posam
As filed with the Securities and Exchange Commission on
June 2, 2005.
Registration No. 333-102077
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
POST-EFFECTIVE AMENDMENT NO. 2
ON
FORM S-3
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NII Holdings, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware |
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91-1671412 |
(State or Other Jurisdiction of
Incorporation or Organization) |
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(I.R.S. Employer
Identification Number) |
10700 Parkridge Boulevard, Suite 600 Reston, Virginia
20191
(703) 390-5100
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrants Principal Executive
Offices)
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Robert J. Gilker, Esq.
Vice President and General Counsel
NII Holdings, Inc.
10700 Parkridge Boulevard, Suite 600
Reston, Virginia 20191
(703) 390-5100
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent For Service) |
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Copies of Communications to:
Robert E. Spicer, Jr., Esquire
John M. Oakey, III, Esquire
Williams Mullen
A Professional Corporation
1021 East Cary Street
Richmond, Virginia 23219
(804) 643-1991 |
Approximate date of commencement of proposed sale to the
public:
From time to time following the effectiveness of this
Registration Statement.
If the only
securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please
check the following
box. o
If any of the
securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check
the following
box. þ
If this form is
filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same
offering. o
If this form is
a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same
offering. o
If delivery of
the prospectus is expected to be made pursuant to Rule 434,
please check the following
box. o
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Title of Each Class of |
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Amount to Be |
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Offering Price |
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Aggregate |
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Amount of |
Securities to Be Registered |
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Registered |
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Per Unit |
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Offering Price |
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Registration Fee |
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Common Stock, par value $0.001 per share, of NII Holdings,
Inc.
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(1) |
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(1) |
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(1) |
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(1) |
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13% Senior Secured Discount Notes due 2009 of NII Holdings
(Cayman), Ltd.
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(2) |
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(2) |
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(2) |
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(2) |
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Guarantees
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(2) |
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(2) |
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(2) |
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(2) |
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(1) |
The initial Registration Statement on Form S-1, as filed on
December 20, 2002, registered, for the benefit of certain
security holders, 11,461,283 shares of Common Stock of NII
Holdings, Inc. After giving effect to (i) sales of certain
of such shares by their holders and (ii) a three-for-one
stock split of common stock paid in the form of a stock dividend
on March 22, 2004, as disclosed in a Current Report on
Form 8-K dated March 12, 2004, 12,356,064 shares
of common stock remain available for issuance under this
Registration Statement as of the date of this Post-Effective
Amendment No. 2 on Form S-3 to Form S-1. The
registration fee for the shares of Common Stock was paid upon
the filing of the initial Registration Statement on
Form S-1 on December 20, 2002. |
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(2) |
The initial Registration Statement on Form S-1 registered,
for the benefit of certain security holders, $98,219,990 in
13% Senior Secured Discount Notes due 2009 of NII Holdings
(Cayman), Ltd. and the corresponding Guarantees of the
Subsidiary Guarantor Registrant previously disclosed as part of
this Registration Statement. The Notes have been repurchased or
otherwise defeased and, as a result, the offering of the Notes
and the Guarantees has terminated. Accordingly, the Notes and
the Guarantees are being deregistered under this Post-Effective
Amendment No. 2 on Form S-3 to Form S-1. See
Explanatory Note. |
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Registration Statement, as originally filed on
December 20, 2002, related to the registration of
11,461,283 shares of common stock of NII Holdings, Inc.
(the Registrant) and $98,219,990 aggregate principal
amount of 13% Senior Secured Discount Notes due 2009 of NII
Holdings (Cayman), Ltd., and the Guarantees corresponding to
such notes from the Registrant and certain subsidiary
registrants. Such shares of common stock and such notes were to
be offered from time to time for the account of certain selling
security holders of the Registrant and NII Holdings (Cayman),
Ltd. On April 11, 2003, the Registrant filed Pre-Effective
Amendment No. 1 on Form S-3 to convert the
Registration Statement on Form S-1, as originally filed,
into a Registration Statement on Form S-3. On
February 19, 2004, the Registrant filed Post-Effective
Amendment No. 1 on Form S-3 to correct an omission in
Part II, Item 17, Undertakings.
This Post-Effective Amendment No. 2 on Form S-3 to
Form S-1 is being filed for the following purposes:
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to effect the deregistration of (i) the $98,219,990
aggregate principal amount of 13% Senior Secured Discount
Notes due 2009 of NII Holdings (Cayman), Ltd., which have been
repurchased or otherwise defeased and, as a result, are no
longer part of this offering, and (ii) the corresponding
Guarantees; and |
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to modify the Plan of Distribution section, as
required by the undertaking in
Item 17(a)(1)(iii) below, to permit the selling
security holder to enter into derivative or other hedging
transactions with financial institutions and related
transactions. |
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In preparing this Post-Effective Amendment No. 2 on
Form S-3 to Form S-1, the Registrant has updated the
prospectus contained herein to reflect the changes above and
other appropriate updating revisions, including the removal of a
selling security holder and adjustments to reflect a
three-for-one stock split of the Registrants common stock
paid in the form of a stock dividend on March 22, 2004.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and it is not soliciting offers to buy these
securities in any jurisdiction where the offer or sale is not
permitted.
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Subject to
completion, dated June 1, 2005
12,356,064 Shares of Common Stock
The selling security holder identified in this prospectus is
offering up to 12,356,064 shares of the common stock, par
value $0.001 per share, of NII Holdings, Inc. The
shares of common stock are being offered on a continuous basis
until at least November 12, 2007 or the earlier sale of the
shares of common stock.
NII Holdings, Inc. emerged from Chapter 11 bankruptcy
proceedings on November 12, 2002, and the selling security
holder acquired its shares in connection with the consummation
of NII Holdings, Inc.s Revised Third Amended Joint
Plan of Reorganization. NII Holdings, Inc. has agreed to
register the shares issued to certain of such holders who have
entered into a registration rights agreement with
NII Holdings, Inc.
The selling security holder will receive all of the net proceeds
from the sale of the shares. This security holder will pay all
underwriting discounts and selling commissions, if any,
applicable to the sale of their shares. NII Holdings, Inc.
is not offering any shares of common stock for sale under this
prospectus and will not receive any of the proceeds from the
sale of these securities by the selling security holder.
The selling security holder and participating brokers or dealers
may be deemed to be underwriters within the meaning of the
Securities Act of 1933, in which event any profit on the sale of
the shares by the selling security holder and any commissions or
discounts received by those brokers or dealers may be deemed to
be underwriting compensation under the Securities Act.
NII Holdings, Inc. common stock is currently listed on the
NASDAQ National Market under the symbol NIHD. On
May 31, 2005, the closing price of the common stock was
$59.60 per share.
INVESTING IN THE COMMON STOCK INVOLVES A HIGH DEGREE OF
RISK. SEE RISK FACTORS BEGINNING ON PAGE 4 FOR
A DISCUSSION OF SOME IMPORTANT RISKS YOU SHOULD CONSIDER BEFORE
BUYING ANY SHARES OF COMMON STOCK.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY
OTHER REGULATORY BODY HAS APPROVED OR DISAPPROVED OF THESE
SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
Prospectus dated June , 2005.
TABLE OF CONTENTS
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CERTAIN DEFINITIONS
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FORWARD-LOOKING AND CAUTIONARY STATEMENTS
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PROSPECTUS SUMMARY
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RISK FACTORS
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USE OF PROCEEDS
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SELLING SECURITY HOLDER
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PLAN OF DISTRIBUTION
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DESCRIPTION OF CAPITAL STOCK
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LEGAL MATTERS
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EXPERTS
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INCORPORATION OF INFORMATION THAT WE FILE WITH THE SEC
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WHERE YOU CAN FIND MORE INFORMATION
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CERTAIN DEFINITIONS
Unless the context requires otherwise, NII Holdings,
Inc., NII Holdings, we,
our, us and the Company
refer to the combined businesses of NII Holdings, Inc. and
its consolidated subsidiaries. NII Holdings, Inc., formerly
known as Nextel International, Inc., was incorporated in
Delaware in 2000.
FORWARD-LOOKING AND CAUTIONARY STATEMENTS
Certain statements made in this prospectus are not historical or
current facts, but deal with potential future circumstances and
developments. They can be identified by the use of
forward-looking words such as believes,
expects, intends, plans,
may, will, would,
could, should or anticipates
or other comparable words, or by discussions of strategy that
involve risks and uncertainties. We caution you that these
forward-looking statements are only predictions, which are
subject to risks and uncertainties, including technical
uncertainties, financial variations, changes in the regulatory
environment, industry growth and trend predictions. We have
attempted to identify, in context, some of the factors that we
currently believe may cause actual future experience and results
to differ from our current expectations regarding the relevant
matter or subject area. The operation and results of our
wireless communications business also may be subject to the
effects of other risks and uncertainties in addition to the
other qualifying factors identified in the Risk
Factors section below, including, but not limited to:
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our ability to meet the operating goals established by our
business plan; |
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general economic conditions in Latin America and in the market
segments that we are targeting for our digital mobile services; |
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the political and social conditions in the countries in which we
operate, including political instability, which may affect the
economies of our markets and the regulatory schemes in these
countries; |
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substantive terms of any international financial aid package
that may be made available to any country in which our operating
companies conduct business; |
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the impact of foreign exchange volatility in our markets as
compared to the U.S. dollar and related currency
devaluations in countries in which our operating companies
conduct business; |
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reasonable access to and the successful performance of the
technology being deployed in our service areas, and improvements
thereon, including technology deployed in connection with the
introduction of digital two-way mobile data or Internet
connectivity services in our markets; |
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the availability of adequate quantities of system infrastructure
and subscriber equipment and components to meet our service
deployment and marketing plans and customer demand; |
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the success of efforts to improve and satisfactorily address any
issues relating to our digital mobile network performance; |
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future legislation or regulatory actions relating to our
specialized mobile radio services, other wireless communication
services or telecommunications generally; |
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the ability to achieve and maintain market penetration and
average subscriber revenue levels sufficient to provide
financial viability to our digital mobile network business; |
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the quality and price of similar or comparable wireless
communications services offered or to be offered by our
competitors, including providers of cellular services and
personal communications services; |
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market acceptance of our new service offerings, including
International Direct Connect; |
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our ability to access sufficient debt or equity capital to meet
any future operating and financial needs; and |
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other risks and uncertainties described from time to time in our
reports filed with the Securities and Exchange Commission. |
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1
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this
prospectus. It does not contain all of the information that is
important to you. We encourage you to read this prospectus in
its entirety.
