Registration No. ____________
SECURITIES AND EXCHANGE COMMISSION
Washington,D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NEXTEL COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3939651
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
201 Route 17 North
Rutherford, New Jersey 07070
(Address of principal executive offices including zip code)
NEXTEL COMMUNICATIONS, INC.
ASSOCIATE STOCK PURCHASE PLAN
(Full title of the plan)
THOMAS J. SIDMAN, Vice President and General Counsel
Nextel Communications, Inc.
201 Route 17 North
Rutherford, New Jersey 07070
(201) 438-1400
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered registered per share offering price fee
- -------------------------------------------------------------------------------
Class A Common
Stock, par value 5,000,000 $20.3125(2) $101,562,500.00(2) $35,021.55
$.001 per share shares (1)
================================================================================
(1) Such additional indeterminable number of shares of Class A Common Stock
is hereby registered as may be required by reason of the antidilution
provisions of the Nextel Communications, Inc. Associate Stock Purchase
Plan.
(2) In accordance with Rule 457(h) of the General Rules and Regulations under
the Securities Act of 1933, this estimate is made solely for the purpose
of calculating the amount of the registration fee and is based on the
average of the high and low prices of the Class A Common Stock on the
Nasdaq Stock Market on June 18, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference:
(a) The Annual Report of Nextel Communications, Inc. (the
"Registrant") on Form 10-K for the year ended December 31,
1995, as amended by Form 10-K/A filed with the Securities and
Exchange Commission (the "Commission") on April 1, 1996, and
Form 10-K/A2 filed with the Commission on May 17, 1996;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996;
(c) The Registrant's Current Reports on Form 8-K (i) dated
February 6, 1996, and filed with the Commission on February 7,
1996, as amended by Form 8-K/A filed with the Commission on
April 26, 1996, (ii) dated February 9, 1996, and filed with
the Commission on February 12, 1996, and (iii) dated March 13,
1996, and filed with the Commission on March 15, 1996;
(d) The description of the Registrant's Class A Common Stock, par
value $.001 per share, contained in the Registrant's
Registration Statement filed pursuant to Section 12 of the
Securities Exchange Act of 1934 (the "Exchange Act") and any
amendments and reports filed for the purpose of updating that
description; and
(e) All documents that shall be filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act subsequent to the filing of this Registration
Statement and prior to the filing of a post-effective
amendment indicating that all securities offered under the
Nextel Communications, Inc. Associate Stock Purchase Plan (the
"Plan") have been sold or deregistering all securities then
remaining unsold thereunder.
All documents incorporated by reference pursuant to subparagraph (e) of this
Item 3 shall be deemed to be a part hereof from the date of filing thereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Set forth below is a description of certain provisions of the
Registrant's Restated Certificate of Incorporation, as amended (the
"Certificate"), the Registrant's Amended and Restated By-laws (the "By-laws")
and the Delaware General Corporation Law (the "DGCL"). This description is
intended as a summary only and is qualified in its entirety by reference to the
Certificate, the By-laws and the DGCL.
ELIMINATION OF LIABILITY IN CERTAIN CIRCUMSTANCES
The Certificate provides that, to the fullest extent provided by
law, a director will not be personally liable for monetary damages to the
Registrant or its stockholders for or with respect to any acts or omissions in
the performance of his or her duties as a director. The DGCL provides that a
corporation may limit or eliminate a director's personal liability for monetary
damages to the corporation or its stockholders, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or involving intentional misconduct
or a knowing violation of law, (iii) for paying a dividend or approving a stock
repurchase in violation of Section 174 of the DGCL or (iv) for any transaction
from which the director derived an improper personal benefit.
While Article 7 of the Certificate provides directors with
protection from awards for monetary damages for breaches of the duty of care, it
does not eliminate the directors' duty of care. Accordingly, Article 7 will have
no effect on the availability of equitable remedies such as an injunction or
rescission based on a director's breach of the duty of care. The provisions of
Article 7 described above apply to officers of the Registrant only if they are
also directors of the Registrant and are acting in their capacity as directors
and do not apply to officers who are not also directors.
