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As filed with the Securities and Exchange Commission on December 17, 1997
Registration No. 333-
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
Incorporation or Organization)
(I.R.S. Employer
Identification Number)
1505 Farm Credit Drive, McLean, Virginia
22102
(Address of Principal Executive Offices)
(Zip Code)
Nextel Communications, Inc. Cash Compensation Deferral Plan
(Full title of plan)
Thomas J. Sidman, Esq.
Vice President and General Counsel
Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
(Name and address of agent for service)
(703) 394-3000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount Maximum Offering Maximum Amount of
Title of Securities to be Price Aggregate Registration
to be Registered Registered(1) Per Share(2) Offering Price(2) Fee
Deferred Compensation $10,000,000 n/a $10,000,000 $2,950
Obligations
(1) The Deferred Compensation Obligations represent unsecured obligations
of the Registrant to pay deferred compensation in the future in accordance with
the provisions of Nextel Communication Inc.'s Cash Compensation Deferral Plan.
The amount to be registered represents the dollar amount of the compensation
deferred and deemed invested in accordance with the Nextel Communications, Inc.
Cash Compensation Deferral Plan.
(2) In accordance with Rule 457(h) of the Securities Act of 1933, as
amended (the "Securities Act"), this estimate is made solely for purposes of
computing the amount of the registration fee.
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PART I
INFORMATION REQUIRED IN THE SECTION 10 (a) PROSPECTUS
The document(s) containing the information specified in this Part I will be
sent or given to employees as specified by Rule 428(b)(1) under the Securities
Act of 1933, as amended (the "Securities Act"). These documents and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION NOT REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by Nextel Communications, Inc.
(the "Company" or "Nextel") with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
(i) Annual Report on Form 10-K for the fiscal year ended December 31, 1996,
filed with the Commission on March 31, 1997;
(ii) Quarterly Reports on Form 10-Q for the quarters ended (a) March 31,
1997 dated and filed with the Commission on May 15, 1997, (b) June 30, 1997
dated and filed with the Commission on August 12, 1997 and (c) September 30,
1997 dated and filed with the Commission on November 14, 1997;
(iii) Current Reports on Form 8-K: (a) dated and filed with the Commission
on January 21, 1997, (b) dated and filed with the Commission on February 7,
1997, (c) dated and filed with the Commission on March 18, 1997, (d) dated and
filed with the Commission on April 15, 1997, (e) dated June 2, 1997 and filed
with the Commission on June 3, 1997, (f) dated and filed with the Commission on
June 17, 1997, (g) dated and filed with the Commission on July 9, 1997, (h)
dated and filed with the Commission on July 16, 1997, (i) dated July 21, 1997
and filed with the Commission on July 22, 1997, (j) dated and filed with the
Commission on September 5, 1997, (k) dated and filed with the Commission on
September 9, 1997, (l) dated and filed with the Commission on September 22, 1997
and (m) dated and filed with the Commission on October 23, 1997; and
(iv) Proxy Statement, dated as of April 18, 1997, filed in definitive form
on April 21, 1997 with the Commission with respect to the information required
to be included herein by Items 401 (management), 402 (executive compensation)
and 404 (certain relationships and related transactions) of Regulation S-K
promulgated under the Securities Act and the Exchange Act.
All documents filed by Nextel 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 Company's Cash Compensation Deferral Plan (the
"Plan") have been sold or deregistering all securities then remaining unsold
thereunder shall be deemed to be incorporated herein by reference and shall be
deemed to be a part hereof from the date of filing thereof.
Item 4. Description of Securities.
The securities being registered represent unsecured obligations (the
"Obligations") of the Company to pay to Eligible Employees and Eligible
Directors (the "Participants") who participate in the Plan, upon their
retirement, death, disability, certain change of control events or upon one or
more future date(s) specified by such Participant's salary or bonus (together
with any gains, earnings or losses thereon), the receipt of which the
Participants have elected to defer. The Obligations also may represent amounts
that the Company has elected to contribute to a Participant's account(s) under
the Plan. Amounts deferred or contributed to a Participant's account(s) are
credited with gains, losses and earnings based on hypothetical investment
directions made by the Participant, in accordance with investment deferral
crediting options and procedures adopted from time to time pursuant to the Plan.