ABOUT NII HOLDINGS
We provide digital wireless communication services targeted at
meeting the needs of business customers through operating
companies located in selected Latin American markets. Our
principal operations are in major business centers and related
transportation corridors of Mexico, Brazil, Argentina and Peru.
We also provide analog specialized mobile radio services in
Mexico, Brazil and Peru, as well as in Chile. Our markets are
generally characterized by high population densities and, we
believe, a concentration of the countrys business users
and economic activity. In addition, vehicle traffic congestion,
low landline penetration and unreliability of the land-based
telecommunications infrastructure encourage the use of mobile
wireless communications services in these areas.
We use a transmission technology called integrated digital
enhanced network, or iDEN®, developed by Motorola, Inc., to
provide our digital mobile services on 800 MHz spectrum
holdings in all of our digital markets. This technology allows
us to use our spectrum more efficiently and offer multiple
digital wireless services integrated on one digital handset
device. We are designing our digital mobile networks to support
multiple digital wireless services, including:
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digital mobile telephone service, including advanced calling
features such as speakerphone, conference calling, voice-mail,
call forwarding and additional line service; |
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Nextel Direct Connect® service, which allows subscribers
anywhere on our network in the same country to talk to each
other instantly, on a push-to-talk basis, on a
private one-to-one call or on a group call; |
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International Direct Connect® service, in partnership with
Nextel Communications and Nextel Partners, which allows
subscribers to communicate instantly across national borders
with our subscribers in Mexico, Brazil, Argentina and Peru and
with Nextel Communications and Nextel Partners subscribers in
the United States; |
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Internet services, mobile messaging services, e-mail and
advanced
Javatm
enabled business applications, which are marketed as
Nextel
Onlinesm
services; and |
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international roaming capabilities, which are marketed as
Nextel
Worldwidesm. |
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Our principal executive office is located at
10700 Parkridge Boulevard, Suite 600, Reston, Virginia
20191. Our telephone number at that location is
(703) 390-5100.
2
SUMMARY OF THE OFFERING
The selling security holder identified in this prospectus is
offering up to 12,356,064 shares of the common stock, par
value $0.001 per share, of NII Holdings, Inc. We are not
issuing any shares under this prospectus.
NII Holdings is authorized to issue a total of
300,000,000 shares of common stock, par value
$0.001 per share. As of May 31, 2005, there were
71,706,188 shares of NII Holdings common stock
outstanding.
See additional discussion of our common stock under
Description of Capital Stock appearing in this
prospectus.
3
RISK FACTORS
Investing in the common stock offered by the selling security
holder involves a high degree of risk. You should carefully
consider the risks described below, as well as all the other
information in this prospectus including the
consolidated financial statements and related notes
before investing in the common stock.
Risk Factors Relating to Our Company
We have a short history of
profitable operations, which may make it difficult for you to
evaluate our business and the risks of investing in our common
stock.
Prior to giving effect to our reorganization and the application
of fresh start accounting to our financial statements as of
October 31, 2002, we had never been profitable. Because of
this limited profitable history and the incomparability of our
financial condition and results of operations prior to
October 31, 2002 and after October 31, 2002, it may be
difficult for you to evaluate our business.
If we are not able to
compete effectively in the highly competitive wireless
communications industry, our future growth and operating results
will suffer.
Our success will depend on the ability of our operating
companies to compete effectively with other telecommunications
services providers, including wireline companies and other
wireless telecommunications companies, in the markets in which
they operate.
Some of our competitors are financially stronger than we are,
which may limit our ability to compete based on price.
Because of their resources, and in some cases ownership by
larger companies, some of our competitors may be able to offer
services to customers at prices that are below the prices that
our operating companies can offer for comparable services. If we
cannot compete effectively based on the price of our service
offerings, our revenues may be adversely affected. For example,
many of our competitors are well-established companies that have:
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substantially greater financial and marketing resources; |
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larger customer bases; |
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better name recognition; |
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bundled service offerings; |
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larger spectrum positions; and |
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larger coverage areas than those of our operating companies. |
Further, significant price competition could negatively impact
our operating results and our ability to attract and retain
customers. In addition, we anticipate that our operating
companies will continue to face market pressure to reduce the
prices charged for their products and services because of
increased competition in our markets.
Our operating companies may face disadvantages when competing
against formerly government-owned incumbent wireline operators
or wireless operators affiliated with them.
In some markets, our operating companies may not be able to
compete effectively against a formerly government-owned monopoly
telecommunications operator which today enjoys a near monopoly
on the provision of wireline telecommunications services and may
have a wireless affiliate or may be controlled by shareholders
who also control a wireless operator. Our operating companies
may be at a competitive disadvantage in these markets because
formerly government-owned incumbents or affiliated competitors
may have:
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close ties with national regulatory authorities; |
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control over connections to local telephone lines; or |
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the ability to subsidize competitive services with revenues
generated from services they provide on a monopoly or
near-monopoly basis. |
These companies may also continue to enjoy the legacy of their
pre-privatization/pre-liberalization privileges. Our operating
companies may encounter obstacles and setbacks if local
governments adopt policies favoring these competitors or
otherwise afford them preferential treatment. As a result, our
operating companies may be at a competitive disadvantage to
incumbent providers, particularly as our operating companies
seek to offer new telecommunications services.
Our coverage is not as extensive as those of other wireless
service providers in our markets, which may limit our ability to
attract and retain customers.
Since our digital mobile networks do not offer nationwide
coverage in the countries in which we operate and our technology
limits our potential roaming partners, we may not be able to
compete effectively with cellular and personal communications
services providers in our markets. Many of the cellular and
personal communications services providers in our markets have
networks with substantially more extensive areas of service.
Additionally, many of these providers have entered into roaming
agreements with each other, which permit these providers to
offer coverage to their subscribers in each others
markets. The iDEN technology that we deploy is not compatible
with other wireless technologies such as digital cellular or
personal communications services technologies or with other iDEN
networks not operating in the 800 MHz spectrum. As a
result, with the exception of GSM 900 MHz systems, we
cannot enter into roaming agreements with the operators of these
other networks. Although the i2000 digital phone is compatible
with both iDEN 800 MHz and GSM 900 MHz systems, our
customers will not be able to roam on other iDEN 800 MHz or
GSM 900 MHz systems where we do not have a roaming
agreement. As a result, we will not be able to provide coverage
to our subscribers outside of our currently operating digital
markets until:
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other operators deploy iDEN 800 MHz or GSM 900 MHz
technology in markets outside of our coverage areas and we enter
into roaming agreements with those operators; or |
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handsets that can be used on both iDEN 800 MHz and non-GSM
900 MHz wireless communications networks become available
and we enter into roaming agreements with the operators of those
networks. |
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If we do not keep pace with rapid technological changes, we
may not be able to attract and retain customers.
The wireless telecommunications industry is experiencing
significant technological change. Future technological
advancements may enable other wireless technologies to equal or
exceed our current level of service and render iDEN technology
obsolete. If Motorola, the sole supplier of iDEN technology, is
unable to upgrade or improve iDEN technology or develop other
technology to meet future advances in competing technologies on
a timely basis, or at an acceptable cost, we will be less able
to compete effectively and could lose customers to our
competitors. In addition, competition among the differing
wireless technologies could:
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segment the user markets, which could reduce demand for our
technology; and |
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reduce the resources devoted by third-party suppliers, including
Motorola, which supplies all of our current digital mobile
technology, to developing or improving the technology or our
systems. |
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If our wireless communications technology does not perform in
a manner that meets customer expectations, we will be unable to
attract and retain customers.
Customer acceptance of the services we offer is and will
continue to be affected by technology-based differences and by
the operational performance and reliability of system
transmissions on our digital mobile networks. We may have
difficulty attracting and retaining customers if we are unable
to address and resolve satisfactorily performance or other
transmission quality issues as they arise or if these issues:
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limit our ability to expand our network coverage or capacity as
currently planned; or |
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place us at a competitive disadvantage to other wireless service
providers in our markets. |
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5
Our equipment is more expensive than that of some
competitors, which may affect our ability to establish and
maintain a significant subscriber base.
We currently market multi-function digital handsets, and
Motorola is the sole supplier of all our handsets. The higher
cost of our equipment may make it more difficult for us to
attract customers. In addition, the higher cost of our handsets
requires us to absorb a comparatively larger part of the cost of
offering handsets to new and existing customers. These higher
costs of handsets place us at a competitive disadvantage and may
reduce our growth and profitability.
We may lose a competitive advantage because our competitors
are providing two-way radio dispatch and other services.
We differentiate ourselves by providing two-way radio dispatch
push-to-talk services. Several of our competitors
have introduced PoC (Push-To-Talk over Cellular) service, which
is a walkie-talkie type of service similar to our Direct Connect
service. In addition, we do not have short messaging system
(SMS) interoperability agreements in all our markets.
Consequently, our competitive advantage may be impaired.
Because we rely on one supplier to implement our digital
mobile networks, any failure of that supplier to perform could
adversely affect our operations.
