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PURCHASE, RELEASE AND SETTLEMENT AGREEMENT
This Purchase, Release and Settlement Agreement (the "Agreement"), dated
as of July 21, 2000, by and between Nextel International, Inc., a Washington
corporation ("NII") and McCaw International (Brazil), Ltd., a Virginia
corporation ("MIBL") (referred to collectively as "Nextel"); and Telcom
Ventures, LLC, a Delaware limited liability company ("Telcom") and Dr. Rajendra
Singh, Neera Singh, Ramesh Mehta, Vandana Tandon, the Hersh Raj Singh Education
Trust, the Samir Raj Singh Education Trust, and South Beach Ventures (referred
to collectively as the "Telcom Parties") ("Telcom" and the "Telcom Parties" are
referred to collectively as the "Founders").
RECITALS:
A. The Founders are each owners of shares of Class B Common Stock
of MIBL (the "Class B Shares") as reflected in Schedule A attached
hereto.
B. The parties hereto entered a Shareholders Agreement dated as of
January 29, 1997.
C. Nextel and Telcom have brought claims against one another in an
action styled McCaw International (Brazil) LTD., et al. v. Telcom
Ventures, LLC, Circuit Court for the City of Alexandria, At Law
CL990564 (the "Law Action"). In addition, Telcom has brought an
action against Nextel in an action styled Telcom
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Ventures, LLC v. McCaw International (Brazil) LTD., et al., Circuit
Court for the City of Alexandria, Chancery No. CH000505 (the
"Chancery Action").
D. The parties now wish to resolve, through mutual releases and
waivers, all of their disputes relating in any way to any aspect
of the operations of MIBL or its predecessors, and/or any
agreements, transactions, or relationships arising from such
operations, up to the date hereof, (collectively, the "Brazil
Matters"), and to dismiss the Law Action and the Chancery Action
with prejudice, implement the sale and purchase arrangements
concerning the Class B Shares, and enter into the agreements
contained or contemplated herein.
NOW THEREFORE, in consideration of the recitals, and for other good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
the parties agree as follows:
1. On or before 9:00 a.m. local time on August 3, 2000 (the "Delivery
Date"), the parties shall execute and deliver the items indicated below their
names on Schedule B attached hereto to their respective counsel, in the case of
the Founders, the law firm of Blankingship & Keith, P.C., and in the case of
Nextel, the law firm of McGuire Woods L.L.P. On the Delivery Date,
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counsel for the parties and such other representatives as the parties may
designate may inspect the items delivered by each party to its respective
counsel in order to verify substantive accuracy and proper execution, as
required by this Agreement. If all required items have been timely executed and
delivered by all appropriate parties then, on August 4, 2000, at a mutually
agreed time (subject to extension as provided herein; such date, the "Closing
Date"), upon the delivery of all documents listed on Schedule B to the opposite
parties, NII shall make prompt payment to the Founders of the Payment Amount by
verified wire transfer as contemplated below. Without limiting the generality
of the foregoing, each of the Founders agrees to and shall deliver to NII all
of his, her, or its Class B Shares (including all of his, her, or its rights as
shareholders of MIBL, where arising under MIBL's articles, by-laws, by
agreement, under or pursuant to law or any other source whatsoever) by delivery
of appropriate stock certificates accompanied by suitable instruments of
transfer, free and clear of any and all liens, encumbrances, adverse claims or
other rights of third parties other than liens created in favor of Motorola
under the Equipment Financing Agreement as amended, and NII agrees to and shall
pay the sum of $146,000,000.00 in U.S. Dollars in cash ("Payment Amount") to
the Founders. NII shall distribute the Payment Amount at the Closing by wire
transfers in accordance with written instructions signed by all the Founders
and delivered to Waller T. Dudley, Esq., as counsel for Nextel, three (3) days
prior to the
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scheduled Closing Date, which written instructions shall contain an
acknowledgement by each Founder that the Founder alone shall be responsible for
and shall discharge all of their respective federal, state, local, foreign and
other tax liabilities, and bear all related tax consequences, associated with
their respective receipt of the Payment Amount and that Nextel shall have no
responsibility for allocating the Payment Amount among the Founders, or
otherwise, except to comply with the wiring instructions, and shall fully
discharge all of its responsibilities under this paragraph 1, and shall be
released from all liabilities and obligations relating to the Payment Amount, by
complying with the wiring instructions.
