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EXHIBIT 2.2
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 dated as of December 19, 1996, to AGREEMENT AND PLAN OF
MERGER by and among NEXTEL COMMUNICATIONS, INC., a Delaware corporation
("Nextel"), DIAL CALL INDIMICH, INC., a Delaware corporation and direct
wholly-owned subsidiary of Nextel ("Indimich"), and WIRELESS VENTURES OF BRAZIL,
INC., a Virginia corporation ("WVB"), dated as of October 28, 1996 (the
"Agreement").
RECITALS
A. Nextel, Indimich and WVB are parties to the Agreement.
B. Nextel, Indimich and WVB desire to amend certain provisions of the
Agreement pursuant to Section 11.2 of the Agreement.
In consideration of the mutual promises contained herein, the parties
hereto agree as follows:
ARTICLE I.
AMENDMENTS
1.1 DEFINED TERMS
Except where otherwise provided, terms defined in the Agreement are used
herein as therein defined.
1.2 AMENDMENTS
(a) Section 2.2.1(b) of the Agreement is hereby amended and restated to
read in its entirety as follows:
(b) The shares of common stock of Indimich issued and outstanding at the
Effective Time shall be converted into the number of shares of Class A
Common Stock of the Surviving Corporation which equals 81% of the total
number of shares of WVB Common Stock outstanding immediately following
the Effective Time.
(b) Section 10.1(b) of the Agreement is hereby amended and restated to read
in its entirety as follows:
(b) by either Nextel or WVB if the transactions contemplated hereby
shall not have been consummated by January 29, 1997; provided, however,
that the right to terminate this Agreement under this Section 10.1(b)
shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of or resulted in the
failure of the transactions contemplated hereby to occur on or before
such date; or
(c) The Agreement is amended to add the following Section 5.18:
5.18 WVB Optionholder Waivers
Prior to the Closing Date, WVB agrees to use its best efforts: (i) to
obtain from each of the WVB Optionholders either (a) a waiver,
substantially in the form attached hereto as Exhibit 5.18, or (b) a
written agreement (in a form reasonably satisfactory to Nextel) (x)
regarding the exercise price and number of shares of WVB Class A Common
Stock and WVB Class B Common Stock issuable in respect of the WVB Option
held by such WVB Optionholder as a result of the Recapitalization of
WVB; or (y) cancelling the WVB Option without liability or cost to WVB.
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(d) The Agreement is amended to add the following Section 5.19:
5.19 Transfer of Shares to XxXxx International, Ltd.
Immediately following completion of the Merger, Nextel, subject to the
proviso to Section 4.9(f), shall transfer to XxXxx International, Ltd.,
a Washington corporation and an indirect wholly-owned subsidiary of
Nextel, all shares of Class A Common Stock of the Surviving Corporation
into which the shares of common stock of Indimich have been converted in
the Merger.
(e) The Agreement is amended to add the following Section 5.20:
5.20 STRYPES Transaction:
(a) Subject to the provisions set forth in clause (b) below (and to
Nextel's receipt of a written agreement, in form reasonably acceptable
to Nextel, signed by each of the Participants (as defined in clause (b)
below) and implementing the arrangements outlined in clause (b) below),
at the request of Telcom, Nextel shall provide reasonable assistance to
the WVB Shareholders (including, if and to the extent required by the
SEC, the preparation and filing of a registration statement (containing
a resale prospectus) covering the resale of the shares of Nextel Common
Stock issued to such WVB Shareholders in the Merger) in connection with
the proposed public offering, by or for the benefit of such WVB
Shareholders, to investors of securities to be issued by a trust in a
"STRYPES" or similar trust-type transaction (the "Trust Offering"). Such
assistance shall include the execution and delivery by Nextel of an
appropriate agreement with the WVB Shareholders and the underwriters of
such Trust Offering, which shall contain representations and warranties
by Nextel and the other parties to such agreement reasonably appropriate
in view of the role of such parties in such Trust Offering and otherwise
customary for secondary offerings of such type involving selling
shareholders who are not affiliates of Nextel and pursuant to which
Nextel shall arrange for the provision of an appropriate opinion of
counsel and accountants' comfort letters in standard form, provided that
the indemnification obligations of Nextel and the WVB Shareholders to
the underwriters pursuant to such agreement shall reflect the
arrangements agreed to and summarized in clause (b)(i) below. In
addition, Nextel shall afford the WVB shareholders, the underwriters of
such Trust Offering and their respective legal representatives access to
such information concerning Nextel, and to appropriate Nextel personnel,
as Nextel, such WVB Shareholders and such underwriters shall reasonably
determine to be advisable in the circumstances or as may be legally
required to enable such parties to fulfill their obligations under the
federal securities laws in connection with such Trust Offering, and
Nextel also shall cause at least one senior executive of Nextel to
participate in the "road show" for such Trust Offering.
