<PAGE> 1
RESTATED ARTICLES OF INCORPORATION
OF
NEXTEL INTERNATIONAL, INC.
Pursuant to RCW 23B.10.070, the following constitutes Restated Articles
of Incorporation of the undersigned, a Washington corporation. These Restated
Articles of Incorporation correctly set forth without change the corresponding
provisions of the Articles of Incorporation as heretofore amended and supersede
the original Articles of Incorporation and all amendments thereto.
ARTICLE I. NAME
The name of this corporation is Nextel International, Inc.
ARTICLE II. PURPOSES
This corporation is organized to engage in any business, trade or
activity which may be conducted lawfully by a corporation organized under
the Washington Business Corporation Act.
ARTICLE III. SHARES
(This Article was amended on 10/16/00.)
This corporation is authorized to issue a total of 2,160,037,500
shares of all classes of capital stock, divided into three classes as
follows:
1,500,000,000 shares of Class A Common Stock par value $0.001 per
share (the "Class A Common Stock");
650,000,000 shares of Class B Common Stock, par value $0.001 per
share (the "Class B Common Stock," and together with the Class A Common
Stock, the "Common Stock");
12,500 shares of Series A Exchangeable Redeemable Preferred Stock,
par value $10.00
25,000 shares of Series B Redeemable Preferred Stock, par value
$10.00
10,000,000 shares of preferred stock, par value $0.001 per share
(the "Undesignated Preferred Stock").
The Undesignated Preferred Stock may be issued from time to time
in one or more series in any manner permitted by law and the provisions
of these Restated Articles of Incorporation, as
--------------------------------------------------------------------------------
PAGE 1
<PAGE> 2
determined from time to time by the Board of Directors of this
corporation and stated in the resolution or resolutions providing for the
issuance thereof, prior to the issuance of any shares thereof. The Board
of Directors shall have the authority to fix and determine and to amend,
subject to these provisions, the designations, preferences, limitations
and relative rights of the shares of any series that is wholly unissued
or to be established. Unless otherwise specifically provided in the
resolution or resolutions establishing such series, the Board of
Directors shall further have the authority, after the issuance of shares
of a series whose number it has designated, to amend the resolution
establishing such series to decrease the number of shares of that series,
bit not below the number of shares of such at any time outstanding. In
case the number of shares of any series shall be so decreased, the shares
that are the subject of such decrease shall resume the status that they
had prior to the adoption of the resolution originally fixing the number
of shares of such series.
A. Terms Of Series A Exchangeable Redeemable Preferred Stock
1. Series A Stated Value.
1.1 Each share of Series A Exchangeable Redeemable Preferred
Stock (the "Series A Preferred Stock") will have a stated liquidation
value of $100,000 (the "Series A Stated Value"), which Series A Stated
Value will increase annually as set forth in Section 1.2. This
corporation will issue fractional shares of Series A Preferred Stock upon
the original issuance, transfer or exchange of a Series A Preferred Stock
share, unless this corporation and the holder of such Series A Preferred
Stock share agree upon a payment in lieu of any such fractional share.
1.2 The Series A Stated Value will increase at an annual rate
of accretion equal to 13.625% (the "Rate of Accretion"), which increase
will be calculated semiannually on June 30 and on December 31 of each
year during which any shares of Series A Preferred Stock remain
outstanding (each a "Semiannual Calculation Date"). All such increases
will be cumulative and will be calculated by multiplying the Series A
Stated Value as of the immediately prior Semiannual Calculation Date (or
in the case of the first semiannual increase on June 30, 1998, by the
original Series A Stated Value as set forth in Section 1.1) by 106.8125%,
the product of which will constitute the Series A Stated Value until the
next such semiannual calculation. All calculations required hereunder
will be computed on the basis of a 360-day year of 12
--------------------------------------------------------------------------------
PAGE 2
<PAGE> 3
30-day months.
2. Dividends. The Series A Preferred Stock has no profit
participation or dividend rights, except as required by law.
3. Series A Liquidation Rights.
3.1 In the event of any liquidation, dissolution or winding up
of the business of this corporation, whether voluntary or involuntary,
each holder of Series A Preferred Stock is entitled to receive, for each
share thereof, out of assets of this corporation legally available
therefor, a preferential amount in cash equal to (and not more than) the
sum of (A) the Series A Stated Value as of the immediately prior
Semiannual Calculation Date, plus (B) an amount equal to the amount of
all legally required dividends or distributions thereon, if any, payable
pursuant to Section 2, plus (C) any Interim Accreted Value. "Interim
Accreted Value" means, for purposes of this Section 3.1, an amount equal
to (i) the Rate of Accretion expressed as a daily rate from the
immediately prior Semiannual Calculation Date through the effective date
of the liquidation, dissolution or winding up, multiplied by (ii) the
Series A Stated Value as of the immediately prior Semiannual Calculation
Date. All preferential amounts to be paid to the holders of any
outstanding shares of Series A Preferred Stock and Series B Preferred
Stock in connection with a liquidation, dissolution or winding up will be
paid before the payment or setting apart for payment of any amount for,
or the distribution of any assets of this corporation to, the holders of
(x) any series of Preferred Stock whose terms provide that the holders of
Series A Preferred Stock should receive preferential payment with respect
to such distribution (to the extent of such preference) or (y) common
stock. If in any such distribution the assets of this corporation are
insufficient to pay the holders of the outstanding shares of the Series A
Preferred Stock (and the holders of any Series B Preferred Stock and any
other class or series of capital stock ranking on a parity with the
Series A Preferred Stock as to distributions in the event of a
liquidation, dissolution or winding up of this corporation) the full
amounts to which they may be entitled, such holders will share ratably in
any distribution of assets in accordance with the sums which would be
payable on such distribution if all sums payable thereon were paid in
full. In liquidation, shares of Series A Preferred Stock and Series B
Preferred Stock will rank on a pari passu basis.
3.2 Holders of shares of Series A Preferred Stock will not be
entitled to receive any amounts with respect to any liquidation,
--------------------------------------------------------------------------------
PAGE 3
<PAGE> 4
dissolution or winding up of this corporation other than the amounts
provided in this Section 3. Neither a merger nor consolidation of this
corporation into or with another corporation nor a merger or
consolidation of any other corporation into or with this corporation, nor
a sale, transfer, mortgage, pledge or lease of all or any part of the
assets of this corporation will be deemed to be a liquidation,
dissolution or winding up of this corporation for purposes of this
Section 3.
4. Series A Voting Rights.
4.1 On matters as to which they are entitled to vote, the
holders of Series A Preferred Stock will be entitled to the number of
votes per share (calculated as of the date of any such vote) that is
equal to the Series A Stated Value as of the immediately prior Semiannual
Calculation Date divided by 100,000. The holders of Series A Preferred
Stock will vote separately as a class on all matters as to which they are
entitled to vote, except as otherwise provided herein. Any action that
may be taken hereunder by the holders of the Series A Preferred Stock at
a meeting may be taken by the written consent of the holders of shares of
Series A Preferred Stock outstanding and entitled to vote thereon.