Motorola is currently our sole source for most of the digital
network equipment and all of the handsets used throughout our
markets. In addition, iDEN technology is a proprietary
technology of Motorola, meaning that there are no other
suppliers of this technology, and it is the only widespread,
commercially available digital technology that operates on
non-contiguous spectrum. We have some non-contiguous spectrum in
each of the markets we serve. If Motorola fails to deliver
system infrastructure equipment and handsets or enhancements on
a timely, cost-effective basis, we may not be able to adequately
service our existing customers or add new customers. Nextel
Communications is the largest customer of Motorola with respect
to iDEN technology and provides significant support with respect
to new product development. Nextel Communications and Sprint
recently announced that they would merge and that the new
combined company plans to migrate Nextels push-to-talk
services to a next generation CDMA network platform. After
announcing their merger plans, Nextel Communications also
announced an agreement with Motorola for a three-year extension
of its iDEN infrastructure supply agreement and handset purchase
agreement, with certain modifications. Any decrease by Nextel
Communications in its use of iDEN technology could significantly
increase our costs for equipment and new developments and could
impact Motorolas decision to continue to support iDEN
technology. In the event Motorola determines not to continue
manufacturing, supporting or enhancing our iDEN based
infrastructure and handsets, because Nextel Communications
decreases its use of iDEN technology or otherwise, we may be
materially adversely affected. We expect to continue to rely
principally on Motorola for the manufacture of a substantial
portion of the equipment necessary to construct, enhance and
maintain our digital mobile networks and for the manufacture of
handsets for the next several years.
We operate exclusively in foreign markets, and our assets,
customers and cash flows are concentrated in Latin America,
which presents risks to our operating and financing
plans.
We face political and economic risks in our markets, which
may limit our ability to implement our strategy and our
financial flexibility and may disrupt our operations.
The countries in which we operate are considered to be emerging
markets. Although political, economic and social conditions
differ in each country in which we currently operate, political
and economic developments in one country may affect our business
as a whole, including our access to international capital
markets. Negative developments or unstable conditions in the
countries in which we operate or in other emerging market
countries could have a material adverse effect on our financial
condition and results of operations. In Peru, for example, there
was significant terrorist activity in the 1980s and the early
1990s. During that time, anti-government groups escalated
violence against the government, the private sector and Peruvian
residents. Incidents of terrorist activity continue to occur.
Similar outbreaks of terrorism or political violence have
occurred in Mexico and other countries in which we operate. In
addition, in 2001, after prolonged periods of
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recession followed by political instability, the Argentine
government announced it would not service its public debt. In
order to address the worsening economic and social crisis, the
Argentine government abandoned its decade-old fixed Argentine
peso-U.S. dollar exchange rate, allowing the currency to
float to market levels.
We are unable to predict the impact that presidential or other
contested local or national elections and the associated
transfer of power from incumbent officials or political parties
to elected victors, may have on the local economy or the growth
and development of the local telecommunications industry.
Changes in leadership or in the ruling party in the countries in
which we operate may affect the economic programs developed
under the prior administration, which in turn may adversely
affect the economies in the countries in which we operate and
our business operations and prospects in these countries.
Due to our significant operations in Argentina and Brazil,
our business is particularly exposed to risks associated with
adverse economic and political conditions in those countries.
In recent years, both Argentina and Brazil have been negatively
affected by volatile economic and political conditions. These
volatile conditions pose risks for our business. In particular,
the volatility of the Argentine peso and the Brazilian real has
affected our recent financial results. The depreciation of the
currencies in Argentina and Brazil in 2002 had a material
negative impact on our financial results.
Argentina. After a prolonged period of recession,
followed by political instability, Argentina announced in
December 2001 that it would impose tight restrictions on bank
accounts, would not service its public sector debt and suspended
foreign currency trading. In January 2002, the Argentine
government abandoned its decade-old fixed Argentine
peso-U.S. dollar exchange rate. The resulting depreciation
of the Argentine peso against the U.S. dollar during the
2002 calendar year was 66%. A depreciation of the Argentine peso
generally affects our consolidated financial statements by
generating a foreign currency transaction loss on
U.S. dollar-denominated debt. Until October 31, 2002,
the liabilities of our Argentine operating company included
U.S. dollar-denominated secured debt, for which we
recognized foreign currency transaction losses of
$137.5 million for the ten months ended October 31,
2002. A depreciation of the Argentine peso also affects our
consolidated financial statements by reducing the translation
rate of all Argentine peso-denominated balances. To the extent
net income is generated by our Argentine operating company, the
amount would be reduced by a depreciation of the Argentine peso.
Brazil. The Brazilian economy has been characterized by
frequent and occasionally drastic intervention by the Brazilian
government and by volatile economic cycles. The Brazilian
government has often changed monetary, taxation, credit, tariff
and other policies to influence the course of Brazils
economy. In early 1999, the Brazilian government allowed the
Brazilian real to float freely, resulting in a 32% devaluation
against the U.S. dollar that year. In 2002, the Brazilian
real depreciated against the U.S. dollar by 18%. For the
combined period ended December 31, 2002, we recognized
foreign currency transaction losses of $26.2 million,
primarily related to U.S. dollar-denominated liabilities of
our Brazilian operating company.
The volatility of the Brazilian real and the Brazilian capital
markets is due, in part, to Brazilian economic performance and
related government policies. We cannot assure you that the new
government will not implement policy changes that could
adversely affect our Brazilian operations. Changes in policy,
including tariffs, exchange controls or other factors, could
adversely affect our business and financial results, as could
inflation, further currency devaluation and other developments,
as well as the Brazilian governments response to them.
In addition, economic and market conditions in other emerging
markets can influence the perception of Brazils economic
and political situation.
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Because wireless telecommunications services companies have a
limited history in our markets, acceptance of our services is
uncertain, and we may not be able to successfully implement our
business plan.
Due, in part, to the limited history of wireless communications
services in our existing and targeted markets, we face many
uncertainties in our markets that may affect our ability to grow
or implement our business plan. These uncertainties include:
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the size of the markets for wireless communications services; |
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the penetration rates of these markets; |
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the ability of potential subscribers to pay subscription and
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the extent and nature of the competitive environment in these
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the immediate and long-term commercial viability of wireless
communications services in these markets. |
As a result of these uncertainties, we may make significant
investments in developing a network and promoting our digital
mobile services in markets where we may not achieve significant
market acceptance for our services. If this occurs we may be
unable to recover our investment in these markets, which could
harm our financial condition and results of operations.
We are subject to fluctuations in currency exchange rates and
limitations on the expatriation or conversion of currencies,
which may result in significant financial charges, increased
costs of operations or decreased demand for our products and
services.
Nearly all of our revenues are earned in
non-U.S. currencies, although a significant portion of our
capital and operating expenditures, including imported network
equipment and handsets, and substantially all of our outstanding
debt, is priced in U.S. dollars. Accordingly, fluctuations
in exchange rates relative to the U.S. dollar could have a
material adverse effect on our earnings or assets. For example,
the 1999 and 2002 currency devaluations in Brazil resulted in
significant charges against our earnings in 1999 and 2002 and
negative adjustments to the carrying value of our assets in
Brazil. The economic upheaval in Argentina in 2002 led to the
unpegging of the Argentine peso to the U.S. dollar exchange
rate and the subsequent significant devaluation of the Argentine
peso.
Any depreciation of local currencies in the countries in which
our operating companies conduct business may result in increased
costs to us for imported equipment and may, at the same time,
decrease demand for our products and services in the affected
markets. If our operating companies distribute dividends in
local currencies in the future, the amount of cash we receive
will also be affected by fluctuations in exchange rates and
currency devaluations. In addition, some of the countries in
which we have operations do or may restrict the expatriation or
conversion of currency.
Our operating companies are subject to fluctuating economic
conditions in the local markets in which they operate, which
could hurt their performance.
Our operations depend on the economies of the markets in which
our operating companies conduct business. These markets are in
countries with economies in various stages of development or
structural reform, some of which are subject to rapid
fluctuations in terms of consumer prices, employment levels,
gross domestic product, interest rates and inflation rates. If
these fluctuations have an effect on the ability of customers to
pay for our products and services, our business may be adversely
affected. As a result, our operating companies may experience
lower demand for their products and services and a decline in
the growth of their customer base and in revenues.
Some of our operating companies conduct business in countries
where the rate of inflation is significantly higher than in the
United States. Any significant increase in the rate of inflation
in any of these countries may not be completely or partially
offset by corresponding price increases implemented by our
operating companies, even over the long term.
8
We pay significant import duties on our network equipment and
handsets, and any increases could impact our financial
results.
Our operations are highly dependent upon the successful and
cost-efficient importation of network equipment and handsets
from North America and, to a lesser extent, from Europe and
Asia. Any significant increase in import duties in the future
could significantly increase our costs. To the extent we cannot
pass these costs on to our customers, our financial results will
be negatively impacted. In the countries in which our operating
companies conduct business, network equipment and handsets are
subject to significant import duties and other taxes that can be
as high as 50% of the purchase price.
We are subject to foreign taxes in the countries in which we
operate, which may reduce amounts we receive from our operating
companies or may increase our tax costs.
Many of the foreign countries in which we operate have
increasingly turned to new taxes, as well as aggressive
interpretations of current taxes, as a method of increasing
revenue. For instance, Brazil has a tax on financial
transactions, and certain provinces in Argentina adopted higher
tax rates on telecommunications services in 2001. In addition,
in 2002 Mexico adopted a new tax on telecommunications services.
The provisions of the new tax laws may prohibit us from passing
these taxes on to our customers. These taxes may reduce the
amount of earnings that we can generate from our services.
Distributions of earnings and other payments, including
interest, received from our operating companies may be subject
to withholding taxes imposed by some countries in which these
entities operate. Any of these taxes will reduce the amount of
after-tax cash we can receive from those operating companies.
In general, a U.S. corporation may claim a foreign tax
credit against its federal income tax expense for foreign
withholding taxes and, under certain circumstances, for its
share of foreign income taxes paid directly by foreign corporate
entities in which the company owns 10% or more of the voting
stock. Our ability to claim foreign tax credits is, however,
subject to numerous limitations, and we may incur incremental
tax costs as a result of these limitations or because we do not
have U.S. federal taxable income.
We may also be required to include in our income for
U.S. federal income tax purposes our proportionate share of
specified earnings of our foreign corporate subsidiaries that
are classified as controlled foreign corporations, without
regard to whether distributions have been actually received from
these subsidiaries.
Nextel Brazil has received tax assessment notices from state and
federal Brazilian tax authorities asserting deficiencies in tax
payments related primarily to value added taxes, import duties
and matters surrounding the definition and classification of
equipment and services. Nextel Brazil has filed various
petitions disputing these assessments. In some cases we have
received favorable decisions, which are currently being appealed
by the respective governmental authorities. In other cases our
petitions have been denied and we are currently appealing those
decisions.