Any amounts deferred or contributed to a Participant's account with respect to
which a Participant does not provide investment direction shall be credited with
earnings in an amount determined by the
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Committee (as hereinafter defined) in its sole discretion or, if an amount
is not so determined, such amounts shall bear interest at the rate applicable to
U.S. Treasury Bills having a maturity of thirty (30) days as in effect from time
to time during the relevant period.
The Plan is administered by the Compensation Committee of the Board of
Directors of the Company (the "Compensation Committee"), which is granted
authority to delegate administration of the Plan to one or more groups,
committees, individuals or entities (the Compensation Committee, together with
any such delegated parties, the "Committee").
Before the first day of each calendar year (or within 31 days of the
commencement of service for an Eligible Employee or Eligible Director, as the
case may be, whose eligibility to participate in the Plan commences other than
on the first day of a calendar year), or on or before such other date(s) by that
the Committee may, in its sole discretion, establish or designate for such
purpose, a Participant may file with the Committee a deferred compensation
agreement pursuant to which such Participant elects to make deferrals of base
salary and/or bonus compensation for or with respect to such year, provided that
elections to defer bonus compensation payable in 1998 may be made on or prior to
December 31, 1997. Any such Participant election shall be subject to any maximum
or minimum percentage or dollar amount limitations (which, as of the effective
date of the Plan, shall include a maximum base salary deferral limit of 90% of a
Participant's base salary and a minimum deferral limitation of $1,000 per year,
which limitation may be changed by the Committee in its sole discretion), and to
any other rules prescribed by the Committee in its sole discretion.
Any distribution to a Participant of base salary deferrals, bonus
compensation deferrals and Company contributions (together with any gains,
earnings or losses thereon) shall be made as soon as practicable following the
date the deferral period for such amounts ends and may be made in a lump-sum or
in annual or quarterly installments as directed by the Participant. The Plan
provides for lump-sum distributions of deferrals (i) if a Participant ceases to
be an employee (unless the Committee, in its sole discretion, elects to defer
such distribution and/or make such distribution in installments as permitted by
the Plan),(ii) at the election of the Participant upon the occurrence of certain
events that constitute a Change in Control, or upon the disability or death of
the Participant subject, in certain of such cases, to the right of the
Participant or the Participant's beneficiary to elect or request a different
distribution schedule as permitted by the Plan. The Plan also permits
Participant's to request certain hardship and other withdrawals subject to
specified limitations and to specified forfeiture and non-participation
requirements contained in the Plan.
The Obligations are unsecured general obligations of the Company. The
Obligations are not subject to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment or garnishment. Any attempt by any
person to transfer or assign benefits under the Plan, other than a claim for
benefits by a Participant or his or her beneficiary(ies) will be null and void.
There is no trading market for the Obligations.
The Obligations are not convertible to any security of the Company. No
trustee has been created or appointed to take action with respect to the
Obligations and each Participant in the Plan will be responsible for enforcing
his or her own rights with respect to the Obligations. The Company may (but
shall not be obligated to) establish a trust or trusts, or such other funding
devices as the Committee shall deem appropriate, advisable or desirable, which
may take the form of grantor trusts, may be revocable or irrevocable, and may
have independent trustees (such trusts or other funding devices collectively
"Trusts"). Neither Participants, their Beneficiaries nor their legal
representatives shall have any right, actual or beneficial, other than the right
of an unsecured general creditor, against the Company or against any of such
Trusts in respect of any portion of a Participant's account. The Company has no
obligation to make or to continue to make any contributions to any Trusts that
may be established in connection with the Plan and any such contributions, if
made, shall be made (and may be discontinued) in the sole discretion of the
Company. By electing to defer any amount pursuant to the Plan, each Participant
acknowledges and agrees that the Company is not and shall not be required to
make any investment in connection with the Plan, nor is it required to follow
the Participant's hypothetical investment directions in any actual investment
the Company may make or acquire in connection with the Plan or in determining
the amount of any actual or contingent liability or obligation of the Company
thereunder or relating thereto.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Set forth below is a description of certain provisions of the Restated
Certificate of Incorporation of Nextel (the "Nextel Charter"), the Amended and
Restated By-laws of Nextel (the "Nextel 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 Nextel Charter, the Nextel
By-laws and the DGCL.