4.2 Unless it has been approved by the vote of the holders of a
majority of the shares of Series A Preferred Stock and Series B Preferred
Stock outstanding, voting together as if they constituted a single class,
no amendment to the Restated Articles of Incorporation of this
corporation can become effective if it (A) creates or authorizes the
creation of any class or series of capital stock (other than the Series B
Preferred Stock) ranking on parity with or superior to the Series A
Preferred Stock or the Series B Preferred Stock in any respect or (B)
alters or changes the powers, preferences or rights of shares of Series A
Preferred Stock or Series B Preferred Stock in a manner adverse to the
holders of Series A Preferred Stock and Series B Preferred Stock.
4.3 Unless holders of a majority of the shares of Series A
Preferred Stock and Series B Preferred Stock outstanding, voting together
as if they constituted a single class, have given their approval, this
corporation is not authorized to merge, reorganize, recapitalize,
consolidate or consummate a share exchange (each a "Transaction") if (A)
the GAAP Net Worth of the successor or resulting entity on a pro forma
basis after giving effect to the Transaction (and any related
transactions) is not equal to or greater than the GAAP Net Worth of this
corporation immediately
--------------------------------------------------------------------------------
PAGE 4
<PAGE> 5
prior to the Transaction, or (B) the priority of the Series A Preferred
Stock or the Series B Preferred Stock in the capital stock of the
successor or resulting entity will rank on parity with or junior to any
class or series of capital stock that has been created or issued without
the approval of the Series A Preferred Stock and the Series B Preferred
Stock pursuant to Section 4.2. "GAAP Net Worth" means the net worth of
this corporation or any successor or resulting entity, as the case may
be, calculated in accordance with generally accepted accounting
principles, as in effect from time to time, on a basis consistent with
past practice.
4.4 No dividend or other distribution will be declared or paid
on the common stock or any other stock of this corporation ranking junior
to or ranking pari passu with the Series A Preferred Stock (except any
outstanding Series B Preferred Stock) without the prior consent of the
holders of a majority of the shares of Series A
Preferred Stock outstanding, and until any legally required
dividends or distributions owing on the Series A Preferred Stock have
been paid in full.
4.5 In addition to the voting rights set forth herein, the
holders of Series A Preferred Stock will be entitled to exercise such
voting rights as may be provided to them under Washington law to the
extent such voting rights are not inconsistent with those set forth
herein. Nothing herein should be read or construed as limiting such
voting rights.
5. Exchange for Series B Preferred Stock.
5.1 Series A Exchange Right.
5.1.1 Each holder of Series A Preferred Stock may, at any time
following a Exchange Trigger Event, exchange any or all of such holder's
shares of Series A Preferred Stock into such number of fully paid and
non-assessable shares of Series B Preferred Stock as equals (A) the sum
of the Series A Stated Value as of the immediately prior Semiannual
Calculation Date plus any Interim Accreted Value of such Series A
Preferred Stock, multiplied by (B) the number of shares of Series A
Preferred Stock being exchanged, divided by (C) the Series B Stated Value
(as defined in Section 1 of the Terms of Series B Redeemable Preferred
Stock). For purposes of this Section 5.1.1, "Interim Accreted Value"
means an amount equal to (i) the Rate of Accretion expressed as a daily
rate from the immediately prior Semiannual Calculation Date through the
date of exchange,
--------------------------------------------------------------------------------
PAGE 5
<PAGE> 6
multiplied by (ii) the Series A Stated Value as of the immediately prior
Semiannual Calculation Date. To the extent necessary, this corporation
will issue fractional shares of Series B Preferred Stock upon any
exchange pursuant to this Section 5, unless this corporation and the
holder of the Series A Preferred Stock being exchanged agree upon a
payment in lieu of any such fractional share. In order to exercise the
exchange privilege under this Section 5.1.1, a holder of shares of Series
A Preferred Stock must give written notice to this corporation at its
principal office stating the holder's name and address and the number of
shares of Series A Preferred Stock such holder elects to exchange.
5.1.2 "Exchange Trigger Event" means (A) the recapitalization or
reorganization of this corporation; (B) a registered, underwritten public
offering of any capital stock of this corporation; (C) the sale or other
disposition by Nextel Communications, Inc., a Delaware corporation
("Nextel Communications") or a wholly owned subsidiary of Nextel
Communications, of shares of common stock of this corporation or (D) the
issuance of shares of common stock by this corporation, such that
following any event covered by clause (C) or (D) above, Nextel
Communications owns less than fifty percent (50%) of this corporation's
outstanding shares of common stock.
5.1.3 At such time as any certificate or certificates
representing the Series A Preferred Stock that has been exchanged are
surrendered to this corporation, this corporation will issue and deliver
a certificate or certificates representing the appropriate number of
shares of Series B Preferred Stock (calculated pursuant to Section 5.1.1)
to each former holder of Series A Preferred Stock participating in the
exchange. In case of the exchange under Section 5.1.1 of only a part of
the shares of Series A Preferred Stock represented by a certificate
surrendered to this corporation, this corporation will forthwith issue
and deliver a new certificate for the number of shares of Series A
Preferred Stock that have not been exchanged. Until any certificate or
certificates representing Series A Preferred Stock that has been
exchanged are surrendered and a certificate or certificates representing
the Series B Preferred Stock into which such Series A Preferred Stock has
been exchanged has been issued and delivered, the certificate or
certificates representing the shares of Series A Preferred Stock that
have been exchanged will represent the shares of Series B Preferred Stock
into which such shares of Series A Preferred Stock have been exchanged.
This corporation will pay all documentary, stamp or similar issue or
transfer tax, if any, due on the issue of shares of Series B
--------------------------------------------------------------------------------
PAGE 6
<PAGE> 7
Preferred Stock issuable upon exchange of the Series A Preferred Stock.
6. Redemption.
6.1 Corporation's Right to Redeem. This corporation may (A) in
its sole discretion and at any time, redeem all shares of the Series A
Preferred Stock outstanding or (B) with the prior consent of the holders
of a majority of such shares outstanding, redeem a portion of the Series
A Preferred Stock then outstanding, on a pro rata basis, in either case
at a total per share redemption price equal to the sum of the Series A
Stated Value as of the immediately prior Semiannual Calculation Date plus
any Interim Accreted Value. "Interim Accreted Value," for purposes of
this Section 6.1, means an amount equal to (i) the Rate of Accretion
expressed as a daily rate from the immediately prior Semiannual
Calculation Date through the Series A Redemption Date, multiplied by (ii)
the Series A Stated Value as of the immediately prior Semiannual
Calculation Date.
6.2 Series A Redemption Notice.
6.2.1 Subject to the requirements of Section 6.1, this
corporation may call all or a portion of the outstanding shares of Series
A Preferred Stock for redemption and set a date for the redemption (the
"Series A Redemption Date"). Notice of such proposed redemption (the
"Series A Redemption Notice") must be mailed at least 45 days prior to
the Series A Redemption Date to all holders of shares of Series A
Preferred Stock at their respective addresses as the same appear on the
stock record books of this corporation. Each Series A Redemption Notice
will state (A) the Series A Redemption Date, (B) the Series A Redemption
Price, (C) the place or places where such shares of Series A Preferred
Stock are to be surrendered, and (D) that legally required dividends or
distributions, if any, on shares of Series A Preferred Stock to be
redeemed will cease to accrue on the Series A Redemption Date. No defect
in any such notice as to any shares of Series A Preferred Stock will
affect the proceedings for the redemption of any shares of Series A
Preferred Stock.
