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EXHIBIT (h)(2)
FORM OF REGISTRATION AGREEMENT
NEXTEL COMMUNICATIONS, INC.
(a Delaware corporation)
REGISTRATION AGREEMENT
Dated: March __, 1997
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TABLE OF CONTENTS
REGISTRATION AGREEMENT.......................................................................................... 1
SECTION 1. Representations and Warranties.................................................... 3
(a) Representations and Warranties by the Company..................................... 3
(i) Compliance with Registration Requirements................................ 3
(ii) Incorporated Documents................................................... 4
(iii) Independent Accountants.................................................. 4
(iv) Financial Statements..................................................... 4
(v) No Material Adverse Change in Business................................... 5
(vi) Good Standing of the Company............................................. 5
(vii) Good Standing of Subsidiaries............................................ 5
(viii) Capitalization........................................................... 6
(ix) Description of Common Stock.............................................. 6
(x) Authorization of Agreement............................................... 6
(xi) Absence of Defaults and Conflicts........................................ 6
(xii) Absence of Labor Dispute................................................. 7
(xiii) Absence of Proceedings................................................... 7
(xiv) Accuracy of Exhibits..................................................... 7
(xv) Possession of Intellectual Property...................................... 7
(xvi) Absence of Further Requirements.......................................... 8
(xvii) Possession of Licenses and Permits....................................... 8
(b) Officer's Certificates............................................................ 8
SECTION 2. Covenants of the Company.......................................................... 8
(a) Compliance with Securities Regulations and Commission
Requests.......................................................................... 8
(b) Filing of Amendments.............................................................. 9
(c) Delivery of Nextel Registration Statements........................................ 9
(d) Delivery of Nextel Prospectuses................................................... 9
(e) Continued Compliance with Securities Laws......................................... 9
(f) Blue Sky Qualifications........................................................... 10
(g) Reporting Requirements............................................................ 10
SECTION 2A. Covenants of Underwriters......................................................... 10
SECTION 3. Payment of Expenses............................................................... 11
(a) Expenses.......................................................................... 11
(b) Allocation of Expenses............................................................ 11
SECTION 4. Indemnification................................................................... 11
(a) Indemnification of Underwriters and the Trust..................................... 11
(b) Indemnification of Company, Directors, Officers................................... 13
(c) Actions against Parties; Notification............................................. 13
(d) Settlement without Consent if Failure to Reimburse................................ 14
SECTION 5. Contribution...................................................................... 14
SECTION 6. Representations, Warranties and Agreements to
Survive Delivery.................................................................. 15
SECTION 7. Termination....................................................................... 16
SECTION 8. Notices........................................................................... 16
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SECTION 9. Parties........................................................................... 16
SECTION 10. GOVERNING LAW..................................................................... 16
SECTION 11. Effect of Headings................................................................ 16
SCHEDULE A
Exhibit 1(a)(vii)
Schedule 1(a)(xvii)
Schedule 1(a)(xv)
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NEXTEL COMMUNICATIONS, INC.
(a Delaware corporation)
REGISTRATION AGREEMENT
March __, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
NEXTEL STRYPES TRUST
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Nextel Communications, Inc., a Delaware corporation (the "Company"),
confirms its agreement with NEXTEL STRYPES Trust, a Delaware business trust (the
"Trust"), and with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as provided in Section 10 of the Underwriting Agreement (as defined
below)), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation are acting as representatives (in such capacity, the
"Representatives"), in connection with a transaction
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characterized by the Representatives as involving the proposed issue and sale by
the Trust to the Underwriters, acting severally and not jointly, pursuant to a
purchase agreement, dated the date hereof (the "Purchase Agreement"), among the
Trust, Cherrywood Holdings, Inc. and ▇▇▇▇▇▇ Investors, L.L.C. (each, a
"Contracting Stockholder" and, together with ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, The
HRS Education Trust and The SRS Education Trust, a "Shareholder" and,
collectively, the "Shareholders"), and the Underwriters, of an aggregate of of
the Trust's STRYPES(SM) (each, a "STRYPES"), exchangeable for shares of common
stock, par value $.001 per share (the "Nextel Common Stock"), of the Company
upon conclusion of the term of the Trust on , 2000 (the "Exchange Date"), and,
at the option of the Underwriters, all or any part of ____________ additional
STRYPES to cover over-allotments, if any. The aforesaid ____________ STRYPES
(the "Initial Securities") to be purchased by the Underwriters and all or any
part of the ____________ STRYPES subject to the option described in Section 2(b)
of the Purchase Agreement (the "Option Securities") are hereinafter called,
collectively, the "Securities." Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Purchase Agreement.