Elimination of Liability in Certain Circumstances. The Nextel Charter
provides that, to the full extent provided by law, a director will not be
personally liable to Nextel 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 such
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve 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 Nextel Charter 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 as described above apply to officers of Nextel only if they are
directors of Nextel and are acting in their capacity as directors, and does not
apply to officers of Nextel who are not 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 in
connection with specified actions, suits or proceedings, whether civil,
criminal, administrative or investigative (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 Nextel Charter and Article VII of the Nextel By-laws
provide to directors and officers indemnification to the full extent provided by
law, thereby affording the directors and officers of Nextel the protections
available to directors and officers of Delaware corporations. Article VII of the
Nextel 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 shall
ultimately be determined that he or she is not entitled to be indemnified by
Nextel as authorized by relevant Delaware law. Nextel has obtained directors and
officers liability insurance providing coverage to its directors and officers.
On September 12, 1991, the Board of Directors of Nextel unanimously adopted
resolutions authorizing Nextel to enter into an Indemnification Agreement (the
"Indemnification Agreement") with each director of Nextel, and Nextel has
entered into an Indemnification Agreement with each director.
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 which
the Indemnitee is or becomes legally obligated to pay relating to or arising out
of any claim made against such person because of any act, failure to act or
neglect or breach of duty, including any actual or alleged error, misstatement
or misleading statement, which such person commits, suffers, permits or
acquiesces in while acting in the Indemnitee's position with Nextel. The
Indemnification Agreements are in addition to and are not intended to limit any
rights of indemnification which are available under the Nextel Charter or the
Nextel By-laws, any policy of insurance or otherwise. Nextel 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:
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(i) which results in a final, nonappealable order directing the Indemnitee
to pay a fine or similar governmental imposition which Nextel is prohibited by
applicable law from paying; or
(ii) based upon or attributable to the Indemnitee gaining in fact a
personal profit to which he was not legally entitled including, without
limitation, profits made from the purchase and sale by the Indemnitee of equity
securities of Nextel which are recoverable by Nextel pursuant to Section 16(b)
of the Exchange Act and profits arising from transactions in publicly traded
securities of Nextel which 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 to 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 also are intended to provide increased
assurance of indemnification by prohibiting Nextel from adopting any amendment
to the Nextel Charter or the Nextel By-laws which would have the effect of
denying, diminishing or encumbering the Indemnitee's rights pursuant thereto or
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.
Exhibit
Number Description of Exhibits
4.1 - Nextel Communications, Inc. Cash Compensation Deferral Plan.
5 - Opinion of Jones, Day, Reavis and Pogue.
23.1 - Consent of Jones, Day, Reavis and Pogue (included in Exhibit 5).
23.2 - Consent of Deloitte & Touche LLP.
24 - Powers of Attorney of Directors and certain Officers of Nextel
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which 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;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
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decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration Statement;
and
(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 (1) (i) and (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 with or furnished to the Commission 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 undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities and Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act of 1934) that is incorporated by reference in the 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Nextel
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 McLean, the Commonwealth State of Virginia, on the
17th day of December, 1997.
NEXTEL COMMUNICATIONS, INC.
By:/s/Thomas J. Sidman
__________________________________
Thomas J. Sidman
Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated and on the dates indicated:
Name Title Date
*
_____________________ Chairman of the Board, Chief
Daniel F. Akerson Executive Officer and Director
(Principal Executive Officer)
*
_____________________ Vice President and Chief Financial
Steven M. Shindler Officer (Principal Financial Officer)
*
_____________________ Vice President and Controller
William Arendt (Principal Accounting Officer)
*
_____________________ Vice Chairman of the Board and Director
Morgan E. O'Brien
*
_____________________ President, Chief Operating Officer and Director
Timothy M. Donahue
_____________________ Director
Keith J. Bane
_____________________ Director
Craig O. McCaw
*
______________________ Director
Keisuke Nakasaki
*
______________________ Director
Masaaki Torimoto
*
______________________ Director
Dennis M. Weibling
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*
______________________ Director
William E. Conway, Jr.
*
______________________ Director
Frank M. Drendel
/s/ Thomas J. Sidman Attorney-in-Fact December 17, 1997
______________________
Thomas J. Sidman*
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EXHIBITS
Exhibit
Number Description of Exhibits
4.1 - Nextel Communications, Inc. Cash Compensation Deferral Plan.