We have entered into a number of agreements that are subject
to enforcement in foreign countries, which may limit efficient
dispute resolution.
A number of the agreements that we and our operating companies
enter into with third parties are governed by the laws of, and
are subject to dispute resolution in the courts of or through
arbitration proceedings in, the countries or regions in which
the operations are located. We cannot accurately predict whether
these forums will provide effective and efficient means of
resolving disputes that may arise. Even if we are able to obtain
a satisfactory decision through arbitration or a court
proceeding, we could have difficulty enforcing any award or
judgment on a timely basis. Our ability to obtain or enforce
relief in the United States is also uncertain.
Government regulations determine how we operate in various
countries, which could limit our growth and strategy
plans.
In each market in which we operate, one or more regulatory
entities regulate the licensing, construction, acquisition,
ownership and operation of our wireless communications systems.
Adoption of new regulations, changes in the current
telecommunications laws or regulations or changes in the manner
in which they are
9
interpreted or applied could adversely affect our operations.
Because of the uncertainty as to the interpretation of
regulations in some countries in which we operate, we may not
always be able to provide the services we have planned in each
market. In some markets, we are unable, or have limitations on
our ability, to offer some services, such as interconnection to
other telecommunications networks and participation in calling
party pays programs, which may increase our costs. Further, the
regulatory schemes in the countries in which we operate allow
third parties, including our competitors, to challenge our
actions. For instance, some of our competitors have challenged
the validity of some of our licenses or the scope of services we
provide under those licenses, in administrative or judicial
proceedings, particularly in Chile. It is possible that, in the
future, we may face additional regulatory prohibitions or
limitations on our services. Inability to provide planned
services could make it more difficult for us to compete in the
affected markets. Further, some countries in which we conduct
business impose foreign ownership limitations upon
telecommunications companies. Finally, in some of our markets,
local governments have adopted very stringent rules and
regulations related to the placement and construction of
wireless towers, which can significantly impede the planned
expansion of our service coverage area, eliminate existing
towers and impose new and onerous taxes and fees. These issues
affect our ability to operate in each of our markets, and
therefore impact our business strategies. For additional
information, see the Regulatory and Legal Overview
discussion for each operating company under Business
of our 2004 annual report on Form 10-K, which is
incorporated by reference into this prospectus.
If our licenses to provide mobile services are not
renewed, or are modified or revoked, our business may be
restricted.
Wireless communications licenses and spectrum allocations are
subject to ongoing review and, in some cases, to modification or
early termination for failure to comply with applicable
regulations. If our operating companies fail to comply with the
terms of their licenses and other regulatory requirements,
including installation deadlines and minimum loading or service
availability requirements, their licenses could be revoked.
Further, compliance with these requirements is a condition for
eligibility for license renewal. Most of our wireless
communications licenses have fixed terms and are not renewed
automatically. Because governmental authorities have discretion
as to the grant or renewal of licenses, our licenses may not be
renewed or, if renewed, renewal may not be on acceptable
economic terms. For example, under existing regulations, our
licenses in Brazil and Peru are renewable once, but no
regulations presently exist regarding how or whether additional
renewals will be granted.
Any modification or termination of our license or roaming
agreements with Nextel Communications could increase our
costs.
Nextel Communications has licensed to us the right to use
Nextel and other of its trademarks on a royalty-free
basis in Latin America. Nextel Communications may terminate the
license on 60 days notice if we commit one of several
specified defaults (namely, failure to maintain agreed quality
controls, a change in control of NII Holdings, or certain
other material defaults under the New Spectrum Use and Build-Out
Agreement) and fail to cure the default within the 60 day
period. If there is a change in control of one of our
subsidiaries, upon 30 days notice, Nextel Communications
may terminate the sublicense granted by us to the subsidiary
with respect to the licensed marks. The loss of the use of the
Nextel tradename could have a material adverse
effect on our operations. We also depend upon our roaming
agreements with Nextel Communications for access to its iDEN
network in the United States.
If we fail to maintain an effective system of internal
controls, we may not be able to accurately report our financial
results or prevent fraud. As a result, current and potential
stockholders could lose confidence in our financial reporting,
which would harm our business and the trading price of our
stock.
Effective internal controls are necessary for us to provide
reliable financial reports and effectively prevent fraud.
Because of its inherent limitations, internal control over
financial reporting may not prevent or detect misstatements.
Also, projections of any evaluation of effectiveness to future
periods are subject to the risk that controls may become
inadequate because of changes in conditions, or that the degree
of compliance with the policies or procedures may deteriorate.
We have in the past discovered, and may in the future discover,
areas of our internal controls that need improvement. As
discussed in our 2004 annual report on Form 10-K and our
quarterly report on Form 10-Q for the quarter ended
March 31, 2005, both of which are incorporated by
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reference into this prospectus, we identified two material
weaknesses as a result of our assessment of internal controls
over financial reporting. As a result of these errors, we
restated certain of our previously issued financial statements
in order to correct these errors in the periods in which they
occurred. We are continuing to work to improve our internal
controls. We cannot be certain that these measures will ensure
that we implement and maintain adequate controls over our
financial processes and reporting in the future. Any failure to
implement required new or improved controls, or difficulties
encountered in their implementation, could harm our operating
results or cause us to fail to meet our reporting obligations.
Inadequate internal controls could also cause investors to lose
confidence in our reported financial information, which could
have a negative effect on the trading price of our stock.
Our debt limits our flexibility and increases our risk of
default.
Our debt could have important consequences to you, such as:
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limiting our flexibility in planning for, or reacting to,
changes in our business and the industries in which we compete
and increasing our vulnerability to general adverse economic and
industry conditions; and |
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limiting our ability to obtain additional financing that we may
need to fund future working capital, capital expenditures,
product development, acquisitions or other corporate
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As of March 31, 2005, the book value of our long-term debt
was $607.0 million, including $300.0 million of our
2.875% convertible notes due 2034, $180.0 million of
our 3.5% convertible notes due 2033, $117.7 million in
obligations associated with a sale and leaseback of
communication towers and $9.3 million in capital lease
obligations, and our stockholders equity was
$461.0 million.
Our ability to meet our debt obligations and to reduce our
indebtedness will depend on our future performance. Our
performance, to a certain extent, is subject to general economic
conditions and financial, business, political and other factors
that are beyond our control. We cannot assure you that we will
continue to generate cash flow from operations at or above
current levels, that we will be able to meet our cash interest
payments on all of our debt or that the related assets currently
owned by us can be sustained in the future.
If our business plans change, including as a result of changes
in technology, or if general economic, financial or political
conditions in any of our markets or competitive practices in the
mobile wireless telecommunications industry change materially
from those currently prevailing or from those now anticipated,
or if other presently unexpected circumstances arise that have a
material effect on the cash flow or profitability of our mobile
wireless business, the anticipated cash needs of our business
could change significantly. Any of these events or circumstances
could involve significant additional funding needs in excess of
the identified currently available sources, and could require us
to raise additional capital to meet those needs. However, our
ability to raise additional capital, if necessary, is subject to
a variety of additional factors that we cannot presently predict
with certainty, including the commercial success of our
operations, the volatility and demand of the capital and lending
markets and the future market prices of our securities. We
cannot assure you that we will be able to raise additional
capital on satisfactory terms or at all.
If we are unable to generate cash flow from operations in the
future to service our debt, we may try to refinance all or a
portion of our debt. We cannot assure you that sufficient future
borrowings will be available to pay or refinance our debt.
Our financing agreements
have and may contain covenants that limit how we conduct our
business, which may affect our ability to grow as
planned.
As a result of restrictions that have been contained in certain
of our agreements and may be contained in future financing
agreements, we may be unable to raise additional financing,
compete effectively or take advantage of new business
opportunities. This may affect our ability to generate revenues
and profits. Our
11
future financing agreements have, and may in the future, contain
covenants that limit how we conduct business by restricting our
ability to:
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incur or guarantee additional indebtedness; |
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pay dividends and make other distributions; |
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prepay subordinated indebtedness; |
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make investments and other restricted payments; |
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enter into sale and leaseback transactions; |
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create liens; |
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sell assets; and |
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We have significant
intangible assets that are not likely to generate adequate value
to satisfy our obligations in the event of liquidation.
If we were liquidated, the value of our assets likely would not
be sufficient to satisfy our obligations. We have a significant
amount of intangible assets, such as licenses. The value of
these licenses will depend significantly upon the success of our
digital mobile network business and the growth of the
specialized mobile radio and wireless communications industries
in general. Moreover, the transfer of licenses in liquidation
would be subject to governmental or regulatory approvals that
may not be obtained or that may adversely impact the value of
such licenses. Our net tangible book value was
$390.2 million as of March 31, 2005.
Our significant stockholder
is able to influence our business and affairs.
As of May 31, 2005, Nextel Communications beneficially
owned about 17.2% of our outstanding common stock and was our
single largest stockholder. Because of their stock ownership,
Nextel Communications may be able to exert significant influence
over our business and affairs. Nextel Communications is also a
party to a standstill agreement with us and certain other
parties which prohibits it from exercising voting control over
more than 49.9% of our outstanding common stock.
Agreements with Motorola
reduce our operational flexibility and may adversely affect our
growth or operating results.
We have entered into agreements with Motorola that impose
limitations and conditions on our ability to use other
technologies that would displace our existing iDEN digital
mobile networks. These agreements may delay or prevent us from
employing new or different technologies that perform better or
are available at a lower cost because of the additional economic
costs and other impediments to change arising under the Motorola
agreements. For example, our equipment purchase agreements with
Motorola provide that we must provide Motorola with notice of
our determination that Motorolas technology is no longer
suited to our needs at least six months before publicly
announcing or entering into a contract to purchase equipment
utilizing an alternate technology.
In addition, if Motorola manufactures, or elects to manufacture,
the equipment utilizing the alternate technology that we elect
to deploy, we must give Motorola the opportunity to supply 50%
of our infrastructure requirements for the equipment utilizing
the alternate technology for three years. This may limit our
ability to negotiate with an alternate equipment supplier.