INDEMNIFICATION AND INSURANCE
Under the DGCL, directors and officers, as well as other employees
and individuals, may be indemnified against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement of specified civil,
criminal, administrative and investigative actions, suits or proceedings (other
than an action by or in the right of the corporation as a derivative action), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interest of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful.
Article 6 of the Certificate and Article VII of the By-laws provide
to directors and officers indemnification to the fullest extent provided by law,
thereby affording the directors and officers of the Company the protections
available to directors and officers of Delaware corporations. Article VII of the
By-laws also provides that expenses incurred by a person in defending a civil or
criminal action, suit or proceeding by reason of the fact that he or she is or
was a director or officer shall be paid in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it is ultimately determined
that he or she is not entitled to be indemnified by the Registrant, as
authorized by relevant Delaware law. The Registrant has obtained directors and
officers liability insurance providing coverage to its directors and officers.
On September 12, 1991, the Board of Directors of the Registrant
unanimously authorized the Registrant to enter into an indemnification agreement
(the "Indemnification Agreement") with each of its directors, and the Registrant
has since done so with respect to each director other than the two most recently
elected directors, Daniel F. Akerson and Timothy M. Donahue. One of the purposes
of the Indemnification Agreements is to attempt to specify the extent to which
persons entitled to indemnification thereunder (the "Indemnitees") may receive
indemnification under circumstances in which indemnity would not otherwise be
provided by the DGCL. Pursuant to the Indemnification Agreements, an Indemnitee
is entitled to indemnification as provided by Section 145 of the DGCL and to
indemnification for any amount that the Indemnitee is or becomes legally
obligated to pay relating to or arising out of any claim made against the
Indemnitee because of any act, failure to act or neglect or breach of duty,
including any actual or alleged error, misstatement or misleading statement,
that he or she commits, suffers, permits or acquiesces in while acting in his or
her position or positions with the Registrant. The Indemnification Agreements
are in addition to and are not intended to limit any rights of indemnification
that are available under the Certificate or the By-laws or any policy of
insurance or otherwise. The Registrant is not required under the Indemnification
Agreements to make payments in excess of those expressly provided for in the
DGCL in connection with any claim against the Indemnitee:
(i) that results in a final, nonappealable order directing the
Indemnitee to pay a fine or similar governmental imposition that the
Registrant is prohibited by applicable law from paying; or
(ii) based upon or attributable to the Indemnitee gaining a
personal profit to which he or she was not legally entitled,
including without limitation profits made from the purchase and sale
by the Indemnitee of equity securities of the Registrant that are
recoverable by the Registrant pursuant to Section 16(b) of the
Exchange Act and profits arising from transactions in
publicly-traded securities of the Registrant that were effected by
the Indemnitee in violation of Section 10(b) of the Exchange Act or
Rule 10b-5 promulgated thereunder.
In addition to the rights of indemnification specified therein, the
Indemnification Agreements are intended to increase the certainty of receipt by
the Indemnitee of the benefits to which he or she is entitled by providing
specific procedures relating to indemnification. The Indemnification Agreements
are also intended to provide increased assurance of indemnification by
prohibiting the Registrant from adopting any amendment to the Certificate or the
By-laws that would have the effect of denying, diminishing or encumbering the
Indemnitee's rights pursuant thereto or pursuant to the DGCL or any other law as
applied to any act, or failure to act, occurring in whole or in part prior to
the effective date of such amendment.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1.1 Restated Certificate of Incorporation of the Registrant (filed as
Exhibit 4.1.1 to Post-Effective Amendment No. 1 on Form S-8 to
Registration Statement No. 33-91716 on Form S-4 and
incorporated herein by reference)
4.1.2 Certificate of Merger Merging Nextel Communications, Inc. with and
into the Registrant (filed as Exhibit 4.1.2 to Post-Effective
Amendment No. 1 on Form S-8 to Registration Statement No.