5 - Opinion of Jones, Day, Reavis and Pogue.
23.1 - Consent of Jones, Day, Reavis and Pogue (included in Exhibit 5).
23.2 - Consent of Deloitte & Touche LLP.
24 - Powers of Attorney of Directors and certain Officers of Nextel.
Exhibit 4.1
NEXTEL COMMUNICATIONS, INC.
CASH COMPENSATION DEFERRAL PLAN
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TABLE OF CONTENTS
ARTICLE PAGE
ARTICLE I
INTRODUCTION 1
1.1 Name of Plan 1
1.2 Purposes of Plan 1
1.3 "Top Hat" Pension Benefit Plan 1
1.4 Funding 1
1.5 Effective Date 1
1.6 Administration 1
ARTICLE II
DEFINITIONS AND CONSTRUCTION 2
2.1 Definitions 2
2.2 Number and Gender 7
2.3 Headings 8
ARTICLE III
PARTICIPATION AND ELIGIBILITY 8
3.1 Participation 8
3.2 Commencement of Participation 8
3.3 Cessation of Active Participation 8
ARTICLE IV
DEFERRALS AND COMPANY CONTRIBUTIONS 9
4.1 Deferrals by Participants 9
4.2 Effective Date of Deferred Compensation Agreemen 10
4.3 Modification or Revocation of Election by Partipant 10
4.4 Company Contributions 10
ARTICLE V
VESTING, DEFERRAL PERIODS AND EARNINGS ELECTION 11
5.1 Vesting 11
5.2 Deferral Periods 11
5.3 Earnings Election 12
ARTICLE VI
ACCOUNTS 12
6.1 Establishment of Bookkeeping Accounts 12
6.2 Subaccounts 12
6.3 Hypothetical Nature of Accounts 13
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TABLE OF CONTENTS
ARTICLE VII
PAYMENT OF ACCOUNT 13
7.1 Timing of Distribution of Benefits 13
7.2 Adjustment for Investment Gains and Losses
Upon a Distribution 14
7.3 Form of Payment or Payments 14
7.4 Small Accounts 15
7.5 Designation of Beneficiaries 15
7.6 Unclaimed Benefits 15
7.7 Hardship Withdrawals 15
7.8 Other Withdrawals 16
ARTICLE VIII
ADMINISTRATION 16
8.1 Committee 16
8.2 General Powers of Administration 17
8.3 Costs of Administration 17
8.4 Indemnification of Committee 17
ARTICLE IX
DETERMINATION OF BENEFITS, CLAIMS
PROCEDURE AND ADMINISTRATION 17
9.1 Claims 17
9.2 Claim Decision 17
9.3 Request for Review 18
9.4 Review of Decision 18
ARTICLE X
MISCELLANEOUS 19
10.1 Not Contract of Employment 19
10.2 Non-Assignability of Benefits 19
10.3 Withholding 19
10.4 Amendment and Termination 20
10.5 No Trust Created 20
10.6 Unsecured General Creditor Status of Employee 20
10.7 Severability 21
10.8 Governing Laws 22
10.9 Binding Effect 22
10.10 Entire Agreement 22
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ARTICLE I - INTRODUCTION
1.1 Name of Plan.
Nextel Communications, Inc. ("Nextel" or the "Company") hereby establishes,
as of December 15, 1997, the Nextel Communications, Inc. Cash Compensation
Deferral Plan (the "Plan").
1.2 Purposes of Plan.
The purposes of the Plan are to provide certain eligible employees and
directors of the Company and its Subsidiaries (as defined herein) the
opportunity to defer elements of their cash compensation which might not
otherwise be deferrable under other Company plans.
1.3 "Top Hat" Pension Benefit Plan.
The Plan is an "employee pension benefit plan" within the meaning of ERISA.
However, the Plan is unfunded and maintained for a select group of management or
highly compensated employees and certain select directors of the Company and its
Subsidiaries and, therefore, it is intended that the Plan will be exempt from
Parts 2, 3 and 4 of Title 1 of ERISA. The Plan is not intended to qualify under
Code section 401(a).
1.4 Funding.
The Plan is unfunded. All benefits will be paid from the general assets of
the Company.
1.5 Effective Date.
The Plan is effective as of December 15, 1997, but no cash compensation of
any Participant (as defined herein) may be deferred pursuant to this Plan prior
to January 1, 1998.