The Company has been advised that the Underwriters propose to make a
public offering of the Securities as soon as the Representatives deem advisable
after this Agreement and the Purchase Agreement have been executed and delivered
and following compliance with certain procedures set forth in a letter agreement
dated February __, 1997, by and between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇, as
Representative (the "Letter Agreement"). The Company acknowledges that it has
been advised that the execution and delivery of this Agreement is a condition to
the execution and delivery of the Purchase Agreement by the Underwriters and the
Trust, and the Company acknowledges that it is required to enter into this
Agreement by the terms of Section 5.20 of the Merger Agreement (as defined
herein) and that, in consideration of the Company's obligations under Section
5.20 of the Merger Agreement and the execution and delivery of the Purchase
Agreement by the Underwriters and the Trust, the Company is willing to make the
representations, warranties and covenants herein contained.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-21171) covering the
resale under the Securities Act of 1933, as amended (the "1933 Act") of the
shares of Nextel Common Stock deliverable upon exchange of the Securities,
including the related preliminary prospectus or prospectuses. Each prospectus
used before such registration statement became effective is herein called a
"Nextel preliminary prospectus." Such registration statement, including the
exhibits thereto, the schedules thereto, if any, and the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time it became effective, is herein called the "Nextel Registration Statement."
The final prospectus, including the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first furnished
to the Underwriters for use in connection with the offering of the Securities is
herein called the "Nextel Prospectus." For purposes of this Agreement, all
references to the Nextel Registration Statement, any Nextel preliminary
prospectus, the Nextel Prospectus or any amendment or supplement to
--------
(SM) Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
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any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the Nextel
Registration Statement, any Nextel preliminary prospectus or the Nextel
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is incorporated by reference in the Nextel Registration Statement, any Nextel
preliminary prospectus or the Nextel Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Nextel
Registration Statement, any Nextel preliminary prospectus or the Nextel
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is
incorporated by reference in the Nextel Registration Statement, such Nextel
preliminary prospectus or the Nextel Prospectus, as the case may be.
Prior to the closing under the Purchase Agreement, the Representatives
have indicated that the Trust will enter into a forward purchase contract (the
"Forward Purchase Contract") with the Contracting Shareholders pursuant to which
the Contracting Shareholders will agree to sell and the Trust will agree to
purchase, immediately prior to the Exchange Date, the Reference Property
required by the Trust to exchange all of the Securities on the Exchange Date as
described in the Trust Prospectus, subject to the Contracting Shareholders'
rights, to the extent permitted by applicable law, to satisfy their respective
obligations thereunder in whole or in part through a cash payment in lieu of
delivery of all or a part of the Reference Property.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter and to the Trust as of the date
hereof, as of the Closing Time referred to in Section 2(c) of the Purchase
Agreement, and as of each Date of Delivery (if any) referred to in Section 2(b)
of the Purchase Agreement, and agrees with each Underwriter and the Trust as
follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for the use of Form S-3 under the 1933 Act. The
Nextel Registration Statement has become effective under the 1933 Act
and, to the knowledge of the Company, no stop order suspending the
effectiveness of the Nextel Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Nextel Registration Statement and
any post-effective amendments thereto became effective and at the
Closing Time (and, if any Option Securities are purchased, at the Date
of Delivery), the Nextel Registration Statement and
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any amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and did not and will not contain an 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.