33-91716 on Form S-4 and incorporated herein by reference)
4.2 Amended and Restated By-laws of the Registrant (filed as Exhibit 4.2
to Post-Effective Amendment No. 1 on Form S-8 to Registration
Statement No. 33-91716 on Form S-4 and incorporated herein by
reference)
4.3 Nextel Communications, Inc. Associate Stock Purchase Plan
5 Opinion of Schiff Hardin & Waite as to legality of shares to be
issued pursuant to the Plan
23.1 Consent of Schiff Hardin & Waite (included in Exhibit 5)
23.2 Consents of Deloitte & Touche LLP
23.3 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included at pages II-5 and II-6 of this
Registration Statement)
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which it offers or sales are being
made, a post-effective amendment to this Registration Statement: (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933 (the "Securities Act"); (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; (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; provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration
Statement is on Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(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 Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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 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
Securities 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 Securities
Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Rutherford, State of New Jersey, on this 18th
day of June 1996.
NEXTEL COMMUNICATIONS, INC.
By: THOMAS J. SIDMAN
Thomas J. Sidman
Vice President
and General Counsel
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Daniel F. Akerson, Timothy M. Donahue, Steven M. Shindler and Thomas J.
Sidman, and each of them, with full power to act without the other, such
person's true and lawful attorneys-in-fact, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement and any and all amendments
hereto (including post-effective amendments) and to file the same (with exhibits
and schedules thereto) and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorneys-in-fact, and
each of them, full power and authority to do and perform each and every act and
thing necessary or desirable to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, thereby ratifying
and confirming all that said attorneys-in-fact, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
DANIEL F. AKERSON Chairman of the Board June 18, 1996
Daniel F. Akerson of Directors and Chief
Executive Officer
(Principal Executive
Officer)
BRIAN D. MCAULEY Vice Chairman of the June 18, 1996
Brian D. McAuley Board of Directors
MORGAN E. O'BRIEN Vice Chairman of the June 18, 1996
Morgan E. O'Brien Board of Directors
TIMOTHY M. DONAHUE President and Chief June 18, 1996
Timothy M. Donahue Operating Officer and
Director
STEVEN M. SHINDLER Vice President and June 18, 1996
Steven M. Shindler Chief Financial Officer
(Principal Financial
Officer)
STEVEN BAILOR Controller (Principal June 18, 1996
Steven Bailor Accounting Officer)
KEITH BANE Director June 18, 1996
Keith Bane
ROBERT COOPER Director June 18, 1996
Robert Cooper
SCOT B. JARVIS Director June 18, 1996
Scot B. Jarvis
CRAIG O. MCCAW Director June 18, 1996
Craig O. McCaw
KEISUKE NAKASAKI Director June 18, 1996
Keisuke Nakasaki
MASAAKI TORIMOTO Director June 18, 1996
Masaaki Torimoto
Director
Dennis M. Weibling
<PAGE>
EXHIBIT INDEX
PAGE NUMBER IN
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED COPY
4.1.1 Restated Certificate of Incorporation
of the Registrant (filed as Exhibit
4.1.1 to Post-Effective Amendment No. 1
on Form S-8 to Registration Statement
No. 33-91716 on Form S-4 and
incorporated herein by reference)
4.1.2 Certificate of Merger Merging Nextel
Communications, Inc. with and into the
Registrant (filed as Exhibit 4.1.2 to
Post-Effective Amendment No. 1 on Form
S-8 to Registration Statement No.
33-91716 on Form S-4 and incorporated
herein by reference)
4.2 Amended and Restated By-laws of the
Registrant (filed as Exhibit 4.2 to
Post-Effective Amendment No. 1 on Form
S-8 to Registration Statement No.