Finally, if we do switch to an alternate technology and we do
not maintain Motorola infrastructure equipment at the majority
of our transmitter and receiver sites that are deployed at the
time the switch is first publicly announced.
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We may not be able to
finance a change of control offer.
Upon the occurrence of certain kinds of change of control
events, we may be required to repurchase 100% of the
principal amount of all of our outstanding $300.0 million
aggregate principal amount 2.875% convertible notes due
2034 and all of our outstanding $180.0 million
3.5% convertible notes due 2033. However, it is possible
that we will not have sufficient funds at the time of the change
of control to make the required repurchase of our convertible
notes.
Concerns about health risks
associated with wireless equipment may reduce the demand for our
services.
Portable communications devices have been alleged to pose health
risks, including cancer, due to radio frequency emissions from
these devices. The actual or perceived risk of mobile
communications devices could adversely affect us through
increased costs of doing business, additional governmental
regulation that sets emissions standards or otherwise limits or
prohibits our devices from being marketed and sold, a reduction
in subscribers, reduced network usage per subscriber or reduced
financing available to the mobile communications industry.
Further research and studies are ongoing, and we cannot be sure
that these studies will not demonstrate a link between radio
frequency emissions and health concerns.
Historical financial
information may not be comparable to results reported in the
future.
As a result of the November 2002 consummation of our Revised
Third Amended Joint Plan of Reorganization and the transactions
contemplated thereby, we are operating our existing business
under a new capital structure. In addition, we were subject to
fresh-start accounting rules. Accordingly, our consolidated
financial condition and results of operations from and after our
reorganization are not comparable to our consolidated financial
condition or results of operations reflected in our financial
statements for periods prior to our reorganization, which are
included in our 2004 annual report on Form 10-K and
incorporated by reference into this prospectus.
Risk Factors Relating to the Common Stock
The market price of our
common stock may be volatile, which could cause the value of
your investment in us to decline.
Any of the following factors could affect the market price of
our common stock:
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general market, political and economic conditions; |
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changes in earnings estimates and recommendations by financial
analysts; |
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our failure to meet financial analysts performance
expectations; |
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legislative and regulatory developments; |
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conditions and trends in the telecommunications
industry; and |
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conditions in the local markets or regions in which we operate. |
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In addition, many of the risks described elsewhere in this
Risk Factors section could materially and adversely
affect our stock price. The stock markets have experienced price
and volume volatility that has affected many companies
stock prices. Many companies have experienced wide stock price
fluctuations that have often been unrelated to the operating
performance of those companies. Fluctuations such as these may
affect the market price of our common stock.
We have not paid dividends
on our common stock.
We have never paid a cash dividend on our common stock and do
not plan to pay dividends on our common stock for the
foreseeable future. As a holding company, our ability to pay
dividends depends on a number of factors, including the earnings
of, and cash flow available from, our operating companies. Our
operating companies are subject to legal and contractual
restrictions on the payment of dividends to us. Some
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of our financing documents prohibit, and are expected to
continue to prohibit, us from paying dividends. In addition,
some of the collateral security mechanisms and related
provisions associated with our financing agreements limit the
amount of cash available to make dividends, loans and cash
distributions to us from our operating companies and provide
that, in the event we default under those financing agreements,
any dividends must be paid to the collateral agent.
We anticipate that for the foreseeable future any cash flow
generated from our operations will be used to develop and expand
our business and operations and make contractual payments on our
debt in accordance with our business plan. Any future
determination as to the payment of dividends on our common stock
will be at the discretion of our board of directors and will
depend upon our operating results, financial condition and
capital requirements, contractual restrictions, general business
conditions and other factors as our board of directors deems
relevant. We cannot assure you that we will pay dividends on our
common stock at any time in the future.
Some provisions of our
restated certificate of incorporation and Delaware law could
make it more difficult for a third party to acquire us even if
doing so would be in your interest.
Even if an offer to acquire our company included a premium on
the common stock or presented long-term benefits or would
otherwise be in your interest, a third party could find it
difficult to make such an acquisition. Provisions of our
restated certificate of incorporation and of Delaware law that
could make it more difficult to acquire us include:
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the ability of our board of directors to issue shares of
preferred stock on terms that can be set by our board of
directors in its sole discretion; and |
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provisions of Delaware law that impose restrictions on mergers
and business combinations between us and a holder of 15% or more
of our common stock, other than Nextel Communications or a
subsidiary of Nextel Communications. |
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USE OF PROCEEDS
We will not receive any proceeds from the sale of the common
stock by the selling security holder under this prospectus.
SELLING SECURITY HOLDER
General
The shares of common stock offered under this prospectus were
issued on November 12, 2002 under our Revised Third Amended
Joint Plan of Reorganization upon emergence from Chapter 11
bankruptcy proceedings. In connection with that issuance, the
selling security holder was granted registration rights covering
the common stock under a registration rights agreement. This
registration statement is intended to satisfy such registration
rights.
Ownership
The following table provides information with respect to the
common stock held by the selling security holder. The table is
based on information provided by or on behalf of the selling
security holder. Because the selling security holder may sell
all or some part of the common stock which it holds under this
prospectus, no estimate can be given as to the amount of common
stock that will be held by the selling security holder upon
termination of this offering. See Plan of
Distribution below. The selling security holder may from
time to
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time offer and sell any or all of the common stock under this
prospectus. The term selling security holder
includes its transferees, pledgees or donees or their successors.
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Nextel Communications, Inc.
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12,356,064 |
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17.2 |
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2001 Edmund Halley Drive |
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Reston, Virginia 20191 |
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Certain Relationships and Related Transactions
In connection with our emergence from Chapter 11
reorganization on November 12, 2002, Nextel Communications
purchased, through a rights offering, $50.9 million new
notes of NII Holdings (Cayman) and 17,089,563 shares of the
common stock issued, together with 4,266,501 shares of
common stock that NII Holdings issued to Nextel Communications
in connection with the cancellation of our senior redeemable
notes and in satisfaction of claims by Nextel Communications
under our 1997 tax sharing agreement. As of May 31, 2005,
Nextel Communications owned about 17.2% of our issued and
outstanding shares of common stock. The following are
descriptions of other significant transactions consummated with
Nextel Communications on November 12, 2002 under our
confirmed plan of reorganization.
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New Spectrum Use and Build-Out Agreement |
On November 12, 2002, we and Nextel Communications entered
into a new spectrum use and build-out agreement. Under this
agreement, certain of our subsidiaries committed to complete the
construction of our network in the Baja region of Mexico, in
exchange for proceeds from Nextel Communications of
$50.0 million, of which $25.0 million was received in
each of 2002 and 2003. We recorded the $50.0 million as
deferred revenues and expect to recognize the revenue ratably
over 15.5 years, the remaining useful life of our licenses
in Tijuana. As of December 31, 2004 and 2003, we had
recorded $45.7 million and $49.2 million,
respectively, of deferred revenues related to this agreement, of
which $42.5 million and $46.0 million are classified
as long-term, respectively. We commenced service on our network
in the Baja region of Mexico in September 2003. As a result,
during each of the years ended December 31, 2004 and 2003,
we recognized $3.5 million and $0.8 million,
respectively, in revenues related to this arrangement.
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Tax Cooperation Agreement with Nextel
Communications |
We had a tax sharing agreement with Nextel Communications, dated
January 1, 1997, which was in effect through
November 11, 2002. On November 12, 2002, we terminated
the tax sharing agreement and entered into a tax cooperation
agreement with Nextel Communications under which Nextel
Communications and we agreed to retain, for 20 years
following the effective date of our plan of reorganization,
books, records, accounting data and other information related to
the preparation and filing of consolidated tax returns filed for
Nextel Communications consolidated group.
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Amended and Restated Overhead Services Agreement with
Nextel Communications |
We had an overhead services agreement with Nextel Communications
in effect through November 11, 2002. On November 12,
2002, we entered into an amended and restated overhead services
agreement, under which Nextel Communications will provide us,
for agreed upon service fees, certain (i) information
technology services, (ii) payroll and employee benefit
services, (iii) procurement services, (iv) engineering
and technical services, (v) marketing and sales services,
and (vi) accounts payable services. Either Nextel
Communications or we can terminate one or more of the other
services at any time with 30 days advance notice. Effective
January 1, 2003, we no longer use Nextel
Communications payroll and employee benefit services,
procurement services or accounts payable services.
15
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Third Amended and Restated Trademark License Agreement
with Nextel Communications |
On November 12, 2002, we entered into a third amended and
restated trademark license agreement with Nextel Communications,
which superseded a previous trademark license agreement. Under
the new agreement, Nextel Communications granted to us an
exclusive, royalty-free license to use within Latin America,
excluding Puerto Rico, certain trademarks, including but not
limited to the mark Nextel. The license agreement
continues indefinitely unless terminated by Nextel
Communications upon 60 days notice if we commit any one of
several specified defaults and fail to cure the default within a
60 day period. Under a side agreement, until the sooner of
November 12, 2007 or the termination of the new agreement,
Nextel Communications agreed to not offer iDEN service in Latin
America, other than in Puerto Rico, and we agreed to not offer
iDEN service in the United States.
As part of our Revised Third Amended Joint Plan of
Reorganization, we, Nextel Communications and certain of our
noteholders entered into a Standstill Agreement, pursuant to
which Nextel Communications and its affiliates agreed not to
purchase (or take any other action to acquire) any of our equity
securities, or other securities convertible into our equity
securities, that would result in Nextel Communications and its
affiliates holding, in the aggregate, more than 49.9% of the
equity ownership of us on a fully diluted basis, which we refer
to as the standstill percentage, without prior
approval of a majority of the non-Nextel Communications members
of the Board of Directors. We agreed not to take any action that
would cause Nextel Communications to hold more than 49.9% of our
common equity on a fully diluted basis. If, however, we take
action that causes Nextel Communications to hold more than 49.9%
of our common equity, Nextel is required to vote all shares in
excess of the standstill percentage in the same proportions as
votes are cast for such class or series of our voting stock by
stockholders other than Nextel Communications and its affiliates.