Neither the Nextel Prospectus nor any amendments or supplements
thereto, at the time the Nextel Prospectus or any such amendment or
supplement was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Nextel
Registration Statement or Nextel Prospectus made in reliance upon and
in conformity with (x) information furnished to the Company in writing
by the Underwriters expressly for use in the Nextel Registration
Statement or Nextel Prospectus, (y) information furnished to the
Company in writing by the Trust expressly for use in the Nextel
Registration Statement or Nextel Prospectus and (z) information
furnished by the Shareholders for use in the Nextel Registration
Statement or the Nextel Prospectus.
Each Nextel preliminary prospectus and the Nextel Prospectus
filed as part of the Nextel Registration Statement as originally filed
or as part of any amendment thereto complied when so filed in all
material respects with the 1933 Act Regulations and, if applicable,
each Nextel preliminary prospectus and the Nextel Prospectus delivered
to the Underwriters for use in connection with the offering of the
Securities was identical in all material respects to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Nextel Registration
Statement and the Nextel Prospectus, when they became effective or at
the time they were or hereafter are filed with the Commission
(including and giving effect to any filed amendments and/or supplements
to such documents), complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations").
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules of the Company
included in the Nextel Registration Statement are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements of the
Company included in the Nextel Registration Statement and the Nextel
Prospectus, together with the related schedules and notes, present
fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations,
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stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified, except as otherwise stated in
the Nextel Registration Statement or the Nextel Prospectus and except
for the pro forma financial information included therein (which comply
as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X of the 1933 Act
Regulations); said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Nextel Registration
Statement present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data included in
the Nextel Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited
financial statements included in the Nextel Registration Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Nextel
Registration Statement and the Nextel Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Nextel Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each of the subsidiaries
of the Company listed on Schedule 1(a)(vii) (each, a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly organized and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Nextel Prospectus and is duly qualified as
a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse
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Effect; except as otherwise disclosed in the Nextel Registration
Statement, all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity (other than the pledges
related to the secured credit facility arranged by Chase Securities,
Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc. and Toronto Dominion Securities
(USA), Inc. (the "Bank Credit Agreement") and the agreements related to
financing arrangements with Motorola, Inc. and NTFC Capital Corporation
(the "Vendor Credit Facility"); none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
The Subsidiaries directly or indirectly hold all material assets
relating to the conduct of the Company's digital mobile business in the
United States.
(viii) Capitalization. The shares of outstanding capital stock
of the Company have been duly authorized and validly issued and are
fully paid and non-assessable; none of the shares of Nextel Common
Stock issued to the Shareholders pursuant to the Merger Agreement was
issued in violation of the preemptive rights of any securityholder of
the Company.
(ix) Description of Common Stock. The Nextel Common Stock
conforms to all statements relating thereto contained in the Nextel
Prospectus and such description conforms to the rights set forth in the
instruments defining the same.
(x) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its Subsidiaries is in violation of its charter or bylaws;
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
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or bylaws of
the
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Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness of the Company or any subsidiary (or any
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary, except for any
indebtedness as to which the occurrence of a Repayment Event would not
result in a Material Adverse Effect.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit or
proceeding, or, to the knowledge of the Company, any inquiry or
investigation, before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Nextel
Registration Statement (other than as disclosed therein), or which
might, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect, or which might, individually or in
the aggregate, reasonably be expected to materially and adversely
affect the properties or assets thereof or the performance by the
Company of its obligations hereunder; the aggregate of all pending
legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Nextel
Registration Statement, including ordinary routine litigation
incidental to the business, are not reasonably expected to result in a
Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents of the Company which are required to be filed as exhibits to
the Nextel Registration Statement by the 1933 Act which have not been
so filed.
(xv) Possession of Intellectual Property. Except as set forth
on Schedule 1(a)(xv), and except for rights associated with equipment
acquired from Motorola, Inc., the Company and its subsidiaries own or
possess, or can acquire 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, and 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
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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.
(xvi) Absence of Further Requirements. No filing with,
authorization, approval, consent or registration of any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, except such as
has been already obtained or as may be required under the 1933 Act or
the 1933 Act Regulations or state securities laws.