(b) In consideration of the actions and commitments by Nextel set forth
above, Telcom and the other WVB Shareholders participating in such Trust
Offering (the "Participants") shall : (i) jointly and severally
indemnify Nextel in full against any and all losses, costs and
liabilities incurred by Nextel, its officers, directors, attorneys,
agents or controlled affiliates or any of them (the "Indemnified Group")
that arises from or is connected with any claim, action or proceeding
brought against or involving any member of the Indemnified Group by any
purchaser or underwriter (or any person claiming or asserting a claim by
or through any such purchaser or underwriter) of such Trust Offering;
provided that the Participants shall not be obligated hereby to
indemnify any member of the Indemnified Group against any losses, costs
or liabilities to the extent the same are determined by an Adjudication
(as defined in clause (c) below) to arise from one or more materially
false or misleading statements or omissions contained (or incorporated
by reference) in the resale prospectus or the related registration
statement prepared and filed by Nextel, in the form declared effective
(other than any of such information as was supplied (or was legally
required to be supplied) by any of such WVB Shareholders or the
underwriters for inclusion in such prospectus or registration
statement), or included in other written materials prepared by Nextel or
at Nextel's direction and were specifically authorized in writing by
Nextel to be employed as part of the offering materials related to the
Trust Offering (it being specifically understood and agreed that the
indemnification obligations of the Participants hereunder, and the
amount of any related payments due by them to
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any and all members of the Indemnified Group, shall be determined as
provided in clause (c) below) (any such claim, action or proceeding for
which such indemnification may be sought, after giving effect to the
exclusions set forth in the foregoing proviso, being referred to as an
"Indemnifiable Action"); (ii) pay to Nextel the amount of any payment
Nextel in turn would be required to make to the carriers providing its
Directors and Officers' insurance coverage to reinstate a dollar amount
of insurance coverage, up to the maximum amount of coverage initially in
force under the applicable policies during the current coverage period,
to the extent such coverage is reduced by any payments made to or claims
filed by or for the benefit of any member of the Indemnified Group in
respect of an Indemnifiable Action; (iii) pay Nextel for all excess
premium amounts that Nextel in turn would be required to pay to secure
an extension of its Directors and Officers' insurance coverage and
related policies of insurance at the expiration of the current coverage
period (with such extension coverage being in all material respects,
including term, deductibles, co-pays and allocations, limits and
exclusions, substantially identical to the coverage currently in force)
as a result of any payments made to or claims filed by or for the
benefit of any member of the Indemnified Group in respect of an
Indemnifiable Action (with the amount of such excess premiums being
agreed to be the difference between the total amount of the premiums
quoted as due to the relevant carriers for the extension coverage and
the total amount of the premiums for which such carriers would issue
identical replacement coverage if they were allowed to fully exclude
coverage for (and receive full reimbursement for (including reasonable
interest charges on) all amounts previously expended by them in respect
of) all Indemnifiable Actions under any policy issued or to be issued by
them to Nextel); and (iv) pay Nextel in full (up to an aggregate limit
amount of $250,000) for the actual, documented out-of-pocket costs
incurred by Nextel in connection with its provision of assistance
relating to the Trust Offering as contemplated above, including the
reasonable fees and expenses of Nextel's outside counsel and accountants
and expenses incurred by officers and employees of Nextel (including
travel expenses associated with participation in the "road show" for the
Trust Offering); it being expressly understood and agreed that excluded
from such amounts shall be (A) any and all payments made in respect of
salaries, employee benefits, employment taxes or similar normal
personnel overhead charges associated with the time Nextel's employees
may devote to tasks related to the Trust Offering, which shall be the
sole and exclusive responsibility of Nextel, and (B) any and all
registration, blue sky and similar fees, all financial printers costs
and all underwriters' expenses, commissions, discounts and similar fees,
which shall be the sole and exclusive responsibility of the
Participants.
(c) In the event of an Indemnifiable Action, the procedures set forth in
Section 9.3 herein shall control, with the Participants being the
Indemnifying Party and the members of the Indemnified Group being the
Indemnitee; provided that the $500,000 deductible and the liability
limitation provisions of Section 9.1 shall not be applicable, and
payments made by any Participants in respect of an Indemnifiable Action
shall be made only in cash and shall be excluded from the calculations
of such participant's maximum liability limitation, if any, for purposes
of Section 9.1. Nextel will act reasonably and in good faith in seeking
to obtain the maximum benefits of any Directors and Officers' insurance
coverage that may be available in respect of an Indemnifiable Action,
and in negotiating with the relevant insurance carrier(s) regarding the
appropriate deductible and allocation arrangements that may apply to
such Indemnifiable Action for purposes of such insurance coverage, and
the Participants' indemnification obligations as to an Indemnifiable
Action under clause (b)(i) above shall take into account all payments
and reimbursements to Nextel pursuant to such insurance coverage.