During the term of the Standstill Agreement, Nextel
Communications and its controlled affiliates have agreed not to
nominate to our Board of Directors, nor will they vote in favor
of the election to the Board of Directors, any person that is an
affiliate of Nextel Communications if the election of such
person to the Board of Directors would result in more than two
affiliates of Nextel Communications serving as directors. Nextel
Communications has also agreed that if at any time during the
term of the Standstill Agreement more than two of its affiliates
are directors, it will use its reasonable efforts to cause such
directors to resign to the extent necessary to reduce the number
of directors on our Board of Directors that are affiliates of
Nextel Communications to two.
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Registration Rights Agreement |
In connection with our emergence from Chapter 11
reorganization in November 2002, we entered into a Registration
Rights Agreement with Nextel Communications and certain of our
other security holders. Under the terms of the Registration
Rights Agreement, we agreed to register with the Securities and
Exchange Commission, in the aggregate, 34,383,849 shares of
our common stock and $294,659,970 principal amount of our
13% senior secured discount notes due 2009, of which Nextel
Communications owned 21,356,064 shares of the common stock
and $152,700,000 principal amount of the notes. In accordance
with the Registration Rights Agreement and the related
registration statement, Nextel Communications sold
9,000,000 shares of common stock in a fully underwritten
registered offering in November 2003. During 2004, we purchased
or defeased all of our 13% senior secured discount notes
due 2009.
PLAN OF DISTRIBUTION
This prospectus covers the sale of the shares of common stock by
the selling security holder. As used in this prospectus,
selling security holder will also include donees and
pledgees selling securities received from
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a named selling security holder after the date of this
prospectus. The selling security holder may sell their shares of
common stock under this prospectus:
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through one or more broker-dealers acting as either principal or
agent; |
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through underwriters; |
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directly to investors; or |
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through any combination of these methods. |
The selling security holder will fix a price or prices, and it
may change the price, of the shares of common stock offered
based upon:
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market prices prevailing at the time of sale; |
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prices related to those market prices; or |
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negotiated prices. |
These sales may be effected in one or more of the following
transactions (which may involve crosses and block transactions):
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on any securities exchange or U.S. inter-dealer system of a
registered national securities association on which the common
stock may be listed or quoted at the time of sale; |
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in the over-the-counter market; |
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in private transactions; |
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through the writing of options, whether the options are listed
on an option exchange or otherwise; or |
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through the settlement of short sales. |
The selling security holder may also enter into derivative or
other hedging transactions with financial institutions. These
financial institutions may in turn engage in sales of common
stock to hedge their position, deliver this prospectus in
connection with some or all of those sales and use the shares
covered by this prospectus to close out any short position
created in connection with those sales. The selling security
holder may also sell shares of common stock short using this
prospectus and deliver common stock covered by this prospectus
to close out such short positions, or loan or pledge common
stock to financial institutions that in turn may sell the shares
of common stock using this prospectus. The selling security
holder may pledge or grant a security interest in some or all of
the common stock covered by this prospectus to support a
derivative or hedging position or other obligation and, if it
defaults in the performance of our obligations, the pledgees or
secured parties may offer and sell the common stock from time to
time pursuant to this prospectus.
Broker-dealers, underwriters or agents may receive compensation
in the form of discounts, concessions or commissions from the
selling security holder or the purchasers. These discounts,
concessions or commissions may be more than those customary for
the transaction involved. If any broker-dealer purchases the
shares of common stock as principal, it may effect sales of the
shares through other broker-dealers, and other broker-dealers
may receive compensation from the purchasers for whom they act
as agents.
To comply with the securities laws of some states, if
applicable, the securities may be sold in these jurisdictions
only through registered or licensed brokers or dealers. In
addition, in some states the securities may not be sold unless
they have been registered or qualified for sale or an exemption
from registration or qualification requirements is available and
is complied with.
The selling security holder, and any underwriters,
broker-dealers or agents that participate in the sale of the
securities may be deemed to be underwriters within
the meaning of the Securities Act of 1933. Any discounts,
commissions, concessions or profits they earn on any sale of the
shares may be underwriting discounts and commissions under the
Securities Act. A selling security holder who is deemed to be an
underwriter within the meaning of the Securities Act
will be subject to the prospectus delivery requirements of the
Securities Act.
17
Any securities covered by this prospectus which qualify for sale
under Rule 144 of the Securities Act may be sold under
Rule 144 rather than under this prospectus or pursuant to
another available exemption.
To the extent required, the specific securities to be sold, the
names of the selling security holders, the respective purchase
prices and public offering prices, the names of any agent,
dealer or underwriter, and any applicable commissions or
discounts with respect to a particular offer will be set forth
in an accompanying prospectus supplement or, if appropriate, a
post-effective amendment to the registration statement of which
this prospectus is a part.
We may suspend the use of this prospectus in certain
circumstances because of pending corporate developments or a
need to file a post-effective amendment. In any such event, we
will use our reasonable efforts to ensure that the use of the
prospectus is resumed as soon as practicable.
Under the registration rights agreement with the selling
security holder, we have agreed to indemnify the selling
security holder and each underwriter, if any, against certain
liabilities, including under the Securities Act, or will
contribute to payments the selling security holder or
underwriters may be required to make in respect of those
liabilities.
We have agreed to pay substantially all of the expenses in
connection with the registration, offering and sale of the
securities covered by this prospectus, other than commissions,
fees or discounts of underwriters, brokers, dealers and agents.
We have agreed to keep the registration statement, of which this
prospectus is a part, effective from the time this registration
statement becomes effective until the earlier of
November 12, 2007 or that time when all securities covered
by this registration statement have been sold.
DESCRIPTION OF CAPITAL STOCK
The following description is a summary of the material
provisions of our Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws. Copies of the
Amended and Restated Certificate of Incorporation and Amended
and Restated Bylaws have been filed with the Securities and
Exchange Commission and are incorporated into the registration
statement of which this prospectus is a part.
General
As of May 31, 2005, NII Holdings had
310,000,000 shares of capital stock authorized. This
authorized capital stock consisted of:
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300,000,000 shares of common stock, par value
$0.001 per share, 71,706,188 of which were
outstanding; and |
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10,000,000 shares of undesignated preferred stock, par
value $0.001 per share, which we refer to as our
Undesignated Preferred Stock, none of which are currently
outstanding. |
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Common Stock
Subject to the rights of the holder of any preferred stock
outstanding at the time, each share of our common stock entitles
its holder to one vote on all matters submitted to a vote of our
stockholders on which the holders of the common stock are
entitled to vote. Holders of the common stock shall vote
together as one class on all matters submitted to a vote of
stockholders of the corporation generally. The common stock does
not have cumulative voting rights in connection with the
election of directors.
Subject to the preferences of any preferred stock then
outstanding, the holders of common stock are entitled to receive
dividends and other distributions in cash, property or shares of
stock of the corporation as
18
may be declared thereon by the corporations board of
directors from time to time out of assets or funds of the
corporation legally available therefor.
If we are liquidated (either partial or complete), dissolved or
wound up, whether voluntarily or involuntarily, the holders of
the common stock shall be entitled to share ratably in our net
assets remaining after payment of all liquidation preferences,
if any, applicable to any outstanding preferred stock. There are
no redemption or sinking fund provisions applicable to the
common stock.
Undesignated Preferred Stock
The board of directors is granted the authority to from time to
time issue the Undesignated Preferred Stock as preferred stock
of one or more series and in connection with the creation of any
such series to fix by resolution the designation, voting powers,
preferences, and relative, participating, optional, or other
special rights of such series, and the qualifications,
limitations, or restrictions thereof. The rights, preferences,
privileges and restrictions or qualifications of different
series of preferred stock may differ with respect to dividend
rates, amounts payable on liquidation, voting rights, conversion
rights, redemption provisions, sinking fund provisions and other
matters. The issuance of preferred stock could decrease the
amount of earnings and assets available for distribution to
holders of common stock, adversely affect the rights and powers,
including voting rights, of holders of common stock, and have
the effect of delaying, deterring or preventing a change in
control of us.
Preemptive Rights
No holder of any share of our capital stock has any preemptive
right to subscribe to an additional issue of our capital stock
or to any security convertible into such stock.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is
EquiServe Trust Company, N.A.
Certain Provisions of Our Certificate of Incorporation,
Bylaws and Delaware Law
Our Amended and Restated Certificate of Incorporation and
Amended and Restated Bylaws contain provisions that could make
more difficult an acquisition of us by means of a tender offer,
a proxy contest or otherwise. These provisions are expected to
discourage specific types of coercive takeover practices and
inadequate takeover bids and to encourage persons seeking to
acquire control to first negotiate with us. Although these
provisions may have the effect of delaying, deferring or
preventing a change in control, we believe that the benefits of
increased protection through the potential ability to negotiate
with the proponent of an unfriendly or unsolicited proposal to
acquire or restructure the company outweigh the disadvantages of
discouraging these proposals because, among other things,
negotiation of such proposals could result in an improvement of
their terms.
According to our Amended and Restated Bylaws, the board of
directors must be composed of at least one and no more than
twelve directors. Our board currently consists of nine
directors. The number of directors may be changed from time to
time by resolution of the board of directors. Directors need not
be stockholders of the corporation. According to our Amended and
Restated Certificate of Incorporation, we have a board of
directors consisting of three classes, with the term of office
of one class expiring each year. The three directors of the
first class hold office until the next annual meeting or until a
successor is duly elected and qualified, the three directors of
the second class will hold office until the next succeeding
annual meeting or until a successor is duly elected and
qualified, and the three directors of the third class will hold
office until the next thereafter succeeding annual meeting or
until a successor is duly elected and qualified. Commencing with
the next
19
annual meeting, each class of directors whose term shall then or
thereafter expire will be elected to hold office for a
three-year term.