6.2.2 Upon surrender in accordance with the Series A Redemption
Notice of the certificates for any shares of Series A Preferred Stock so
redeemed (properly endorsed or assigned for transfer, if the Board of
Directors so requires and the notice so states), such shares of Series A
Preferred Stock will be redeemed
--------------------------------------------------------------------------------
PAGE 7
<PAGE> 8
by this corporation, which will make payment to the surrendering holder
in an amount equal to the product of the applicable Series A Redemption
Price multiplied by the number of shares of Series A Preferred Stock
being surrendered by such holder for redemption.
6.3 Payment Prior to Series A Redemption Date.
6.3.1 If a Series A Redemption Notice is duly given as provided
for above, or if this corporation has given to the bank or trust company
hereinafter referred to irrevocable authorization to give or complete
such Series A Redemption Notice, and if prior to the applicable Series A
Redemption Date the funds necessary for such redemption have been
deposited by this corporation with a bank or trust company in good
standing (which bank or trust company will have been identified in a
written notice given to the holders whose shares of Series A Preferred
Stock are to be redeemed), organized under the laws of the United States
of America or a State thereof, having a capital surplus and undivided
profits aggregating at least $100,000,000 according to its last published
statement of condition, in trust for the pro rata benefit of the holders
of the shares of Series A Preferred Stock so called for or otherwise
subject to redemption, so as to be, and to continue to be, available
therefor, then, notwithstanding that any certificate for shares of Series
A Preferred Stock so called for or otherwise subject to redemption may
not have been surrendered for cancellation, all shares of Series A
Preferred Stock so called for or otherwise subject to redemption will no
longer be deemed to be outstanding on and after such Series A Redemption
Date, and all rights with respect to such shares will forthwith cease and
terminate at the close of business on such Series A Redemption Date,
except only the right of the holders thereof to receive, out of the funds
so set aside in trust, the amount payable on redemption thereof, without
interest. Any interest accrued on any funds so deposited will be the
property of this corporation and will be paid to this corporation from
time to time.
6.3.2 Any funds set aside or deposited, as the case may be, in
accordance with Section 6.3.1 that remain unclaimed at the end of one
year from the applicable Series A Redemption Date will be released or
repaid to this corporation, after which the holders of the shares of
Series A Preferred Stock so called for redemption will look only to this
corporation for payment of the amount payable on redemption thereof,
without interest, subject to the applicable law of escheat.
--------------------------------------------------------------------------------
PAGE 8
<PAGE> 9
7. Other Provisions.
7.1 Issuance of Shares. This corporation will not issue, or
enter into any commitment to issue, shares of Series A Preferred Stock
except (A) pursuant to the terms of any agreement in effect on the date
that the Articles of Amendment of the Restated Articles of Incorporation
of this corporation establishing the powers, preferences and rights of
the Series A Preferred Stock were originally filed with the Secretary of
State of the State of Washington, or (B) such other issuances or issuance
commitments as have been approved in advance by the vote of the holders
of a majority of the shares of Series A Preferred Stock and Series B
Preferred Stock outstanding, voting together as if they constituted a
single class.
7.2 Cancellation of Shares of Series A Preferred Stock. No
share or shares of Series A Preferred Stock acquired by this corporation
for any reason can be reissued, and all such shares will be canceled,
retired and eliminated from the shares of Series A Preferred Stock which
this corporation is authorized to issue.
7.3 Reservation of Shares. This corporation will at all times
reserve from its authorized Series B Preferred Stock a sufficient number
of shares to provide for exchange of all shares of Series A Preferred
Stock from time to time outstanding.
7.4 Notices. This corporation will provide to each holder of
shares of Series A Preferred Stock a copy of any materials delivered to
the holders of any other shares of this corporation's capital stock by or
on behalf of this corporation at the same time such materials are being
delivered to such other holders.
7.5 Record Holders. This corporation and its transfer agent, if
any, for the shares of Series A Preferred Stock, may deem and treat the
record holder of any shares of Series A Preferred Stock as the sole true
and lawful owner thereof for all purposes, and neither this corporation
nor any such transfer agent will be affected by any notice to the
contrary.
B. Terms of Series B Redeemable Preferred Stock
1. Series B Stated Value. Each share of Series B Redeemable
Preferred Stock (the "Series B Preferred Stock") will have a liquidation
preference at a stated value, calculated at the time the first share(s)
of Series A Preferred Stock are exchanged into share(s) of Series B
Preferred Stock, equal to the Series A Stated Value as of the immediately
prior Semiannual Calculation
--------------------------------------------------------------------------------
PAGE 9
<PAGE> 10
Date plus an amount equal to any Interim Accreted Value (the "Series B
Stated Value"). "Interim Accreted Value," for the purposes of this
Section 1, means an amount equal to (i) the Rate of Accretion expressed
as a daily rate from the immediately prior Semiannual Calculation Date
through the date of exchange, multiplied by (ii) the Series A Stated
Value as of the immediately prior Semiannual Calculation Date. This
corporation will issue fractional shares of Series B Preferred Stock upon
the original issuance, transfer or exchange of a Series B Preferred Stock
share, unless this corporation and the holder of such Series B Preferred
Stock share agree upon a payment in lieu of any such fractional share.
All future issuances of Series B Preferred Stock, following the first
such issuance, will be made at the Series B Stated Value.
2. Dividends.
2.1(a) Beginning on their date of issuance, holders of Series B
Preferred Stock will be entitled to receive, when, as and if declared by
the Board of Directors, out of funds legally available therefor,
dividends on each share of Series B Preferred Stock outstanding held by
them, at a rate per annum equal to 13.625% of the Series B Stated Value,
or a daily rate of 0.0378% of the Series B Stated Value (the "Daily
Rate"). Such dividends will be cumulative, whether or not earned or
declared, and will be payable quarterly in arrears on March 31, June 30
and September 30, December 31 (each a "Distribution Date") of each year
or portion thereof ending on or prior to March 12, 2010 (such twelve-year
period, the "Initial Term") during which any shares of Series B Preferred
Stock remain outstanding and also shall be payable in arrears on March
12, 2010 with respect to the period from January 1, 2010 to March 12,
2010 if any shares of Series B Preferred Stock remain outstanding.
(b) During each twelve-month period beginning on March 13, 2010
and on each subsequent March 13 (each, a "Subsequent Year"), holders of
Series B Preferred Stock will be entitled to receive, when, as and if
declared by the Board of Directors, out of funds legally available
therefor, dividends on each share of Series B Preferred Stock outstanding
held by them, at a rate per annum equal to 18.00% of the Series B Stated
Value, or a daily rate of 0.0500% of the Series B Stated Value (the
"Subsequent Year Daily Rate"). Such dividends will be cumulative, whether
or not earned or declared, and will be payable on June 12, September 12,
and December 12, March 12 in each such Subsequent Year, commencing on
June 12, 2010
--------------------------------------------------------------------------------
PAGE 10
<PAGE> 11
(each, a "Subsequent Year Distribution Date") if any shares of Series B
Preferred Stock remain outstanding.