33-91716 on Form S-4 and incorporated
herein by reference)
4.3 Nextel Communications, Inc. Associate
Stock Purchase Plan
5 Opinion of Schiff Hardin & Waite as to
legality of shares to be issued
pursuant to the Plan
23.1 Consent of Schiff Hardin & Waite
(included in Exhibit 5)
23.2 Consents of Deloitte & Touche LLP
23.3 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included at pages
II-5 and II-6 of this Registration Statement)
EXHIBIT 4.3
NEXTEL COMMUNICATIONS, INC.
ASSOCIATE STOCK PURCHASE PLAN
Section 1. PURPOSE
This Associate Stock Purchase Plan (this "Plan") is intended to advance
the interests of Nextel Communications, Inc. (the "Company") and its
stockholders by strengthening the Company's ability to attract and retain
employees who have the training, experience and ability to enhance the
profitability of the Company and to reward employees of the Company and its
subsidiaries upon whose judgment, initiative and effort the successful conduct
and development of their business largely depend. It is further intended that
options granted pursuant to this Plan shall constitute options granted pursuant
to an "employee stock purchase plan" within the meaning of Section 423 of the
Internal Revenue Code of 1986, as amended (the "Code").
Section 2. ADMINISTRATION
This Plan shall be administered by a committee (the "Committee") comprised
of two or more members of the Board of Directors. The members of the Committee
shall be appointed by, and shall serve at the pleasure of, the Board of
Directors, and each of the members of the Committee shall be a "disinterested
person" within the meaning of Rule 16b-3 under Section 16(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or any successor rule to
the same effect. A majority of the Committee shall constitute a quorum, and the
action of a majority of the members of the Committee present at any meeting at
which a quorum is present, or acts unanimously approved in writing, shall be the
acts of the Committee. The interpretation and construction by the Committee of
any provision of this Plan or any option granted hereunder shall be final. No
member of the Committee shall be liable for any action or determination made in
good faith with respect hereto or any option granted hereunder.
The Committee may establish any policies or procedures that in its
discretion are relevant to the operation and administration of this Plan and may
adopt rules for the administration of this Plan. The Committee may also engage
the services of a professional plan administrator on such terms and conditions
as the Committee deems appropriate for the purposes of establishing custodial
accounts and holding shares of Common Stock acquired by employees upon the
exercise of options granted under this Plan and otherwise operating this Plan.
Section 3. ELIGIBILITY
All full-time employees of the Company or of any subsidiary of the Company
shall be offered options under this Plan to purchase shares of the Company's
Class A Common Stock, par value $.001 per share ("Common Stock"), except that no
employee shall be granted an option under this Plan if, immediately after the
option was granted, the employee would own stock possessing five percent or more
of the total combined voting power or value of all classes of stock of the
Company or of any subsidiary of the Company. For the purposes of the foregoing,
stock ownership of an individual shall be determined under the rules of Section
425(d) of the Code, and stock that an employee may purchase under outstanding
options shall be treated as owned by the employee. For the purposes of this
Plan, "full-time employee" shall mean an employee whose customary employment is
more than 20 hours per week, and "subsidiary" shall mean any corporation that
the Company controls directly or indirectly through one or more intermediaries,
by ownership or 50 percent or more of the corporation's outstanding voting
securities.
Section 4. STOCK
The stock covered by options granted under this Plan shall be shares of
authorized but unissued or reacquired Common Stock. The aggregate number of
shares of Common Stock that may be purchased under this Plan shall not exceed
5,000,000. In the event that the number of shares covered by options to be
granted pursuant to any offering under this Plan exceeds the number of shares
available to be purchased hereunder, the shares available to be purchased shall
be allocated on a pro rata basis among the options to be granted. Shares of
Common Stock covered by options that are granted under this Plan and are
cancelled prior to exercise shall again be available for future grants under
this Plan.