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Stockholder Actions and Special Meetings |
In accordance with Delaware law, any action required or
permitted to be taken at a stockholders meeting may be
taken without a meeting or a vote if the action is consented to
in writing by holders of outstanding stock having the votes
necessary to authorize the action. Our Amended and Restated
Bylaws provide that the chairman of the board and chief
executive officer may call special meetings of the stockholders
for any purpose at any time. Further, the Amended and Restated
Bylaws provide that a special meeting shall be called by the
secretary upon the written request of a majority of the board of
directors or of stockholders holding a majority of the entire
capital stock issued and outstanding and entitled to vote. This
request must state the purposes of the proposed meeting.
Generally, section 203 of the Delaware general corporation
law prohibits a publicly held Delaware company from engaging in
a business combination with an interested stockholder for a
period of three years after the time the stockholder became an
interested stockholder. However, the interested stockholder may
engage in a business combination if specified conditions are
satisfied. Thus, it may make acquisition of control of our
company more difficult. The prohibitions in section 203 do
not apply if:
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before the stockholder became an interested stockholder, the
board of directors approved either the business combination or
the transaction that resulted in the stockholder becoming an
interested stockholder; |
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upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock outstanding
at the time the transaction began; or |
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at or after the time the stockholder became an interested
stockholder, the business combination is approved by the board
of directors and authorized by the affirmative vote of at least
662/3%
of the outstanding voting stock that is not owned by the
interested stockholder. |
Under section 203 of the Delaware general corporation law,
a business combination includes:
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any merger or consolidation of the corporation with the
interested stockholder; |
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any sale, lease, exchange, mortgage, pledge, transfer or other
disposition, except proportionately as a stockholder of such
corporation, to or with the interested stockholder of assets of
the corporation having an aggregate market value equal to 10% or
more of either the aggregate market value of all the assets of
the corporation or the aggregate market value of all its
outstanding stock; |
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transactions resulting in the issuance or transfer by the
corporation of stock of the corporation to the interested
stockholder; |
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transactions involving the corporation, which have the effect of
increasing the proportionate share of the corporations
stock of any class or series that is owned by the interested
stockholder; or |
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transactions in which the interested stockholder receives
financial benefits provided by the corporation. |
Under section 203 of the Delaware general corporation law,
an interested stockholder generally is
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any person that owns 15% or more of the outstanding voting stock
of the corporation; |
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any person that is an affiliate or associate of the corporation
and was the owner of 15% or more of the outstanding voting stock
of the corporation at any time within the three-year period
immediately before the date on which it is sought to be
determined whether or not that person is an interested
stockholder; and |
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the affiliates or associates of either of the above categories
of persons. |
20
Under some circumstances, section 203 of the Delaware
general corporation law makes it more difficult for an
interested stockholder to effect various business combinations
with us for a three-year period, although our stockholders may
elect to exclude us from the restrictions imposed under this
section.
LEGAL MATTERS
Williams Mullen, Richmond, Virginia, our counsel, will pass upon
the validity of the shares of our common stock.
EXPERTS
On May 19, 2003, we dismissed Deloitte & Touche
LLP as our independent registered public accounting firm and
engaged PricewaterhouseCoopers LLP as our independent registered
public accounting firm. In connection with its audits for the
two most recent fiscal years and through May 19, 2003,
there had been no disagreements with Deloitte & Touche
LLP on any matter of accounting principles or practices,
financial statement disclosure, or auditing scope or procedure,
which disagreements if not resolved to the satisfaction of
Deloitte & Touche LLP would have caused them to make
reference thereto in their report on the Companys
consolidated financial statements for such years. Our change in
independent registered public accounting firm was reported on a
Current Report on Form 8-K filed with the SEC on
May 23, 2003.
The consolidated balance sheets as of December 31, 2002
(Successor Company consolidated balance sheet), and the related
consolidated statements of operations, changes in
stockholders (deficit) equity and cash flows for the
two months ended December 31, 2002 (Successor Company
consolidated operations) and the ten months ended
October 31, 2002 (Predecessor Company consolidated
operations), and the financial statement schedule, incorporated
in this prospectus by reference from the Companys Annual
Report on Form 10-K for the year ended December 31,
2004, have been audited by Deloitte & Touche LLP, an
independent registered public accounting firm, as stated in
their report dated March 7, 2003 (March 17, 2005 as to
the effects of the restatement discussed in Note 20), which
is incorporated herein by reference, (which report expresses an
unqualified opinion and includes explanatory paragraphs
referring to NII Holdings, Inc.s reorganization under
Chapter 11 of the United States Bankruptcy Code in 2002,
the adoption of AICPA Statement of Position 90-7,
Financial Reporting for Entities in Reorganization Under
the Bankruptcy Code, in 2002 and the adoption of Emerging
Issues Task Force Issue No. 00-21, Accounting for
Revenue Arrangements with Multiple Deliverables, on
November 1, 2002 and the restatement of the consolidated
financial statements for the two months ended December 31,
2002 (Successor Company) and for the ten months ended
October 31, 2002 (Predecessor Company)) and have been so
incorporated in reliance upon the report of such firm given upon
their authority as experts in accounting and auditing.
The consolidated financial statements as of December 31,
2004 and 2003 and for the years then ended and managements
assessment of the effectiveness of internal control over
financial reporting as of December 31, 2004 (which is
included in Managements Report on Internal Control over
Financial Reporting) incorporated in this prospectus by
reference to the Annual Report on Form 10-K for the year
ended December 31, 2004 have been so incorporated in
reliance on the report (which contains an explanatory paragraph
relating to the Companys change in method of accounting
for the financial results of its foreign operating companies
from a one-month lag reporting basis to a current period basis,
consistent with the Companys fiscal reporting period) of
PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on the authority of said firm as experts
in auditing and accounting.
INCORPORATION OF INFORMATION THAT WE FILE WITH THE SEC
This prospectus incorporates by reference important business and
financial information that we file with the SEC and that we are
not including in or delivering with this prospectus. As the SEC
allows, incorporated
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documents are considered part of this prospectus, and we can
disclose important information to you by referring you to those
documents.
We incorporate by reference the documents listed below, to the
extent they have been filed with the SEC:
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our Annual Report on Form 10-K for the year ended
December 31, 2004; |
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the portions of our definitive Proxy Statement for the Annual
Meeting of Stockholders held on April 27, 2005 that have
been incorporated by reference into our Form 10-K for the
year ended December 31, 2004; |
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our Quarterly Report on Form 10-Q for the period ended
March 31, 2005; |
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our Current Reports on Form 8-K filed March 7, 2005,
March 21, 2005, March 22, 2005, April 1, 2005,
May 17, 2005 and May 27, 2005; and |
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the description of our common stock as set forth on
Form 8-K filed on July 14, 2004. |
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We also incorporate by reference all documents to the extent
they have been filed with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934
(1) after the date of this prospectus and (2) until
this offering has been completed. Information in this prospectus
supersedes related information in the documents listed above,
and information in subsequently filed documents supersedes
related information in both this prospectus and the incorporated
documents.
We will promptly provide, without charge to you, upon written or
oral request, a copy of any or all of the documents incorporated
by reference in this prospectus, other than exhibits to those
documents, unless the exhibits are specifically incorporated by
reference in those documents. Requests should be directed to:
Robert J. Gilker
Vice President and General Counsel
NII Holdings, Inc.
10700 Parkridge Boulevard, Suite 600
Reston, Virginia 20191
(703) 390-5100
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information requirements of the Securities
Exchange Act of 1934, and we file annual, quarterly and current
reports, proxy statements and other information with the
Securities and Exchange Commission. You may read and copy any
document that we file at the SECs public reference room
facility located at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the public reference
room. The SEC maintains an Internet site at http://www.sec.gov
that contains reports, proxy and information statements and
other information regarding issuers, including us, that file
documents with the SEC electronically through the SECs
electronic data gathering, analysis and retrieval system known
as EDGAR.
Our common stock is listed on the Nasdaq National Market under
the symbol NIHD. Our reports, proxy statements and
other information may also be reviewed at the offices of the
National Association of Securities Dealers, Inc.,
1735 K Street, N.W., Washington D.C. 20006.
This prospectus is part of a registration statement filed by us
with the SEC. Because the rules and regulations of the SEC allow
us to omit certain portions of the registration statement from
this prospectus, this prospectus does not contain all the
information set forth in the registration statement. You may
review the registration statement and the exhibits filed with
the registration statement for further information regarding us
and the shares of our common stock being sold by this
prospectus. The registration statement and its exhibits may be
inspected at the public reference facilities of the SEC at the
addresses set forth above.
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PROSPECTUS
June , 2005
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14. |
Other Expenses of Issuance and Distribution |
Set forth below is an estimate of the approximate amount of fees
and expenses payable or paid by NII Holdings in connection
with the issuance and distribution of the shares of common stock
pursuant to the prospectus contained in this Registration
Statement.
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Securities and Exchange Commission registration fee
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$ |
22,269 |
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Legal fees and expenses
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145,000 |
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Accounting fees and expenses
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116,000 |
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Transfer agent fees
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Miscellaneous
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1,731 |
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Total
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285,000 |
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All amounts other than the Securities and Exchange Commission
registration fee are estimates. These fees will be paid by the
registrant.
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Item 15. |
Indemnification of Directors and Officers |
Article Seven of the Amended and Restated Certificate of
Incorporation of NII Holdings provides that, to the fullest
extent permitted by the Delaware General Corporation Law,
referred to as the DGCL, as it now exists or may hereafter be
amended, no director shall be personally liable to the
corporation or any of its stockholders for monetary damages for
breach of any fiduciary or other duty as a director provided
that this provision shall not eliminate or limit the liability
of a director (1) for any breach of the directors
duty of loyalty to the corporation or its stockholders,
(2) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law,
(3) under Section 174 of the DGCL, or (4) for any
transaction from which the director derived an improper personal
benefit.