2. A. If Nextel does not deposit with its counsel all documents
required to be duly executed by it not later than the Delivery Date, then Telcom
Ventures (acting on behalf of and binding all of the Founders) may, in its
discretion (1) seek specific performance of this Agreement in the Circuit Court
for the City of Alexandria (the "Court"), (2) seek damages or other appropriate
remedy in the Court for breach of this Agreement, or (3) terminate this
Agreement by giving written notice to that effect to NII, it being understood
that such remedies are cumulative and not mutually exclusive. Unless and until
termination of this Agreement is so effected, Telcom Ventures also may
unilaterally elect to extend the Closing Date to a date
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that is one business day following Nextel's deposit with its counsel of all
documents required to be duly executed by it.
B. If each of the Founders do not deposit with their counsel all documents
required to be duly executed by them not later than the Delivery Date, then NII
(acting on behalf of and binding Nextel) may, in its discretion (1) seek
specific performance of this Agreement in the Court, (2) seek damages or other
appropriate remedy in the Court for breach of this Agreement, or (3) terminate
this Agreement by giving written notice to that effect to Telcom Ventures, it
being understood that such remedies are cumulative and not mutually exclusive.
Unless and until termination of this Agreement is so effected, NII also may
unilaterally elect to extend the Closing Date to a date that is one business day
following the Founders' deposit with their counsel of all documents required to
be duly executed by them.
C. Each of the parties consents to exclusive jurisdiction in the Court for
purposes of any such remedial action to enforce this Agreement, and acknowledges
the appropriateness in the circumstances of equitable relief, including the
remedy of specific performance. Upon termination of this Agreement, it shall
automatically become null and void, and the parties shall return to their
respective positions as if there had been no Agreement; provided, however, that
the non-breaching party shall have the right to sue for breach of this
Agreement.
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3. Subject to the Founders' sole liability and responsibility for any
and all taxes associated with their receipt of the Payment Amount as provided in
paragraph 2 above, the parties shall be free to characterize the payment and
receipt of all or any part of the Payment Amount as he, she or it may deem
advisable.
4. At and following the Closing on the Closing Date, Nextel's counsel
is hereby irrevocably authorized by Telcom Ventures to file appropriate papers
with the Court to effect the dismissal with prejudice of the Chancery Action and
of the claims, counterclaims and causes of action within the Law Action that
have been asserted against Nextel, and Telcom Ventures is hereby irrevocably
authorized by Nextel to file the appropriate papers with the Court to effect the
dismissal with prejudice of the claims, counterclaims and causes of action
within the Law Action that have been asserted against Telcom Ventures.
5. At and following the Closing on the Closing Date, and for all
purposes, Dr. Rajendra Singh shall be deemed to have been properly removed
and/or to have resigned from the MIBL Board, effective as of April 30, 1999.
6. The parties recognize that they have each come to possess certain
sensitive and confidential information about the other. This type of
confidential information includes, but is not limited to, confidential business
and financial information.
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The parties agree to maintain the confidentiality of any such information
acquired or obtained during their relationship or in the course of the
litigation between the parties and agree to refrain from disclosing or otherwise
using to the detriment of the party to which such confidential information
pertains, any such confidential information at any time and for any reason,
except as may be required, in the good faith judgment of their respective
counsel, to comply with applicable law and/or to assist such party in enforcing
compliance with or obtaining remedies for breaches or failures to perform this
Agreement.
7. The parties further recognize the existence of an agreed Protective
Order that was entered in the Law Action by the Circuit Court for the City of
Alexandria on November 24, 1999 (the "Protective Order"). Pursuant to the terms
of the Protective Order, and within 30 days from the Closing Date, the attorneys
for the parties agree to return to the originating source any items produced
during discovery in the litigation that have been marked "confidential" and all
copies made thereof, including any items or copies thereof provided to any
persons. At the expiration of the 30 day term, the parties and their attorneys
shall execute an acknowledgment that, to the best of their knowledge,
information and belief following diligent inquiry and effort, all confidential
information in their possession has been returned to the originating source.
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8. The parties acknowledge that the forms of release and waiver
attached as Schedules C and D to this Agreement, and the form of Blanket
Termination Agreement, attached as Schedule E to this Agreement, have been
approved by the parties, and will be executed and delivered by the appropriate
parties to their respective counsel by the Delivery Date.
9. Nextel, on the one hand, and each and all of the Founders, on the
other, agree that this Agreement (including all Schedules and other documents
contemplated herein to be delivered by the parties) expresses the entire
agreement between them concerning the subject matter hereof or addressed herein.
The parties further agree that there are no prior verbal or written promises,
agreements, representations, assurances, additions or modifications not
contained herein. This Agreement (including any Schedule or other document
contemplated herein to be delivered by the parties) may be altered or modified,
or any of its provisions waived, only by a written addendum signed by all of the
parties.