Section 5. TERMS AND CONDITIONS OF OPTIONS
Options granted pursuant to this Plan shall be evidenced by agreements in
such form as the Committee shall from time to time approve, provided that all
employees granted options hereunder shall have the same rights and privileges,
except as otherwise provided in subparagraphs (a) and (e) of this Section 5, and
provided further that such options shall comply with and be subject to the
following terms and conditions:
(a) Number of Shares. An option granted hereunder shall pertain to such
number of shares of Common Stock as shall be determined by dividing (i) the
aggregate amount of payroll deductions on behalf of the optionee during the term
of the option or, if permitted by the Committee pursuant to subparagraph (c) of
this Section 5, the aggregate amount of any lump-sum payment by the optionee to
the Company on or before the date of exercise by (ii) the "option price" (as
defined in subparagraph (b) of this Section 5). An employee may authorize annual
payroll deductions of, or (if permitted by the Committee pursuant subparagraph
(c) of this Section 5) may make lump-sum payments to the Company in an aggregate
annual amount equivalent to, not less than one percent and not more than ten
percent of his or her basic compensation. If the number of shares computed in
accordance with the foregoing includes a fraction, it will be rounded down to
the next whole number. Notwithstanding the foregoing, prior to any offering
pursuant to this Plan, the Committee may set a maximum aggregate number of
shares, subject to the aggregate Plan limitation set forth Section 4 hereof,
that may be purchased upon the exercise of options granted pursuant to the
offering. In the event that employees elect to be granted options to purchase
shares in excess of such maximum offering limitation, the number of shares
purchased by optionees upon the exercise of such options shall be reduced on a
pro rata basis. For the purposes of this Plan, "basic compensation" shall mean
annual base salary and, if applicable, commissions paid pursuant to any ongoing
sales incentive compensation program, excluding cash bonuses and all forms of
noncash compensation.
(b) Option Price. The option price per share payable upon the exercise of
an option granted under to this Plan shall be an amount equal to 85 percent of
the lesser of (i) the fair market value of a share of Common Stock on the date
on which the option is granted or (ii) the fair market value of a share of
Common Stock on the date on which the option is exercised. For the purposes of
this Plan, "fair market value" shall mean the closing price of the Common Stock
on the NASDAQ National Market System on the last trading date preceding the date
of grant or the date of exercise, as the case may be.
(c) Medium and Time of Payment of Option Price. The option price shall be
payable in full on the date of exercise pursuant to uniform policies and
procedures established by the Committee. The funds required for such payment
shall be derived by regular withholding from an optionee's basic compensation in
approximately equal installments over the term of the option or, at the
discretion of the Committee, by a lump-sum payment by the optionee to the
Company on or before the date of exercise. Any funds withheld from an optionee's
compensation in excess of the actual option price shall be refunded to the
optionee. No interest shall accrue on the optionee funds held by the Company
during the term of the option. An optionee shall have the right at any time to
terminate such withholding, or to increase or decrease the amount thereof
(subject to the limitations set forth in subparagraph (a) of this Section 5), by
delivering written notice thereof to the Company within such period of time
prior to the next payroll withholding date as the Committee may specify in any
grant of options under this Plan. An optionee shall have the right to cancel his
or her option in whole or in part, and to obtain a refund of amounts withheld
from his or her compensation, by delivering written notice thereof to the
Company within such period of time prior to the date of exercise as the
Committee may specify in any grant of options under this Plan. Such amounts
shall thereafter be paid to the optionee within a reasonable period of time. No
interest shall accrue on such amounts. Any written notice provided for in this
subparagraph (c) shall be addressed to such officer, employee, department or
agent of the Company as the Committee may specify in any grant of options under
this Plan and shall not be deemed to have been delivered until received by such
officer, employee, department or agent.
(d) Exercise and Term of Options. The date of exercise on which the shares
of Common Stock covered by an option are to be purchased by the optionee shall
be the last day of the term of the option, except as otherwise provided in this
Plan. The Committee shall establish the term of each option granted hereunder,
which shall not be more than one year or less than three months from the date of
grant; provided, however, that all options granted to employees pursuant to any
offering hereunder must be for the same term. Except to the extent that an
option has been cancelled by the optionee prior to the date of exercise in
accordance with subparagraph (c) of this Section 5, it shall be deemed
automatically exercised on the date of exercise to the extent of payments
received from the optionee in accordance with subparagraph (c) of this Section
5.