1.6 Administration.
The Plan shall be administered by the Compensation Committee (as defined
herein), subject to the express understanding that the Compensation Committee
may in turn, pursuant to general rules or procedures adopted by the Compensation
Committee or as to actions by the Compensation Committee directed at particular
or limited circumstances, delegate administration and administrative functions
of or relating to the Plan in such manner and to such groups, committees,
individuals or entities as the Compensation Committee deems appropriate.
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ARTICLE II - DEFINITIONS AND CONSTRUCTION
2.1 Definitions.
For purposes of the Plan, the following words and phrases shall have the
respective meanings set forth below, unless their context clearly requires a
different meaning:
(a) "Account" means the bookkeeping account maintained by the Company on
behalf of each Participant pursuant to Article VI that is credited with Base
Salary Deferrals, Bonus Deferrals, and Company Contributions made on behalf of
each Participant pursuant to Article IV, and the gains, losses and earnings on
such amounts as determined in accordance with Article V. As of any Valuation
Date, a Participant's benefit under the Plan shall be equal to the amount
credited to his Account as of such date.
(b) "Base Salary" means the base rate of cash compensation (which, in the
case of Participants who are Eligible Directors (as defined herein), shall
include annual directors' fees or other similar amounts paid or payable in cash)
paid by the Company and/or by any Subsidiary to or for the benefit of a
Participant for services rendered or labor performed while a Participant,
including base pay a Participant could have received in cash in lieu of (A)
deferrals pursuant to Section 4.1 and (B) contributions made on a Participant's
behalf to any qualified or non-qualified plan maintained by the Company and/or
by any Subsidiary.
(c) "Base Salary Deferral" means the amount of a Participant's Base Salary
which the Participant elects to have withheld on a pre-tax basis from his Base
Salary and credited to his Account pursuant to Section 4.1.
(d) "Beneficiary" means the person or persons designated by the Participant
in accordance with Section 7.5.
(e) "Bonus Compensation" means the amount in cash awarded to a Participant
under any bonus plan maintained by the Company and/or by any Subsidiary, to the
extent such amount awarded is paid or payable in cash.
(f) "Bonus Compensation Deferral" means the amount of a Participant's Bonus
Compensation which the Participant elects to have withheld on a pre-tax basis
from his Bonus Compensation and credited to his account pursuant to Section 4.1.
(g) "Change In Control" means the happening of any of the following events:
(i) An acquisition by an individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (a "Person") of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the
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Exchange Act) of 50% or more of either (1) the then outstanding shares of
common stock of the Company (the "Outstanding Company Common Stock") or (2) the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Outstanding
Company Voting Securities"); provided, however, that the following acquisitions
shall not constitute a Change In Control: (A) any acquisition directly from the
Company (excluding an acquisition by virtue of the exercise of a conversion
privilege), (B) any acquisition by the Company, (C) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any of its controlled affiliated companies or (D) any acquisition of the
Company by any corporation pursuant to a reorganization, merger, consolidation,
if, following such reorganization, merger or consolidation, the conditions
described in clauses (1), (2) and (3) of subsection (iii) of this Section 2.1(g)
are satisfied; or
(ii) Individuals who, as of the date hereof, constitute the Board (the
Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the date hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board; or
(iii) Approval by the shareholders of the Company of a reorganization,
merger or consolidation, in each case, unless, following such reorganization,
merger of consolidation, (1) all or substantially all of the individuals and
entities who were beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities immediately prior to such
reorganization, merger or consolidation beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock or the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such reorganization, merger or
consolidation (2) no Person (excluding the Company and any employee benefit plan
(or related trust) sponsored by the Company or any of its controlled affiliated
companies or by the
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corporation resulting from such reorganization, merger or consolidation)
who is a holder of voting common stock or other voting securities entitled to
vote generally in the election of directors of the Company or of the corporation
resulting from such reorganization, merger or consolidation shall, either alone
or as part of a "group" (as such term is used for purposes of Section 13(d)(3)
of the Exchange Act) beneficially own, directly or indirectly, 50% or more of,
respectively, the then outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation or the combined
voting power of the then outstanding voting securities of such corporation and
(3) at least a majority of the members of the board of directors of the
corporation resulting from such reorganization, merger or consolidation were
members of the Incumbent Board at the time of the execution of the initial
agreement providing for such reorganization, merger of consolidation;
(iv) The approval by the shareholders of the Company of (1) a complete
liquidation or dissolution of the Company or (2) the sale or other disposition
of all or substantially all of the assets of the Company; excluding, however,
such a sale or other disposition to a corporation, with respect to which
following such sale or other disposition, (A) more than 50% of, respectively,
the outstanding shares of common stock of such corporation and the combined
voting power of the outstanding voting securities of such corporation entitled
to vote generally in the election of directors will be beneficially owned,
directly or indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such sale or other disposition in substantially the same proportions as their
ownership, immediately prior to such sale or other disposition, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities, as
the case may be, (B) no Person (other than the Company and any employee benefit
plan (or related trust) sponsored by the Company or such corporation), or any
Person beneficially owning, immediately prior to such sale or other disposition,
20% or more of the Outstanding Company Common Stock or Outstanding Company
Voting Securities, as the case may be) then beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding shares of common
stock of such corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the election
of directors and (C) individuals who were members of the Incumbent Board will
constitute at least a majority of the members of the board of directors of such
corporation.