(xvii) Possession of Licenses and Permits. Except as described
in the Nextel Prospectus, the Company and its subsidiaries possess such
waivers, permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and except
as listed on Schedule 1(a)(xvii) hereto neither the Company nor any of
its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company and delivered to the Representatives or counsel for the Underwriters
or to the Trust or counsel for the Trust in connection with the offering of the
Securities shall be deemed a representation and warranty by the Company to each
Underwriter and to the Trust, as the case may be, as to the matters covered
thereby.
SECTION 2. Covenants of the Company. The Company covenants with each
Underwriter and with the Trust as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 2(b), will notify the Representatives and the Trust
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Nextel Registration Statement shall become effective, or any
supplement to the Nextel Prospectus or any amended Nextel Prospectus shall have
been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Nextel Registration
Statement or any amendment or supplement to the Nextel Prospectus or for
additional information, and
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(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Nextel Registration Statement or of any order preventing or
suspending the use of any Nextel preliminary prospectus, or of the suspension of
the qualification of the shares of Nextel Common Stock deliverable upon exchange
of the Securities for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceedings for any of such purposes.
(b) Filing of Amendments. The Company will give the Representatives and
the Trust notice of its intention to file or prepare any amendment to the Nextel
Registration Statement including any amendment, supplement or revision to either
the prospectus included in the Nextel Registration Statement at the time it
became effective or to the Nextel Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the Representatives and the Trust with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters or the Trust or
counsel for the Trust shall reasonably object.
(c) Delivery of Nextel Registration Statements. The Company has
furnished or will deliver to the Representatives, counsel for the Underwriters,
the Trust and counsel for the Trust, without charge, signed copies of the Nextel
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts. If applicable, the
copies of the Nextel Registration Statement and each amendment thereto furnished
to the Underwriters and the Trust will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T. The provisions of this Section 2(c)
in no way affect the agreement of the Shareholders to pay costs as described in
the Merger Agreement.
(d) Delivery of Nextel Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each Nextel preliminary
prospectus as such Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when
the Nextel Prospectus is required to be delivered under the 1933 Act or the 1934
Act, such number of copies of the Nextel Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. If applicable, the Nextel Prospectus
and any amendments or supplements thereto furnished to the Underwriters and the
Trust will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T. The provisions of this Section 2(d) in no way affect the
agreement of the Shareholders to pay costs as described in the Merger Agreement.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in the Purchase Agreement,
subject to the applicable provisions of the Letter Agreement. Subject to the
applicable provisions of the Letter Agreement, if at any time
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when a prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the Underwriters,
counsel for the Trust or counsel for the Company, to amend the Nextel
Registration Statement or amend or supplement the Nextel Prospectus in order
that the Nextel Prospectus will not include any untrue statements of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the opinion of any
such counsel, at any such time to amend the Nextel Registration Statement or
amend or supplement the Nextel Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 2(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Nextel Registration Statement or the Nextel Prospectus
comply with such requirements, and the Company will furnish to the Underwriters
and the Trust such number of copies of such amendment or supplement as the
Underwriters and the Trust may reasonably request (it being the Company's
understanding that the Shareholders are paying the relevant costs).
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the shares of Nextel Common Stock
deliverable upon exchange of the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Representatives may designate and to maintain such qualifications
in effect through the Exchange Date; provided, however, that the Company shall
not be obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject.
Subject to the preceding proviso, in each jurisdiction in which the shares of
Nextel Common Stock deliverable at maturity of the Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect
through the Exchange Date.
(g) Reporting Requirements. The Company, for the period ending March
31, 1998, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the rules and regulations of the Commission thereunder.
SECTION 2A. Covenants of Underwriters. The Representatives, on their
own behalf and on behalf of the other Underwriters, acknowledge that they have
received a copy of the Letter Agreement and will conduct their underwriting
activities, including the offering of any Securities, in compliance with the
applicable terms of the Letter Agreement. The Representatives have furnished to
the Company a true, complete and correct copy of the Purchase Agreement, and
will promptly deliver to the Company any amendment or supplement thereto when
entered into.