(e) Accrual Limitation. No option shall permit the rights of an optionee
to purchase stock under all "employee stock purchase plans" (as defined in
Section 423 of the Code) of the Company and its subsidiaries to accrue at a rate
that exceeds $25,000 of fair market value of such stock (determined at the time
the option is granted) for each calendar year in which the option is outstanding
at any time. For the purposes of this subparagraph (e) and subparagraphs (f) -
(i) of this Section 5: (i) the right to purchase stock under an option accrues
when the option (or any portion thereof) first becomes exercisable during the
calendar year (ii) the right to purchase stock under an option accrues at the
rate provided in the option, but in no case may such rate exceed $25,000 of fair
market value of such stock (determined at the time the option is granted) for
any one calendar year; and (iii) a right to purchase stock that has accrued
under an option granted pursuant to this Plan may not be carried over to any
other option.
(f) Termination of Employment. In the event that an optionee shall cease
to be employed by the Company or any subsidiary of the Company for any reason
(including, without limitation, death or disability) before the date of
exercise, his or her option shall terminate immediately upon cessation of his or
her employment, and any amounts withheld from the optionee's compensation for
purposes of this Plan shall be refunded. No interest shall accrue on such
amounts.
(g) Transfer of Options. No option granted under this Plan may be sold,
assigned, hypothecated, pledged or otherwise transferred by operation of law or
otherwise by an optionee, and no option granted under this Plan shall be subject
to attachment or similar process.
(h) Adjustments. The Committee may make or provide for such adjustments in
the option price and in the number or kind of shares of Common Stock or other
securities covered by outstanding options as the Committee may determine to be
equitably required in order to prevent dilution or expansion of the rights of
optionees that would otherwise result from (i) any stock dividend, stock split,
combination of shares, recapitalization or other change in the capital structure
of the Company, (ii) any merger, consolidation, separation, reorganization,
partial or complete liquidation, issuance of rights or warrants to purchase
stock or (iii) any other corporate transaction or event having an effect similar
to any of the foregoing. The Committee may also make or provide for such
adjustments in the number or kind of shares of Common Stock or other securities
that may be sold under this Plan as the Committee may determine is appropriate
to reflect any transaction or event described in clause (i) of the preceding
sentence.
(i) Rights as a Stockholder. An optionee shall have no rights as a
stockholder with respect to any Common Stock covered by his or her option until
the date of exercise following payment in full. No adjustment shall be made for
dividends or distributions of any kind or other rights for which the record date
is prior to the date of exercise, except as provided in subparagraph (h) of this
Section 5.
(j) Nondistribution Purpose. Unless the shares of Common Stock covered by
options granted under this Plan are registered under the Securities Act of 1933,
as amended (the "Securities Act"), each option granted hereunder shall be
granted on the condition that the purchases of shares of Common Stock hereunder
shall not be with a view to resale or distribution or any participation therein.
Resales of such shares without registration under the Securities Act may not be
made unless, in the opinion of counsel for the Company, such resale is
permissible under the Securities Act and any other applicable laws or applicable
rules or regulations of any governmental agency.
(k) Other Provisions. The option agreements authorized under this Plan may
contain such other provisions as the Committee may deem advisable, including but
not limited to a holding period of such duration as the Committee may deem
appropriate before shares of Common Stock purchased upon exercise of options
granted under this Plan may be resold or otherwise disposed of by the employee
and such penalty as the Committee may deem appropriate for failure to satisfy
any such holding period, provided that no such provision may in any way be in
conflict with the terms of this Plan or Section 423 of the Code.
Section 6. TERM OF PLAN
Options may be granted under this Plan for a period of 10 years from the
date on which this Plan is adopted by the Board of Directors.