10. The parties agree to provide such other and further assurances and
to execute such additional documents as may be necessary to carry out the
intention of this Agreement.
11. This Agreement shall be binding on the parties hereto, their
representatives, agents, successors, heirs, and assigns.
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12. This Agreement (including any Schedule hereto or other document
contemplated herein to be delivered by any of the parties) shall be governed by,
and construed in accordance with, the laws of the Commonwealth of Virginia and
the United States of America.
13. This Agreement (including any Schedule hereto or other document
contemplated herein to be delivered by any of the parties) may be executed in
counterparts.
IN WITNESS WHEREOF, the parties execute this Agreement.
NEXTEL INTERNATIONAL, INC.
Date: By:
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McCAW INTERNATIONAL (BRAZIL) LTD.
Date: By:
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The Hersh Raj Singh Education Trust
Date: By:
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The Samir Raj Singh Education Trust
Date: By:
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Date:
------------- ---------------------------------
Ramesh Mehta
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Date:
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Vandana Tandon
Telcom Ventures, LLC
Date: By:
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South Beach Ventures, Inc.
Date: By:
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Date:
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Rajendra Singh
Date:
------------- ---------------------------------
Neera Singh
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Schedule A
Owners of Shares of Class B Common Stock
Telcom Ventures, LLC 1,153,204
shares
South Beach Ventures, Inc. 178,087 shares
Rajendra Singh 96,100 shares
Neera Singh 96,100 shares
The Hersh Raj Singh Education Trust 96,100 shares
The Samir Raj Singh Education Trust 96,100 shares
Ramesh Mehta 596 shares
Vandana Tandon 192 shares
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SCHEDULE B
Nextel
1. A certification by an officer that $146 million is available for wire
transfer at Closing.
2. The release in the form attached as Schedule D.
3. The short form agreement attached as Schedule E.
4. Consent Orders signed by counsel dismissing with prejudice the Law Action
and the Chancery Action.
The Founders
1. The release in the form attached as Schedule C.
2. The short form agreement attached as Schedule E.
3. Stock Certificates and suitable instruments of transfer for all Class B
shares as shown on Schedule A, free and clear of any and all liens,
encumbrances, adverse claims or rights of any third party other than
liens created in favor of Motorola under the Equipment Financing
Agreement as amended.
4. A document signed by all Founders providing clear instructions for wire
transfer in accordance with paragraph 1 of the Agreement.
5. Consent Orders signed by counsel dismissing with prejudice the Law Action
and the Chancery Action.
6. A letter from Rajendra Singh to McCaw International (Brazil) Ltd.,
resigning effective April 30, 1999 from the Board of Directors.
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SCHEDULE C
RELEASE
Telcom Ventures, LLC, a Delaware limited liability company ("Telcom") and
Dr. Rajendra Singh, Neera Singh, Ramesh Mehta, Vandana Tandon, the Hersh Raj
Singh Education Trust, the Samir Raj Singh Education Trust, and South Beach
Ventures (referred to collectively as the "Telcom Parties") (Telcom and the
Telcom Parties are referred to collectively as the "Founders"), for themselves
and on behalf each of their respective predecessors, successors and
subsidiaries, and its or their respective present and former officers,
directors, employees, agents, attorneys, partners, heirs, executors,
administrators, licensees, distributors, affiliates and assigns and any other
person or entity claiming by or through them, hereby release, remise and forever
discharge Nextel Communications, Inc., Nextel International, Inc. ("NII") and
McCaw International (Brazil) Ltd. ("MIBL"), and their respective predecessors,
successors, and subsidiaries, and its and their present and former officers,
directors, employees, attorneys, agents, partners, heirs, executors,
administrators, licensees, distributors, affiliates, and assigns (the "Nextel
Released Parties") from any and all claims, actions, causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills, litigation
costs, attorneys' fees, specialties, controversies, variances, trespasses,
damages, judgments, executions, claims, and demands whatsoever, in law or in
equity, known or unknown, asserted or unasserted, pending or not pending, as
they, or any of them individually or collectively, may now have, ever had, or
hereafter can, shall or may have, for, upon, or by reason of any matter, cause
or thing arising from, relating to or in any way connected either with the
claims which were or which could have been asserted in the actions filed in the
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Circuit Court for the City of Alexandria styled McCaw International (Brazil)
Ltd., et al. v. Telcom Ventures, LLC, At Law CL990564, and Telcom Ventures, LLC
v. McCaw International (Brazil) Ltd., et al., Chancery No. CH000505, or with
respect to any aspect of the operations of MIBL or its predecessors, any
agreements, transactions, or relationships arising from such operations, up to
the date hereof, save and except only any claims arising out of breach of the
Purchase, Release and Settlement Agreement dated July 21, 2000 (including any
schedule or other document delivered as contemplated therein) ("Agreement").