2.2 Dividends on the Series B Preferred Stock will be will be
computed on the basis of a 360-day year of twelve 30-day months.
2.3 References herein to the "Appropriate Year" shall mean a
year during the Initial Term or a Subsequent Year, as appropriate to the
context. References herein to the "Appropriate Daily Rate" shall mean the
Daily Rate or a Subsequent Year Daily Rate, as appropriate to the
context. References herein to an "Appropriate Distribution Date" shall
mean a Distribution Date or a Subsequent Year Distribution Date, as
appropriate to the context.
2.4 Dividends payable on the outstanding shares of Series B
Preferred Stock shall be paid in cash or, at the option of this
corporation, in additional fully paid and non-assessable shares of Series
B Preferred Stock having an aggregate Series B Stated Value equal to the
amount of such dividends ("PIK Dividend Shares"); PROVIDED, THAT, PIK
Dividend Shares may not be issued to pay any amount of accrued but unpaid
dividends or distributions due pursuant to Section 3 below, or any amount
of accrued but unpaid dividends or distributions due pursuant to Section
5 below. All PIK Dividend Shares, from and after their issuance on the
Appropriate Distribution Date, shall have the same rights and privileges
as any other outstanding shares of Series B Preferred Stock.
3. Series B Liquidation Rights.
3.1 In the event of any liquidation, dissolution or winding up
of the business of this corporation, whether voluntary or involuntary,
each holder of Series B Preferred Stock will be entitled to receive, for
each share thereof, out of assets of this corporation legally available
therefor, a preferential amount in cash equal to (and not more than) the
sum of (A) the Series B Stated Value plus (B) an amount equal to the
amount of all declared (or due to be declared), but unpaid dividends or
distributions thereon, if any, payable pursuant to Section 2.1 during
each Appropriate Year, plus an amount equal to the Appropriate Daily Rate
multiplied by the Series B Stated Value, multiplied by the number of days
since the immediately prior Appropriate Distribution Date. All
preferential amounts to be paid to the holders of any outstanding shares
of Series B Preferred Stock and Series A Preferred Stock in connection
with such
--------------------------------------------------------------------------------
PAGE 11
<PAGE> 12
liquidation, dissolution or winding up will be paid before the payment or
setting apart for payment of any amount for, or the distribution of any
assets of this corporation to, the holders of (i) any other series of
preferred stock whose terms provide that the holders of Series B
Preferred Stock should receive preferential payment with respect to such
distribution (to the extent of such preference) or (ii) common stock. If
in any such distribution the assets of this corporation are insufficient
to pay the holders of the outstanding shares of the Series B Preferred
Stock (and the holders of any Series A Preferred Stock and any class or
series of capital stock ranking on a parity with the Series B Preferred
Stock as to distributions in the event of a liquidation, dissolution or
winding up of this corporation) the full amounts to which they may be
entitled, such holders will share ratably in any distribution of assets
in accordance with the sums which would be payable upon such distribution
if all sums payable thereon were paid in full. In liquidation, shares of
Series B Preferred Stock and Series A Preferred Stock will rank on a pari
passu basis.
3.2 Holders of shares of Series B Preferred Stock will not be
entitled to receive any amounts with respect to any liquidation,
dissolution or winding up of this corporation other than the amounts
provided in this Section 3. Neither a merger nor consolidation of this
corporation into or with another corporation nor a merger or
consolidation of any other corporation into or with this corporation, nor
a sale, transfer, mortgage, pledge or lease of all or any part of the
assets of this corporation will be deemed to be a liquidation,
dissolution or winding up of this corporation for purposes of this
Section 3.
4. Series B Voting Rights.
4.1 On all matters as to which they are entitled to vote, the
holders of Series B Preferred Stock will be entitled to the number of
votes per share (calculated as of the date of any such vote) that is
equal to the Series B Stated Value divided by 100,000. The holders of
Series B Preferred Stock will vote separately as a class on all matters
as to which they are entitled to vote, except as otherwise provided
herein. Any action that may be taken hereunder by the holders of the
Series B Preferred Stock at a meeting may be taken by the written consent
of the holders of shares of Series B Preferred Stock outstanding and
entitled to vote thereon.
4.2 Immediately following the issuance of any shares of Series
B Preferred Stock, the number of Directors constituting the
--------------------------------------------------------------------------------
PAGE 12
<PAGE> 13
Board of Directors will be adjusted to permit the holders of the majority
of the then outstanding shares of Series B Preferred Stock, voting
separately as a class, to elect one additional Director to the Board of
Directors (the "Series B Director"). The Series B Director's initial term
will expire at the next regularly scheduled meeting of the holders of the
common stock of this corporation, at which meeting the holders of shares
of Series B Preferred Stock outstanding voting separately as a class will
be entitled to elect one Director. Any individual elected to the Board of
Directors by vote of the Series B Preferred Stock pursuant to this
Section 4.2 is referred to herein as a "Series B Director."
4.3 A Series B Director may only be removed from office by the
vote of the holders of a majority of shares of Series B Preferred Stock
outstanding, voting separately as a class. Except as set forth in Section
4.7, any vacancy for the Series B Director position may be filled only by
the vote of the holders of a majority of shares of Series B Preferred
Stock outstanding, voting separately as a class.
4.4 If dividends on the Series B Preferred Stock are in arrears
and unpaid for four consecutive quarterly periods or for any six
quarterly periods (whether or not consecutive) (each, a "Dividend
Default"), then the number of Directors constituting the Board of
Directors will be adjusted to permit the holders of the majority of the
then outstanding shares of Series B Preferred Stock, voting separately as
a class, to elect an additional Director (the "Series B Default
Director"). For the purpose of determining the number of quarterly
periods for which accrued dividends have not been paid, any accrued and
unpaid dividend that is subsequently paid will not be treated as unpaid.
4.5 The right of the holders of Series B Preferred Stock to
elect the Series B Default Director as described above will continue
until such time as all accumulated dividends that are in arrears on the
Series B Preferred Stock are paid in full, at which time the term of any
Series B Default Director elected pursuant to Section 4.4 hereof will
terminate and the number of Directors constituting the Board of Directors
will be reduced to the number necessary to reflect the termination of the
right of the holders of the Series B Preferred Stock to elect a Series B
Default Director, subject always to the same provisions for the renewal
and divestment of such special voting rights in the case of any future
Dividend Default. At any time after voting power to elect a Series B
Default Director has become vested and is continuing in the holders of
shares of the Series B Preferred Stock pursuant to
--------------------------------------------------------------------------------
PAGE 13
<PAGE> 14
Section 4.4 hereof, or if a vacancy exists in the office of the Series B
Default Director elected by the holders of shares of the Series B
Preferred Stock, an officer of this corporation may, and upon the written
request of the record holders of at least 25% of the shares of Series B
Preferred Stock then outstanding addressed to the secretary of this
corporation must, call a special meeting of the holders of the Series B
Preferred Stock, for the purpose of electing a new Series B Default
Director. If such meeting is called by an officer of this corporation
within 30 days after personal service of said written request upon the
secretary of this corporation, or within 30 days after mailing the same
within the United States by certified mail, addressed to the secretary of
this corporation at its principal executive offices, then the holders of
record of at least 25% of the shares of the Series B Preferred Stock
outstanding may designate in writing one of their number to call such
meeting at the expense of this corporation, and such meeting may be
called by the person so designated upon the notice required for the
annual meetings of shareholders of this corporation and will be held at
the place for holding the annual meetings of shareholders or such other
place in the United States as may be designated in such notice.