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SECTION 3. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation and filing of the Nextel Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto, (ii)
the preparation and delivery to the Underwriters and the Trust of this
Agreement, and (iii) the fees and disbursements of the Company's counsel,
accountants and other advisors.
(b) Allocation of Expenses. The provisions of this Section 3 shall not
affect any agreement that the Company and the Shareholders may make for the
sharing of such costs and expenses.
SECTION 4. Indemnification.
(a) Indemnification of Underwriters and the Trust. Subject to the
provisions set forth in this Section 4(a), the Company agrees to indemnify and
hold harmless each Underwriter, the Trust and each person, if any, who controls
any Underwriter or the Trust within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Nextel
Registration Statement (or any amendment thereto) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Nextel preliminary prospectus or the
Nextel Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, referred to
under (i) above; provided that (subject to Section 4(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriters or the Trust, as the case may be), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission,
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or any such alleged untrue statement or omission, referred to under (i)
above, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with (A) written information furnished to the Company by
any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Nextel
Registration Statement (or any amendment thereto), or any Nextel preliminary
prospectus or the Nextel Prospectus (or any amendment or supplement thereto),
(B) written information furnished to the Company by the Trust expressly for use
in the Nextel Registration Statement (or any amendment thereto), or any Nextel
preliminary prospectus or the Nextel Prospectus (or any amendment or supplement
thereto) or (C) written information furnished to the Company by the Shareholders
expressly for use in the Nextel Registration Statement (or any amendment
thereto), or any Nextel preliminary prospectus or the Nextel Prospectus (or any
amendment or supplement thereto).
In the event that any claim for indemnification under this Section 4(a)
or contribution under Section 5 hereof is made against the Company, the
indemnified parties acknowledge that in accordance with the agreements contained
in the Agreement and Plan of Merger by and among the Company, Dial Call
Indimich, Inc., wholly-owned subsidiary of the Company, and Wireless Ventures of
Brazil, Inc. ("WVB") dated as of October 28, 1996, as amended by Amendment No. 1
thereto dated December 19, 1996 (the "Merger Agreement"), and the related
agreements between the Shareholders and the Company dated February 5, 1997 (the
"Indemnity Agreement") and the Joinder Agreement dated February __, 1997 (the
"Joinder Agreement"), the Shareholders are required to indemnify the Company,
among other things, for claims made under this Section 4(a) or Section 5 by the
indemnified parties except in the circumstances specified in the Indemnity
Agreement. Accordingly, in the event that the indemnified parties are entitled
to seek indemnity or contribution hereunder against any loss, liability, claim,
damage and expense under this Section 4(a) or Section 5 hereof (each such
circumstance or event, a "Loss") the indemnified parties shall seek to satisfy
the Loss in full from the Shareholders by making a written demand upon the
Shareholders for such satisfaction, and shall copy the Company on each such
written demand. Only if such Loss shall remain unsatisfied in whole or in part
20 days following the date of receipt by the Shareholders of the relevant demand
shall any indemnified party have the right to take action to satisfy such Loss
by making demand directly on the Company (but only if and to the extent that the
Shareholders have not already satisfied (and do not thereafter satisfy) such
Loss, whether by settlement, release or otherwise). In the case of reimbursement
of expenses pursuant to this Section 4(a) or Section 5 hereof, the indemnified
parties shall first seek to obtain such reimbursement in full from the
Shareholders by making a written demand upon the Shareholders for such
reimbursement and shall copy the Company on each such written demand. Only in
the event such expenses shall remain unreimbursed in full or in part 20 days
following the date of receipt by the Shareholders of such demand shall the
indemnified party have the right to receive reimbursement of such expenses from
the Company by making written demand directly on the Company (but only to the
extent the Shareholders have not already
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satisfied (and do not thereafter satisfy) the demand for reimbursement, whether
by settlement, release or otherwise).