The Hersh Raj Singh Education Trust
Date: By:
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The Samir Raj Singh Education Trust
Date: By:
------------- ---------------------------------
Date:
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Ramesh Mehta
Date:
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Vandana Tandon
Telcom Ventures, LLC
Date: By:
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South Beach Ventures, Inc.
Date: By:
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Date:
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Rajendra Singh
Date:
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Neera Singh
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SCHEDULE D
RELEASE
Nextel Communications, Inc., Nextel International, Inc. ("NII") and McCaw
International (Brazil) Ltd. ("MIBL"), for themselves and for their respective
predecessors, successors, and subsidiaries, and its and their present and former
officers, directors, employees, attorneys, agents, partners, heirs, executors,
administrators, licensees, distributors, affiliates and assigns and any other
person or entity claiming by or through them (collectively referred to as
"Nextel"), hereby release, remise and forever discharge Telcom Ventures, LLC, a
Delaware limited liability company ("Telcom") and Dr. Rajendra Singh, Neera
Singh, Ramesh Mehta, Vandana Tandon, the Hersh Raj Singh Education Trust, the
Samir Raj Singh Education Trust, and South Beach Ventures (referred to
collectively as the "Telcom Parties") (Telcom and the Telcom Parties are
referred to collectively as the "Founders")), and their respective predecessors,
successors, and subsidiaries, and its and their present and former officers,
directors, employees, attorneys, agents, partners, heirs, executors,
administrators, licensees, distributors, affiliates, and assigns (the "Telcom
Released Parties") from any and all claims, actions, causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills, litigation
costs, attorneys' fees, specialties, controversies, variances, trespasses,
damages, judgments, executions, claims, and demands whatsoever, in law or in
equity, known or unknown, asserted or unasserted, pending or not pending, as
they, or any of them individually or collectively, may now have, ever had, or
hereafter can, shall or may have, for, upon, or by reason of any matter, cause
or thing arising from, relating to or in any way connected with either the
claims which were or which could have been asserted in
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the actions filed in the Circuit Court for the City of Alexandria styled McCaw
International (Brazil) Ltd., et al. v. Telcom Ventures, LLC, At Law CL990564,
and Telcom Ventures, LLC v. McCaw International (Brazil) Ltd., et al., Chancery
No. CH000505, or with respect to any aspect of the operations of MIBL or its
predecessors, any agreements, transactions, or relationships arising from such
operations, up to the date hereof, save and except only any claims arising out
of a breach of the Purchase, Release and Settlement Agreement dated July 21,
2000 (including any schedule or other document delivered as contemplated
therein) ("Agreement")
NEXTEL COMMUNICATIONS, INC.
Date: By:
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NEXTEL INTERNATIONAL, INC.
Date: By:
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McCAW INTERNATIONAL (BRAZIL) LTD.
Date: By:
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SCHEDULE E
BLANKET TERMINATION AGREEMENT RELATING TO BRAZIL MATTERS
The parties hereto irrevocably and finally consent, agree to and hereby
effect the termination, effective as of the Closing Date, of all contracts and
agreements by and between Nextel International, Inc. or Mccaw International
(Brazil) Ltd., or any of its or their subsidiaries, on the one hand, and any or
all of the founders, or any of its or their subsidiaries, on the other hand,
including but not limited to the Shareholders Agreement dated January 29, 1997.
Any obligations that purport to survive the termination of the shareholders
Agreement, including but not limited to section 9 thereof, are specifically
terminated and null and void effective as of the Closing Date.
This Blanket Termination Agreement is being delivered pursuant to a
certain Purchase, Release and Settlement Agreement dated as of July 21, 2000
among the parties hereto ("Agreement"), and all defined terms used herein are
used as defined in such Agreement.
NEXTEL INTERNATIONAL, INC.
Date: By:
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McCAW INTERNATIONAL (BRAZIL) LTD.
Date: By:
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The Hersh Raj Singh Education Trust
Date: By:
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The Samir Raj Singh Education Trust
Date: By:
------------- ---------------------------------
Date:
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Ramesh Mehta
Date:
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Vandana Tandon
Telcom Ventures, LLC
Date: By:
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South Beach Ventures, Inc.
Date: By:
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Date:
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Rajendra Singh
Date:
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Neera Singh