Notwithstanding the provisions of this Section 4.5, no such special
meeting need be called if any such request is received less than 40 days
before the day fixed for the next ensuing annual or special meeting of
shareholders of this corporation. This corporation will provide any
holder of shares of the Series B Preferred Stock so designated access to
the lists of holders of shares of the Series B Preferred Stock for
purposes of calling a meeting pursuant to the provisions of this Section
4.5.
4.6 At any meeting held for the purpose of electing a Series B
Director or a Series B Default Director, the presence in person or by
proxy of the holders of at least a majority of the shares of Series B
Preferred Stock outstanding will be required to constitute a quorum of
such Series B Preferred Stock.
4.7 Any vacancy occurring in the office of the Series B
Director can be filled by a then serving Series B Default Director, if
any, and any vacancy occurring in the office of the Series B Default
Director, if applicable, can be filled by any then serving Series B
Director, in either case unless and until the holders of a majority of
the shares of Series B Preferred Stock outstanding elect another person
to fill any such vacancy.
--------------------------------------------------------------------------------
PAGE 14
<PAGE> 15
4.8 Upon the redemption of the last share of Series B Preferred
Stock then outstanding, the number of Directors constituting the Board of
Directors will be adjusted to eliminate any then existing Series B
Director or Series B Default Director seats, subject always to the
provisions of this Section 4 for the renewal and divestment of such
special Series B Preferred Stock voting rights on the subsequent issuance
of any shares of Series B Preferred Stock.
4.9 Unless it has been approved by the vote of the holders of a
majority of shares of Series A Preferred Stock and Series B Preferred
Stock outstanding, each voting together as if they constituted a single
class, no amendment to the Restated Articles of Incorporation of this
corporation can become effective if it (A) creates or authorizes the
creation of any class or series of capital stock (other than the Series A
Preferred Stock) ranking on parity with or superior to the Series A
Preferred Stock or the Series B Preferred Stock in any respect or (B)
alters or changes the powers, preferences or rights of shares of Series B
Preferred Stock in a manner adverse to the holders of the Series A
Preferred Stock or the Series B Preferred Stock.
4.10 Unless holders of a majority of shares of Series A
Preferred Stock and Series B Preferred Stock outstanding, voting together
as if they constituted a single class, have given their approval, this
corporation is not authorized to participate or engage in any Transaction
if (A) the GAAP Net Worth of the successor or resulting entity on a pro
forma basis after giving effect to the Transaction (and any related
transactions) is not equal to or greater than the GAAP Net Worth of this
corporation immediately prior to the Transaction or (B) the priority of
the Series B Preferred Stock in the capital stock of the successor or
resulting entity is on parity with or junior to any class or series of
capital stock that has been created or issued without the approval of the
Series A Preferred Stock and Series B Preferred Stock pursuant to Section
4.9.
4.11 No dividend or other distribution will be declared or paid
on the common stock or any other stock of this corporation ranking junior
to or ranking pari passu with the Series B Preferred Stock (except as
required by law on any outstanding Series A Preferred Stock) without the
prior consent of the holders of a majority of the shares of Series B
Preferred Stock outstanding and until any dividends or distributions
owing on the Series B Preferred Stock have been paid in full.
--------------------------------------------------------------------------------
PAGE 15
<PAGE> 16
4.12 In addition to the voting rights set forth herein, the
holders of Series B Preferred Stock will be entitled to exercise such
voting rights as may be provided to them under Washington law to the
extent such voting rights are not inconsistent with those set forth
herein. Nothing herein should be read or construed as limiting such
voting rights.
5. Redemption of Series B Preferred Stock.
5.1 Corporation's Right to Redeem. This corporation may (A) in
its sole discretion and at any time, redeem all shares of the Series B
Preferred Stock outstanding, or (B) with the consent of the holders of a
majority of such shares outstanding, redeem a portion of the Series B
Preferred Stock then outstanding, on a pro rata basis, in either case at
a total per share redemption price equal to the sum of the Series B
Stated Value, plus an amount equal to the amount of all declared (or due
to be declared), but unpaid dividends or distributions thereon, if any,
payable pursuant to Section 2.1, through the immediately prior
Appropriate Distribution Date, plus an amount equal to the product of the
Appropriate Daily Rate multiplied by the Series B Stated Value,
multiplied by the number of days since the immediately prior Appropriate
Distribution Date (the "Series B Redemption Price").
5.2 Series B Redemption Notice.
5.2.1 Subject to the provisions of Section 5.1, this corporation
may call all or a portion of the outstanding shares of Series B Preferred
Stock for redemption and set a date for the redemption (the "Series B
Redemption Date"). Notice of a proposed redemption pursuant to Section
5.1 (each such notice a "Series B Redemption Notice") must be mailed at
least 45 days prior to the Series B Redemption Date to all holders of
shares of Series B Preferred Stock at their respective addresses as the
same appear on the stock record books of this corporation. Each Series B
Redemption Notice will state (A) the Series B Redemption Date, (B) the
Series B Redemption Price, (C) the place or places where such shares of
Series B Preferred Stock are to be surrendered, and (D) that dividends on
shares of Series B Preferred Stock to be redeemed will cease to accrue on
the Series B Redemption Date. No defect in any such notice as to any
shares of Series B Preferred Stock will affect the proceedings for the
redemption of any shares of Series B Preferred Stock.
5.2.2 Upon surrender in accordance with the Series B
--------------------------------------------------------------------------------
PAGE 16
<PAGE> 17
Redemption Notice of the certificates for any shares of Series B
Preferred Stock so redeemed (properly endorsed or assigned for transfer,
if the Board of Directors so requires and the notice so states), such
shares of Series B Preferred Stock will be redeemed by this corporation,
which will make payment to the surrendering holder in an amount equal to
the product of the applicable Series B Redemption Price, multiplied by
the number of shares of Series B Preferred Stock being surrendered by
such holder for redemption.