In the event that the Company shall be required to satisfy a Loss under
this Section 4(a) or Section 5 hereof after the indemnified party or parties
involved have served written demand on the Shareholders, the Company shall be
entitled to recover from the Shareholders the entire amount of such Loss (other
than in the case of a Loss in respect to which the Company is not entitled to
indemnification by the Selling Stockholders under the Indemnity Agreement). The
Company has delivered to the Representatives a true, correct and complete copy
of each of the Merger Agreement, the Indemnity Agreement and the Joinder
Agreement.
(b) Indemnification of Company, Directors, Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Nextel Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Nextel
Registration Statement (or any amendment thereto), or any Nextel preliminary
prospectus or the Nextel Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Nextel
Registration Statement (or any amendment thereto) or such Nextel preliminary
prospectus or the Nextel Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 4(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇; and, in
the case of parties indemnified pursuant to Section 4(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 or Section
5 hereof (whether or not the
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indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 4(a)(ii) 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) 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 such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 5. Contribution. If the indemnification provided for in Section
4 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then the parties hereto intend that the Company
and the Shareholders, on the one hand and the Underwriters and the Trust on the
other hand, in accordance with the applicable provisions of Section 4(a) hereof,
shall contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Shareholders on the one hand and the Underwriters and the
Trust on the other hand from the offering of the Securities pursuant to the
Purchase Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Shareholders on the one hand and the Underwriters
and the Trust on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the offering of the Securities
pursuant to the Purchase Agreement shall be deemed to be such that the
Underwriters and the Trust shall be responsible for that portion of the
aggregate amount of such losses, liabilities, claims, damages and expenses
represented by the percentage that the total underwriting discount received by
the Underwriters, as set forth on the cover of the Trust Prospectus, or, if Rule
434 is used, the corresponding location on the Trust Term Sheet, bears to the
aggregate initial public offering price of the Securities as set forth on such
cover and the Company and the Shareholders shall be responsible for the balance.
The relative fault of the Company and the Shareholders on the one hand
and the Underwriters and the Trust on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or
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alleged omission to state a material fact relates to information supplied by the
Company or the Shareholders on the one hand or by the Underwriters or the Trust
on the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the provisions of this Section 5, the Underwriters and
the Trust shall not be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by the
Underwriters and distributed to the public were offered to the public exceeds
the amount of any damages which the Underwriters and the Trust have otherwise
been required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
The Company, the Underwriters and the Trust agree that it would not be
just and equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 5. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 5 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 5, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter; each
person, if any, who controls the Trust within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Trust; and each
director of the Company, each officer of the Company who signed the Nextel
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 5 are several in
proportion to the number of Securities set forth opposite their respective names
on Schedule A hereto and not joint.
SECTION 6. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant to
the Purchase Agreement, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or
controlling persons, or by or on behalf of the Trust or controlling persons or
by or on behalf of the Company, and shall survive delivery of the Securities to
the Underwriters pursuant to the Purchase Agreement.
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SECTION 7. Termination. In the event that the Underwriters terminate
the Purchase Agreement as provided in Section 5, Section 9 or Section 10
thereof, the Underwriters shall promptly give the Company notice thereof and
this Agreement shall simultaneously terminate, except that the provisions of
Section 3, the indemnity agreements set forth in Section 4, the contribution
provisions set forth in Section 5, and the provisions of Section 6 shall remain
in effect.
SECTION 8. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Representatives shall be directed to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇; notices to the Trust shall
be directed to it c/o Puglisi & Associates, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; notices to the Company
shall be directed to it at Nextel Communications, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of General Counsel.
SECTION 9. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Trust and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Trust and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 4 and 5
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Trust and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
the Underwriters shall be deemed to be a successor by reason merely of such
purchase.
SECTION 10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 11. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Trust and the Company in accordance with its terms.
Very truly yours,
NEXTEL COMMUNICATIONS, INC.
By____________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By________________________________________________
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
NEXTEL STRYPES TRUST
By ___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Managing Trustee
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SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated......................
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation.........................
---------------
Total.............................................. 7,168,587
===============
Sch A - 1