Section 7. AMENDMENT OF PLAN
This Plan may be amended from time to time by the Board of Directors, but
without further approval of the stockholders, no such amendment shall increase
the aggregate number of shares of Common Stock that may be issued and sold
hereunder (except as provided in the last sentence of subparagraph (h) of
Section 5 hereof) or change the designations in Section 3 hereof of the class of
employees eligible to be granted options hereunder. Furthermore, without further
approval of the stockholders, this Plan may not be amended in any manner that
would cause options granted hereunder to fail to meet the requirements
applicable to "employee stock purchase plans" as defined in Section 423 of the
Code or cause Rule 16b-3 under Section 16(b) of the Exchange Act (or any
successor rule to the same effect) to cease to be applicable to this Plan.
Section 8. APPLICATION OF FUNDS
The proceeds received by the Company from the sale of Common Stock
pursuant to options granted under this Plan shall be used for general corporate
purposes.
Section 9. APPROVAL OF STOCKHOLDERS
This Plan shall not take effect until approved by the affirmative vote of
a majority of the shares of Common Stock represented in person or by proxy at a
meeting of the holders of Common Stock at which a quorum is present. Such
approval must be obtained within 12 months after the on which this Plan is
adopted by the Board of Directors.
SCHIFF HARDIN & WAITE EXHIBIT 5
A Partnership Including Professional Corporations
7200 Sears Tower, Chicago, Illinois 60606-6473
Telephone (312) 876-1000
W. Brinkley Dickerson, Jr.
(312) 258-5633
June 19, 1996
Nextel Communications, Inc.
201 Route 17 North
Rutherford, New Jersey 07070
RE: REGISTRATION STATEMENT ON FORM S-8 COVERING SHARES
ISSUABLE UNDER ASSOCIATE STOCK PURCHASE PLAN
Ladies and Gentlemen:
We have acted as special counsel to Nextel Communications, Inc., a
Delaware corporation (the "Company"), in connection with the Company's filing of
a Registration Statement on Form S-8 (the "Registration Statement"), covering an
aggregate of 5,000,000 authorized but unissued shares of the Company's Class A
Common Stock, par value $.001 per share ("Class A Common Shares"), that are
issuable pursuant to the Nextel Communications, Inc. Associate Stock Purchase
Plan (the "Plan").
We have made such investigation and have examined such documents,
records and matters of law as we have deemed necessary for the purposes of this
opinion, and based thereon, we are of the opinion that the Class A Common Shares
that may be issued under the Plan are duly authorized and will be validly
issued, fully paid and nonassessable when issued in accordance with the Plan,
provided that the consideration received is at least equal to the par value of
the Class A Common Shares.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
SCHIFF HARDIN & WAITE
By W. BRINKLEY DICKERSON, JR.
--------------------------
W. Brinkley Dickerson, Jr.
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Nextel Communications, Inc., on Form S-8, of our report dated March 25, 1996,
appearing in the Form 10-K of Nextel Communications, Inc. for the year ended
December 31, 1995, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
June 14, 1996
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Nextel Communications, Inc., on Form S-8, of our report dated March 20, 1996,
relating to the consolidated financial statements of Dial Page, Inc., which is
part of this Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
June 14, 1996
Exhibit 23.3
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Dial Page, Inc.:
We consent to the incorporation by reference in this registration statement on
Form S-8 of Nextel Communications, Inc. Association Stock Purchase Plan of our
report dated February 17, 1995, with respect to the consolidated balance sheets
of Dial Page, Inc. and subsidiaries as of December 31, 1993 and 1994, and the
related consolidated statements of operations, stockholders'/partners' equity
(deficit) and cash flows for each of the years in the three-year period ended
December 31, 1994, which report appears in the Form 8-K of Nextel
Communications, Inc. dated February 6, 1996 and filed on February 7, 1996, as
amended by Form 8-K/A filed on April 26, 1996.
KPMG PEAT MARWICK LLP
Greenville, South Carolina KPMG Peat Marwick LLP
June 14, 1996