5.3 Payment Prior to Series B Redemption Date.
5.3.1 If a Series B Redemption Notice is duly given as provided
for above, or if this corporation has given to the bank or trust company
hereinafter referred to irrevocable authorization to give or complete
such Series B Redemption Notice, and if prior to the applicable Series B
Redemption Date the funds necessary for such redemption will have been
deposited by this corporation with a bank or trust company in good
standing (which bank or trust company will have been identified in a
written notice given to the holders whose shares of Series B Preferred
Stock are to be redeemed), organized under the laws of the United States
of America or a State thereof, having a capital surplus and undivided
profits aggregating at least $100,000,000 according to its last published
statement of condition, in trust for the pro rata benefit of the holders
of the shares of Series B Preferred Stock so called for or otherwise
subject to redemption, so as to be, and to continue to be, available
therefor, then, notwithstanding that any certificate for shares of Series
B Preferred Stock so called for or otherwise subject to redemption may
not have been surrendered for cancellation, all shares of Series B
Preferred Stock so called for or otherwise subject to redemption will no
longer be deemed to be outstanding on and after such Series B Redemption
Date and all rights with respect to such shares will forthwith cease and
terminate at the close of business on such Series B Redemption Date,
except only the right of the holders thereof to receive, out of the funds
so set aside in trust, the amount payable on redemption thereof, without
interest. Any interest accrued on any funds so deposited will be the
property of this corporation and will be paid to this corporation from
time to time.
5.3.2 Any funds set aside or deposited, as the case may be, in
accordance with Section 5.3.1 that remain unclaimed at the end of one
year from the applicable Series B Redemption Date will be released or
repaid to this corporation, after which the holders of the shares of
Series B Preferred Stock so called for
--------------------------------------------------------------------------------
PAGE 17
<PAGE> 18
redemption will look only to this corporation for payment of the amount
payable on redemption thereof, without interest, subject to the
applicable law of escheat.
6. Other Provisions.
6.1 Issuance of Shares. This corporation will not issue, or
enter into any commitment to issue, shares of Series B Preferred Stock
except (A) in exchange of shares of Series A Preferred Stock on the terms
and subject to the conditions set forth in the Terms of Series A
Exchangeable Redeemable Preferred Stock, or (B) as PIK Dividend Shares as
contemplated in accordance with Section 2.4 above, or (C) such other
issuances or issuance as have been approved in advance by the vote of the
holders of a majority of the shares of any Series A Preferred Stock and
Series B Preferred Stock outstanding, voting together as if they
constituted a single class.
6.2 Cancellation of Shares of Series B Preferred Stock. No
share or shares of Series B Preferred Stock acquired by this corporation
for any reason will be reissued, and all such shares will be canceled,
retired and eliminated from the shares of Series B Preferred Stock which
this corporation is authorized to issue.
6.3 Reservation of Shares. This corporation will at all times
reserve from its authorized Series B Preferred Stock a sufficient number
of shares to provide for exchange of all shares of Series A Preferred
Stock from time to time outstanding and for payment of the maximum amount
of PIK Dividend Shares issuable in respect of all Shares of Series B
Preferred Stock from time to time outstanding.
6.4 Notices. This corporation will provide to each holder of
shares of Series B Preferred Stock a copy of any materials delivered to
the holders of any other shares of this corporation's capital stock by or
on behalf of this corporation at the same time such materials are being
delivered to such other holders.
6.5 Record Holders. This corporation and its transfer agent, if
any, for the Series B Preferred Stock, may deem and treat the record
holder of any shares of Series B Preferred Stock as the sole true and
lawful owner thereof for all purposes, and neither this corporation nor
any such transfer agent will be affected by any notice to the contrary.
C. Terms of Common Stock; Voting; Directors
--------------------------------------------------------------------------------
PAGE 18
<PAGE> 19
1. Voting Rights.
1.1 Each share of Class A Common Stock shall be entitled to one
vote per share in person or by proxy on all matters submitted to a vote
of the stockholders of the corporation on which the holders of the Class
A Common Stock are entitled to vote.
1.2 Each share of Class B Common Stock shall be entitled to ten
votes per share in person or by proxy on all matters submitted to a vote
of the stockholders of the Corporation on which the holders of the Class
B Common Stock are entitled to vote.
1.3 Except as otherwise required in this these Articles of
Incorporation, the Bylaws or by applicable law, the holders of shares of
Common Stock shall vote together as one class on all matters submitted to
a vote of stockholders of the corporation generally (or if any holders of
shares of Preferred Stock are entitled to vote together with the holders
of Common Stock, as a single class with such holders of shares of
preferred stock).
2. Dividends and Distributions.
2.1 Subject to the preferences applicable to the Preferred
Stock outstanding at any time, if any, the holders of shares of Common
Stock shall be entitled to receive such dividends and other distributions
in cash, property or shares of stock of the corporation as may be
declared thereon by the Board of Directors from time to time out of
assets or funds of the corporation legally available therefor; provided,
that, subject to the provisions of this Section, the corporation shall
not pay dividends or make distributions to any holders of any class of
Common Stock unless simultaneously with such dividend or distribution, as
the case may be, the corporation makes the same dividend or distribution
with respect to each outstanding share of Common Stock regardless of
class.
2.2 In the case of dividends or other distributions payable in
Class A Common Stock or Class B Common Stock, including distributions
pursuant to stock splits or divisions of Class A Common Stock or Class B
Common Stock, only shares of Class A Common Stock shall be distributed
with respect to Class A Common Stock and only shares of Class B Common
Stock shall be distributed with respect to Class B Common Stock. In the
case of any such dividend or distribution payable in shares of Class A
Common Stock or Class B Common Stock, the number
--------------------------------------------------------------------------------
PAGE 19
<PAGE> 20
of shares of each class of Common Stock payable per share of each such
class of Common Stock shall be equal in number.
2.3 In the event the Corporation shall be liquidated (either
partial or complete), dissolved or wound up, whether voluntarily or
involuntarily, the holders of the Class A Common Stock and the Class B
Common Stock shall be entitled to share ratably, as a single class, in
the remaining net assets of the corporation; that is, an equal amount of
net assets for each share of Class A Common Stock and Class B Common
Stock.
3. Conversion of Class B Common Stock.
3.1 Optional Conversion by the Holder. Each holder of Class B
Common Stock shall be entitled to convert, at any time and from time to
time, any or all of the shares of such holder's Class B Common Stock on a
one-for-one basis, into the same number of fully paid and non-assessable
shares of Class A Common Stock. Such right shall be exercised by the
surrender to the corporation of the certificate or certificates
representing the shares of Class B Common Stock to be converted at any
time during normal business hours at the principal executive offices of
the corporation or at the office of the corporation's transfer agent (the
"Transfer Agent"), accompanied by a written notice of the holder of such
shares stating that such holder desires to convert such shares, or a
stated number of the shares represented by such certificate or
certificates, into an equal number of shares of Class A Common Stock, and
(if so required by the corporation or the Transfer Agent) by instruments
of transfer, in form satisfactory to the corporation and to the Transfer
Agent, duly executed by such holder or such holder's duly authorized
attorney, and transfer tax stamps or funds therefor, if required pursuant
to Article III, Section 3.7.
