and contribution provisions contained in
this Section 8 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Xxxxxx Xxxxxxx Entity or the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Directed Shares.
9. Termination. (a) Xxxxxxx, Sachs & Co. may terminate this
Agreement, by notice to the Company at any time at or prior to the Initial
Closing Date or the Option Closing Date, (i) if there has been, since the time
of execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and the subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, which in
the judgment of Xxxxxxx, Xxxxx & Co. makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares on the terms and
in the manner contemplated in the Prospectus or (ii) if there shall have
occurred a downgrading in the rating assigned to any of the Company's securities
by any nationally recognized securities rating agency, or if such securities
rating agency shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
securities, or (iii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of Xxxxxxx, Sachs & Co.,
impracticable or inadvisable to market the Shares or to enforce contracts for
the sale of the Shares, or (iv) if trading in any securities of the Company has
been suspended or limited by the Commission or The Nasdaq Stock Market Inc., or
if trading generally on the American Stock Exchange or the New York Stock
Exchange or in The Nasdaq Stock Market Inc. has been suspended or limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required by any of said exchanges or by such system or by order
of the Commission, the National Association of Securities Dealers, Inc. or any
other governmental authority, or (v) if a banking moratorium has been declared
by either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 6(f) hereof,
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and provided further that Sections 1, 7 and 8 shall survive such termination and
remain in full force and effect.
10. Effectiveness; Defaulting Underwriters. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
If, on the Initial Closing Date or the Option Closing Date, as
the case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares that it has or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I bears to the
aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 10 by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Initial Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Firm Shares which it has agreed to purchase
hereunder on such date and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased on such date, and arrangements satisfactory to you and
the Company for the purchase of such Firm Shares are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either you or
the Company shall have the right to postpone the Initial Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated for any reason other than
(a) a failure on the part of the Underwriters to comply with Section 10 of this
Agreement or (b) a termination of this Agreement after the Initial Closing Date
pursuant to Section 9 of this Agreement, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
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00
00. Miscellaneous. (a) This Agreement may be signed in two
or more counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
(b) Any notice or communication shall be sufficiently given if
in writing and delivered in person, mailed by first class mail or sent by
telecopier transmission addressed as follows:
If to the Company:
Nextel International, Inc.
00000 Xxxxxxxxx Xxxx. Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telecopier No. (000) 000-0000
Attn: General Counsel
If to the U.S. Underwriters:
Xxxxxxx, Xxxxx & Co.
0 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No. (000) 000-0000
Attn: Registration Department
The Company or the Underwriters by notice to the other may designate additional
or different addresses for subsequent notices or communications.
12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to any conflicts or choice of law principles which might otherwise be
applicable.
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00. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
Very truly yours,
NEXTEL INTERNATIONAL, INC.
By:____________________________
Name:
Title:
Accepted as of the date hereof
XXXXXXX, SACHS & CO.
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
FIRST UNION SECURITIES, INC.
X.X. XXXXXX SECURITIES INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
UBS WARBURG LLC
By:__________________________
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
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