Subject to Nextel's obligations to act reasonably and in good faith as
provided in the preceding sentence, the Participants shall not contest
the results achieved by Nextel in respect of Directors' and Officers'
insurance coverage, including the amount of any applicable deductible
and/or the allocation arrangements, applicable to such Indemnifiable
Action. The term "Adjudication" shall mean, as to an Indemnifiable
Action that is resolved, whether on jurisdictional grounds or on its
merits by a court of competent jurisdiction, a final, non-appealable
judgment and as to an Indemnifiable Action that is settled or otherwise
disposed of prior to such a final, non-appealable judgment, a final and
binding arbitration award or any other outcome mutually agreed to
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by Telcom and Nextel. Subject to Section 9.3, the Indemnifying Party
shall control the defense of the Indemnifiable Action, provided that the
Indemnified Group may assume control of the Indemnifiable Action if (i)
the Indemnified Group shall have proposed a settlement of the
Indemnifiable Action that the Indemnifying Party opposes and the
Indemnifying Party shall not, upon request, demonstrate to the
reasonable satisfaction of the Indemnified Group (including, if
requested, the posting of a bond or other security) that the
Indemnifying Party has the financial resources to meet its indemnifying
obligations hereunder or (ii) the Indemnifying Group shall assume
responsibility for the Indemnifiable Action. If the Indemnifying Party
should dispute its indemnification obligations on the grounds that the
matter at issue does not constitute an Indemnifiable Action, then the
Indemnifying Party promptly shall submit the matter at issue to a
process of binding arbitration, to be conducted in accordance with the
rules of the American Arbitration Association applicable to commercial
disputes (with such arbitration to be held in Washington, D.C.) by three
arbitrators mutually acceptable to Nextel and Telcom, and such
arbitrators shall determine if such matter constitutes an Indemnifiable
Action and, if so, the amount of the payment required to be made by the
Indemnifying Party to the Indemnity. The parties will use their
respective reasonable best efforts to assure that any such arbitration
is commenced and concluded as promptly as possible, shall bear their own
costs associated with the arbitration (including one half of the
arbitrators' fees and expenses allocated to each party), unless the
arbitrators' final award recommends a different treatment of such costs,
and agree that such arbitrators' award shall be final, binding and
non-appealable, and that judgment on such award may be had in any court
having jurisdiction of the relevant parties.
(f) The Agreement is amended to add the following Section 6.19:
6.19 WVB Optionholders
WVB shall have obtained from each WVB Optionholder either the waivers or
the agreements, as contemplated by Section 5.18, unless the Indemnifying
Founders shall have entered into an agreement in a form reasonably
satisfactory to Nextel agreeing to fully indemnify the Surviving
Corporation and Nextel for any damages and costs incurred by Nextel or
the Surviving Corporation with respect to any claims in respect of the
WVB Options.
(g) Section 9.4 of the Agreement is amended and restated to read in its
entirety as follows:
9.4 Survival
The covenants, agreements, representations and warranties made by the
parties in or pursuant to this Agreement shall survive the Closing for
18 months, except as otherwise set forth herein, and except that (a)
indemnification pursuant to Article IX relating to the representations
and warranties contained in Section 3.11 and 4.9 and indemnification
pursuant to Section 5.20 shall survive until expiration of the statute
of limitations applicable to the matters covered thereby (giving effect
to any waiver, mitigation or extension thereof), if later, and (b) the
agreements contained in this Article IX shall survive indefinitely. Any
claim for indemnification asserted in accordance with the provisions of
this Agreement prior to the relevant expiration date shall survive until
it is resolved.
ARTICLE II.
GENERAL
2.1 HEADINGS
The headings preceding the text of Sections of this Amendment are for
convenience only and shall not be deemed parts thereof.
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2.2 BINDING EFFECT; APPLICABLE LAW
This Amendment shall become effective when it shall have been executed by
Nextel, Indimich and WVB. This Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, as applied to
contracts executed and to be fully performed in such state.
2.3 COUNTERPARTS
This Amendment may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have entered into and signed this
Amendment as of the date and year first above written.
NEXTEL COMMUNICATIONS, INC.
By XXXXXX X. XXXXXX
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Its Vice President and General Counsel
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DIAL CALL INDIMICH, INC.
By XXXXXX X. XXXXXX
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Its Vice President and General Counsel
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WIRELESS VENTURES OF BRAZIL, INC.
By XXX X. XXXXXXX
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Its Assistant Secretary and General Counsel
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