3.2 Automatic Conversion Upon Transfer.
3.2.1 Each share of Class B Common Stock Transferred (as defined
in Article III, Section 3.2.4), directly or indirectly, by a beneficial
owner (as defined in Article III Section 3.2.4) of Class B Common Stock
(a "Class B Shareholder") to one or more individuals, corporations,
limited liability companies, partnerships, joint ventures, trusts,
unincorporated organizations or other entities (each, a "Person"), other
than a Permitted Transferee shall automatically convert into one fully
paid and non-assessable share of Class A Common Stock upon such
disposition. Any purported transferee of shares of Class B Common Stock
--------------------------------------------------------------------------------
PAGE 20
<PAGE> 21
purported to be Transferred in violation of this Article III, Section
3.2.1 shall have no rights as a shareholder of the corporation and no
other rights against, or with respect to, the corporation, except the
right to receive shares of Class A Common Stock upon the conversion of
his, her or its shares of Class B Common Stock into shares of Class A
Common Stock. Notwithstanding the foregoing, if any Permitted Transferee
ceases to qualify as a Permitted Transferee at anytime following the
transfer of the Class B Common Stock, then each share of the Class B
Common Stock transferred to such Permitted Transferee shall automatically
convert, at the time that the transferee ceases to so qualify, into one
fully paid and non-assessable share of Class A Common Stock
Determinations as to the occurrence of events listed in this Article III,
Section 3.2 shall be made by a majority of the Board of Directors.
3.2.2. Notwithstanding anything to the contrary set forth in
Article III, Section 3.2.1, any Class B Shareholder may pledge his, her
or its shares of Class B Common Stock to a pledgee pursuant to a bona
fide pledge of such shares as collateral security for indebtedness due to
the pledgee, provided that such shares shall not be transferred to or
registered in the name of the pledgee and shall remain subject to the
provisions of this Article III, Section 3.2. In the event of foreclosure,
realization or other similar action by the pledgee, such pledged shares
of Class B Common Stock may only be transferred to a Permitted Transferee
of the pledgor or converted into shares of Class A Common Stock, as the
pledgee may elect.
3.2.3 The Corporation shall note on the certificates representing
shares of Class B Common Stock the restrictions on transfer and
registration of transfer imposed by this Article III, Section 3.2.
3.2.4 For the purpose of this Article III, the term "beneficial
owner(s)" of any shares of Class B Common Stock means a Person that has
or shares the power, either singly or jointly, to direct the voting or
disposition of such shares. A "Permitted Transferee" means (i) any Class
B Shareholder; (ii) the spouse of a Class B Shareholder; (iii) any parent
and any lineal descendant (including any adopted child) of any parent of
a Class B Shareholder or of a Class B Shareholder's spouse; (iv) any
trustee, guardian or custodian for, or any executor, administrator or
other legal representative of the estate of, any of the foregoing
Permitted Transferees; (v) the trustee of a trust (including a voting
trust) principally for the benefit of such Class B Shareholder
--------------------------------------------------------------------------------
PAGE 21
<PAGE> 22
and/or any of his or her Permitted Transferees, and (vi) any Subsidiary
of a Class B Shareholder. A "Subsidiary" of a Class B Shareholder or any
other Person means any corporation, partnership, limited liability
company, association, trust, unincorporated association or other legal
entity of which the Class B Shareholder or any such other Person, as the
case may be (either alone or through or together with any other
Subsidiary), (1) owns, directly or indirectly, 50% or more of the capital
stock or other or other equity interests that are generally entitled to
vote for the election of the board of directors or other governing body
of such corporation or other entity, or (2) has the contractual or other
power to designate a majority of the board of directors or other
governing body of such corporation or other entity. A "Transfer" means
any transfer, sale, assignment, gift, bequest, appointment or other
disposition.
3.3 If at any time the number of shares of Class B Common Stock
owned by Nextel Communications Group (as defined herein) in the aggregate
constitutes less than 30% of the aggregate number of shares of Common
Stock then issued and outstanding, and thereafter remains less than 30%
of the aggregate number of shares of Common Stock issued and outstanding
for a continuous period greater than 90 days from the most recent date on
which such ownership constituted less than such 30%, then each share of
Class B Common Stock then issued and outstanding shall thereupon be
converted automatically as of such date into one fully paid and
non-assessable share of Class A Common Stock. Upon the determination by a
majority of the Board of Directors that such automatic conversion has
occurred, notice of such automatic conversion shall be given by the
corporation as soon as practicable thereafter by means of written notice
to all holders of Class B Common Stock, and the Secretary of the
corporation shall be instructed to, and shall promptly, request from each
holder of Class B Common Stock that each such holder promptly deliver,
and each such holder shall promptly deliver, the certificate representing
each such share of Class B Common Stock to the corporation for exchange
hereunder, together with instruments of transfer, in form satisfactory to
the corporation and the Transfer Agent, duly executed by such holder or
such holder's duly authorized attorney, and together with transfer tax
stamps or funds therefor, if required pursuant to Article III, Section
3.7. "Nextel Communications Group" means and includes Nextel
Communications, Inc. ("NCI"), all Subsidiaries of NCI, any entity with
which NCI is merged or consolidated (notwithstanding whether NCI is the
surviving entity in such merger or
--------------------------------------------------------------------------------
PAGE 22
<PAGE> 23
consolidation), and any Person which acquires all or substantially all of
the assets of NCI.
3.4 As promptly as practicable following the surrender for
conversion of a certificate representing shares of Class B Common Stock
in the manner provided in Article III, Section 3.1, 3.2 or 3.3, and the
payment in cash of any amount required by the provisions of Article III,
Section 3.7, the corporation will deliver or cause to be delivered at the
office of the Transfer Agent, a certificate or certificates representing
the number of shares of Class A Common Stock issuable upon such
conversion, issued in such name or names as such holder may direct. Such
conversion shall be deemed to have been effected immediately prior to the
close of business on the date on which the event causing the conversion
occurs. Upon the date any such conversion is deemed made or effected, all
rights of the holder of such shares of Class B Common Stock as such
holder shall cease, and the person or persons in whose name or names the
certificate or certificates representing the shares of Class A Common
Stock are to be issued shall be treated for all purposes as having become
the record holder or holders of such shares of Class A Common Stock;
provided, however, that if any such surrender and payment occurs on any
date when the stock transfer books of the Corporation shall be closed,
the person or persons in whose name or names the certificate or
certificates representing shares of Class A Common Stock are to be issued
shall be deemed the record holder or holders thereof for all purposes
immediately prior to the close of business on the next succeeding day on
which the stock transfer books are open.
3.5 Upon any reclassification or other similar transaction that
results in the shares of Class A Common Stock being converted into or
exchanged for another security, holders of Class B Common Stock shall be
entitled to receive upon subsequent conversion or exchange of such Class
B Common Stock the amount of such other security that such holder would
have received if such conversion or exchange had occurred immediately
prior to the record date of such reclassification or other similar
transaction. No adjustments in respect of dividends shall be made upon
the conversion or exchange of any share of Class B Common Stock;
provided, however, that if a share of Class B Common Stock shall be
converted or exchanged subsequent to the record date for the payment of a
dividend or other distribution on shares of Class B Common Stock but
prior to such payment, then the registered holder of such share at the
close of business on such record date shall be entitled to receive
--------------------------------------------------------------------------------
PAGE 23
<PAGE> 24
the dividend or other distribution payable on such share on such date
notwithstanding the conversion or exchange thereof or the default in
payment of the dividend or distribution due on such date.