Under Article Seven, any person who was or is a party or is
threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and
whether by or in the right of the corporation or otherwise (a
proceeding), by reason of the fact that he or she,
or a person of whom he or she is the legal representative, is or
was a director or officer of the corporation or is or was
serving at the request of the corporation as a director,
officer, employee, partner (limited or general) or agent of
another corporation or of a partnership, joint venture, limited
liability company, trust or other enterprise, including service
with respect to an employee benefit plan, shall be (and shall be
deemed to have a contractual right to be) indemnified and held
harmless by the corporation (and any successor to the
corporation by merger or otherwise) to the fullest extent
authorized by, and subject to the conditions and (except as
provided herein) procedures set forth in the DGCL, as the same
exists or may hereafter be amended (but any such amendment shall
not be deemed to limit or prohibit the rights of indemnification
hereunder for past acts or omissions of any such person insofar
as such amendment limits or prohibits the indemnification rights
that said law permitted the corporation to provide prior to such
amendment), against all expenses, liabilities and losses
(including attorneys fees, judgments, fines, ERISA taxes
or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith; provided, however, that the corporation shall
indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person
only if such proceeding (or part thereof) was authorized by the
board of directors of the corporation. Persons who are not
directors or officers of the corporation and are not serving at
the request of the corporation may be similarly indemnified in
respect of such service to the extent authorized at any time by
the board of directors of the corporation. The indemnification
conferred also includes the right to be paid by the corporation
the expenses (including attorneys fees) incurred in the
defense of or other involvement in any proceeding in advance of
its
II-1
final disposition; provided, however, that payment of
expenses (including attorneys fees) incurred by a person
in advance of the final disposition of a proceeding shall be
made only upon delivery to the corporation of an undertaking by
or on behalf of such person to repay all amounts so paid in
advance if it shall ultimately be determined that such director
or officer is not entitled to be indemnified under this section.
Section 7.1 of NII Holdings bylaws (the
Bylaws) provides that each person who was or is a
party or is threatened to be made a party to or is involved in
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and
whether by or in the right of the corporation or otherwise (a
proceeding), by reason of the fact that he or she,
or a person of whom he or she is the legal representative, is or
was a director or officer of the corporation or is or was
serving at the request of the corporation as a director,
officer, employee, partner (limited or general) or agent of
another corporation or of a partnership, joint venture, limited
liability company, trust or other enterprise, including service
with respect to an employee benefit plan, shall be (and shall be
deemed to have a contractual right to be) indemnified and held
harmless by the corporation (and any successor to the
corporation by merger or otherwise) to the fullest extent
authorized by, and subject to the conditions and (except as
provided herein) procedures set forth in the DGCL, as the same
exists or may hereafter be amended (but any such amendment shall
not be deemed to limit or prohibit the rights of indemnification
hereunder for past acts or omissions of any such person insofar
as such amendment limits or prohibits the indemnification rights
that said law permitted the corporation to provide prior to such
amendment), against all expenses, liabilities and losses
(including attorneys fees, judgments, fines, ERISA taxes
or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith; provided, however, that the corporation shall
indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person
only if such proceeding (or part thereof) was authorized by the
board of directors of the corporation. Persons who are not
directors or officers of the corporation and are not so serving
at the request of the corporation may be similarly indemnified
in respect of such service to the extent authorized at any time
by the board of directors of the corporation. The
indemnification conferred in Section 7.1 also includes the
right to be paid by the corporation the expenses (including
attorneys fees) incurred in the defense of or other
involvement in any such proceeding in advance of its final
disposition; provided, however, that payment of expenses
(including attorneys fees) incurred by a person in advance
of the final disposition of a proceeding shall be made only upon
delivery to the corporation of an undertaking by or on behalf of
such person to repay all amounts so paid in advance if it shall
ultimately be determined that such person is not entitled to be
so indemnified under Section 7.1.
Section 7.4 of the Bylaws provides that the corporation
shall have power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee, partner (limited
or general) or agent of another corporation or of a partnership,
joint venture, limited liability company, trust or other
enterprise, against any liability asserted against such person
or incurred by such person in any such capacity, or arising out
of such persons status as such, and related expenses,
whether or not the corporation would have the power to indemnify
such person against such liability under the provisions of the
DGCL.
Section 102 of the DGCL allows a corporation to eliminate
the personal liability of directors of a corporation to the
corporation or its stockholders for monetary damages for a
breach of fiduciary duty as a director, except where the
director breached his duty of loyalty, failed to act in good
faith, engaged in intentional misconduct or knowingly violated a
law, authorized the payment of a dividend or approved a stock
repurchase in violation of the DGCL or obtained an improper
personal benefit.
Section 145 of the DGCL provides, among other things, that
a company may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or
in the right of the company) by reason of the fact that the
person is or was a director, officer, agent or employee of the
company or is or was serving at the companys request as a
director, officer, agent, or employee of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses, including attorneys fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by
the person in connection with such action, suit or proceeding.
The power to indemnify applies (a) if such person is
successful on the merits or otherwise in defense of any action,
suit or proceeding,
II-2
or (b) if such person acted in good faith and in a manner
he or she reasonably believed to be in the best interest, or not
opposed to the best interest, of the company, and with respect
to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. The power to indemnify
applies to actions brought by or in the right of the company as
well, but only to the extent of defense expenses (including
attorneys fees but excluding amounts paid in settlement)
actually and reasonably incurred and not to any satisfaction of
judgment or settlement of the claim itself, and with the further
limitation that in such actions no indemnification shall be made
in the event of any adjudication of negligence or misconduct in
the performance of his or her duties to the company, unless the
court believes that in the light of all the circumstances
indemnification should apply.
Section 174 of the DGCL provides, among other things, that
a director, who willfully or negligently approves of an unlawful
payment of dividends or an unlawful stock purchase or
redemption, may be held liable for such actions. A director who
was either absent when the unlawful actions were approved or
dissented at the time may avoid liability by causing his or her
dissent to such actions to be entered in the books containing
the minutes of the meetings of the board of directors at the
time such action occurred or immediately after such absent
director receives notice of the unlawful acts.
The following exhibits are filed herewith:
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Exhibit |
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No. |
|
Document |
|
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|
2 |
.1 |
|
Revised Third Amended Joint Plan of Reorganization under
Chapter 11 of the Bankruptcy Code for NII Holdings and NII
Holdings (Delaware), Inc. (incorporated by reference to
Exhibit 2.1 to NII Holdings Form 8-K, filed on
November 12, 2002). |
|
4 |
.1 |
|
Amended and Restated Certificate of Incorporation of NII
Holdings (incorporated by reference to Exhibit 3.1 to NII
Holdings Form 10-Q, filed on May 7, 2004). |
|
4 |
.2 |
|
Amended and Restated Bylaws of NII Holdings (incorporated by
reference to Exhibit 3.2 to NII Holdings
Form 10-K, filed on March 12, 2004). |
|
5 |
.1 |
|
Opinion of Bingham McCutchen LLP.* |
|
23 |
.1 |
|
Consent of PricewaterhouseCoopers LLP.** |
|
23 |
.2 |
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Consent of Deloitte & Touche LLP.** |
|
23 |
.3 |
|
Consent of Bingham McCutchen LLP (included in the opinion filed
as Exhibit 5.1). |
|
24 |
.1 |
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Power of Attorney.* |
(a) The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement: |
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(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933; |
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate |
|
II-3
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offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement; and |
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|
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement; |
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|
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
of this section do not apply if the registration statement is on
Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant
pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement. |
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(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. |
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(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering. |
|
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrants annual report
pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this registration statement to
be signed on its behalf by the undersigned, thereunto duly
authorized, in Fairfax County, Commonwealth of Virginia, on
June 1, 2005.
|
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Robert J. Gilker |
|
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Vice President and |
|
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General Counsel |
|
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the
following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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*
Steven
M. Shindler |
|
Chief Executive Officer and Chairman of the Board of Directors
(Principal Executive Officer) |
|
June 1, 2005 |
|
/s/ Byron R. Siliezar
Byron
R. Siliezar |
|
Vice President and Chief Financial Officer (Principal Financial
Officer) |
|
June 1, 2005 |
|
/s/ Daniel E. Freiman
Daniel
E. Freiman |
|
Vice President and Controller (Principal Accounting Officer) |
|
June 1, 2005 |
|
George
A. Cope |
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Director |
|
June , 2005 |
|
*
Steven
P. Dussek |
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Director |
|
June 1, 2005 |
|
*
Neal
P. Goldman |
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Director |
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June 1, 2005 |
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Charles
M. Herington |
|
Director |
|
June , 2005 |
|
*
Carolyn
Katz |
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Director |
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June 1, 2005 |
|
*
Donald
E. Morgan |
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Director |
|
June 1, 2005 |
II-5
|
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Signature |
|
Title |
|
Date |
|
|
|
|
|
|
*
John
W. Risner |
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Director |
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June 1, 2005 |
|
|
* |
Byron R. Siliezar, by signing his name hereto, signs this
document on behalf of each of the persons indicated by an
asterisk above pursuant to powers of attorney duly executed by
such persons and filed with the Securities and Exchange
Commission as part of the Registration Statement. |
June 1, 2005
|
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/s/ Byron R. Siliezar
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Byron R. Siliezar |
II-6
EXHIBIT INDEX
|
|
|
|
|
Exhibit |
|
|
No. |
|
Document |
|
|
|
|
2 |
.1 |
|
Revised Third Amended Joint Plan of Reorganization under
Chapter 11 of the Bankruptcy Code for NII Holdings and NII
Holdings (Delaware), Inc. (incorporated by reference to
Exhibit 2.1 to NII Holdings Form 8-K, filed on
November 12, 2002). |
|
4 |
.1 |
|
Amended and Restated Certificate of Incorporation of NII
Holdings (incorporated by reference to Exhibit 3.1 to NII
Holdings Form 10-Q, filed on May 7, 2004). |
|
4 |
.2 |
|
Amended and Restated Bylaws of NII Holdings (incorporated by
reference to Exhibit 3.2 to NII Holdings
Form 10-K, filed on March 12, 2004). |
|
5 |
.1 |
|
Opinion of Bingham McCutchen LLP.* |
|
23 |
.1 |
|
Consent of PricewaterhouseCoopers LLP.** |
|
23 |
.2 |
|
Consent of Deloitte & Touche LLP.** |
|
23 |
.3 |
|
Consent of Bingham McCutchen LLP (included in the opinion filed
as Exhibit 5.1). |
|
24 |
.1 |
|
Power of Attorney.* |
II-7