3.6 The corporation covenants that it shall at all times
reserve and keep available out of its authorized but unissued shares of
Class A Common Stock solely for the purpose of issuance upon conversion
of the outstanding shares of Class B Common Stock, such number of shares
of Class A Common Stock that shall be issuable upon the conversion of all
such outstanding shares of Class B Common Stock. The corporation
covenants that if any shares of Class A Common Stock require registration
with or approval of any Governmental Authority under any federal or state
law before such shares of Class A Common Stock may be issued upon
conversion of any Class B Common Stock, the corporation shall cause such
shares to be duly registered or approved, as the case may be. The
corporation shall use its reasonable best efforts to list or otherwise
qualify for trading the shares of Class A Common Stock required to be
delivered upon conversion or exchange prior to such delivery upon each
national securities exchange, automated quotation system or other market
upon which the outstanding Class A Common Stock is listed or qualified
for trading at the time of such delivery. The corporation covenants that
all shares of Class A Common Stock that shall be issued upon conversion
of the shares of Class B Common Stock will, upon issue, be validly
issued, fully paid and non-assessable. "Governmental Authority" means any
federal, state or local or any foreign government, governmental,
regulatory or administrative authority or commission or any court,
tribunal or agency.
3.7 The issuance of certificates for shares of Class A Common
Stock upon conversion of shares of Class B Common Stock shall be made
without charge to the holders of such shares for any stamp or other
similar tax in respect of such issuance; provided, however, that if any
such certificate is to be issued in a name other than that of the holder
of the share or shares of Class B Common Stock being converted, then the
Person or Persons requesting the issuance thereof shall pay to the
corporation the amount of any tax that may be payable in respect of any
transfer involved in such issuance or shall establish to the satisfaction
of the corporation that such tax has been paid or is not payable.
4. Effective upon filing of these Articles of Amendment with
the Secretary of State of Washington, each share of
--------------------------------------------------------------------------------
PAGE 24
<PAGE> 25
previously existing common stock, without par value, issued and
outstanding shall be and hereby is converted into and reclassified as one
share of Class B Common Stock, par value $0.001 per share Certificates
that prior to the filing of these Articles of Amendment with the
Secretary of State represented shares of common stock shall be and hereby
are canceled, and upon presentation of the canceled certificates to
Nextel International, Inc., the holders thereof shall be entitled to
receive certificate(s) representing the shares of Class B Common Stock
into which such canceled shares have been converted.
ARTICLE IV. NO PREEMPTIVE RIGHTS
Except as may otherwise be provided by the Board of Directors, no
preemptive rights shall exist with respect to shares of stock or
securities convertible into shares of stock of this corporation.
ARTICLE V. NO CUMULATIVE VOTING
At each election for directors, every shareholder entitled to vote at
such election has the right to vote in person or by proxy the number of
shares held by such shareholder for as many persons as there are
directors to be elected. No cumulative voting for directors shall be
permitted.
ARTICLE VI. BYLAWS
The Board of Directors shall have the power to adopt, amend or repeal the
Bylaws or adopt new Bylaws. Nothing herein shall deny the concurrent
power of the shareholders to adopt, alter, amend or repeal the Bylaws.
ARTICLE VII. REGISTERED AGENT AND OFFICE
The name of the registered agent of this corporation and the address of
its registered office are Lawco of Washington, Inc., 1201 Third Avenue,
40th Floor, Seattle, Washington 98101-3099.
ARTICLE VIII. DIRECTORS
The number of directors of this corporation shall be determined in the
manner specified by the Bylaws and may be increased or decreased from
time to time in the manner provided therein. At the time of the
restatement of these Articles of Incorporation, the following persons are
serving as the directors of this corporation are as follows:
<TABLE>
<S> <C>
Name Address
---- -------
</TABLE>
--------------------------------------------------------------------------------
PAGE 25
<PAGE> 26
<TABLE>
<S> <C>
Daniel F. Akerson 2001 Edmund Halley Drive
Reston, VA 20191
Timothy M. Donahue 2001 Edmund Halley Drive
Reston, VA 20191
Keith D. Grinstein 1191 Second Avenue, Suite 1600
Seattle, WA 98101
C. James Judson 2320 Carillon Point
Kirkland, WA 98033
Steven M. Shindler 2001 Edmund Halley Drive
Reston, VA 20191
Dennis M. Weibling 2320 Carillon Point
Kirkland, WA 98033
Steven P. Dussek 2001 Edmund Halley Drive
Reston, VA 20191
</TABLE>
ARTICLE IX. INCORPORATOR
The name and address of the incorporator is as follows:
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
C. James Judson 2600 Century Square
1501 4th Avenue
Seattle, WA 98101-1688
</TABLE>
ARTICLE X. LIMITATION OF DIRECTORS' LIABILITY
A director shall have no liability to the corporation or its shareholders
for monetary damages for conduct as a director, except for acts or
omissions that involve intentional misconduct or for conduct violating
RCW 23B.08.302, or for any transaction from which the director will
personally receive a benefit in money, property or services to which the
director is not legally entitled. If the Washington Business Corporation
Act is hereafter amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the
liability of a director shall be eliminated or limited to the full extent
permitted by the Washington Business Corporation Act, as so amended. Any
--------------------------------------------------------------------------------
PAGE 26
<PAGE> 27
repeal or modification of this Article shall not adversely affect any
right or protection of a director of the corporation existing at the time
of such repeal or modification occurring prior to such repeal or
modification.
ARTICLE XI. SHAREHOLDER ACTIONS
Any action required or permitted to be taken at a shareholders' meeting
may be taken without a meeting or a vote if either:
(i) the action is taken by all shareholders entitled to vote on
the action; or
(ii) So long as this corporation is not a public company, the
action is taken by shareholders holding of record, or otherwise entitled
to vote, in the aggregate not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote on the action were present and voted.
To the extent the Washington Business Corporation Act requires prior
notice of any such action to be given to nonconsenting or nonvoting
shareholders, such notice shall be given in advance of the date on which
the action becomes effective. Unless otherwise required by the Washington
Business Corporation Act in the case of action that would constitute a
significant business transaction or that would entitle shareholders to
exercise dissenters' rights, such notice shall be effective if given five
days in advance by United States mail, first class postage prepaid,
addressed to the shareholders at their addresses appearing on the records
of the corporation. The form of the notice shall be sufficient to apprise
the nonconsenting or nonvoting shareholder of the nature of the action to
be effected, in a manner approved by the Directors of this corporation or
by the committee or officers to whom the Board has delegated that
responsibility.
These Restated Articles of Incorporation are executed by said corporation
by its duly authorized officer.
DATED: October 23, 2000.
NEXTEL INTERNATIONAL, INC.
By /s/ Robert J. Gilker
-------------------------------
Robert J. Gilker
Vice President and General Counsel
--------------------------------------------------------------------------------
PAGE 27