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(h) "Code" means the Internal Revenue Code of 1986, as amended.
(i) "Committee" means the Compensation Committee and also shall mean or
include, to the extent relevant, any group, committee, individual or entity that
the Compensation Committee may appoint or constitute from time to time, as
contemplated in Section 1.6, to administer the Plan in accordance with Article
VIII.
(j) "Company" means Nextel Communications, Inc. and any successor thereto
including, without limitation, the surviving corporation resulting from any
merger or consolidation of Nextel Communications, Inc. with any other
corporation or corporations.
(k) ACompany Contribution@ means a discretionary cash amount which may be
contributed to a Participant=s Account on a pre-tax basis under Section 4.1 for
such business purposes and objectives as the Company shall deem appropriate. The
Company shall not be obligated to make any Company Contribution to any
Participant or Participants, unless such obligation is evidenced in a writing
(separate from this Plan document) and signed by an authorized officer on behalf
of the Company. Subject to the foregoing, a Company Contribution may be made to
any eligible individual Participant or group of Participants based upon any set
of conditions or requirements as the Company shall deem appropriate.
(l) "Compensation Committee" means the Compensation Committee of the
Directors.
(m) "Deferral Period" means the period of time for which a Participant
elects to defer receipt of the Base Salary Deferral, Bonus Compensation
Deferral, and Company Contributions (if any) credited to such Participant's
Account and shall be either (a) the period ending on the Retirement Date, or (b)
the period of years ending immediately prior to the first day of a Specific
Future Year as specified in Section 5.2. Deferral Periods shall be measured on
the basis of Plan Years, beginning with the Plan Year that commences immediately
following the Plan Year for which the applicable Base Salary Deferrals, Bonus
Compensation Deferrals, and/or Company Contributions (if any) are credited to
the Participant's Account.
(n) "Deferred Compensation Agreement" means the written agreement
(regardless of how it may be titled) as prescribed by the Committee and signed
by a Participant pursuant to which the Participant elects the amount of his Base
Salary and/or his Bonus Compensation to be deferred into the Plan, and the form
of payment for such amounts, the Deferral Period and the deemed investment(s).
(o) "Directors" means the Board of Directors of the Company.
(p) "Effective Date" means December 15, 1997.
(q) "Eligible Director" shall mean each person serving as a director of the
Company who is a "NonAffiliated Director" (as such term is defined in the
Company's
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Incentive Equity Plan (as defined herein)), and also shall mean each person
serving as a director of any Subsidiary of the Company who meets the criteria
for a "Non-Affiliated Director" (as so defined ). Unless otherwise determined by
the Committee, an Eligible Director shall continue as such until the earlier of
(i) the date on which such person fails to meet the criteria for a
"Non-Affiliated Director" (as so defined) and (ii) the date on which such person
ceases to serve as a director of the Company and any of its Subsidiaries.
(r) "Eligible Employee" shall mean an Employee of the Company (or of a
Subsidiary) who is a resident of the United States, and occupies a position with
the Company or such Subsidiary that has a fixed annual base rate of cash
compensation of at least $100,000. Unless otherwise determined by the Committee,
an Eligible Employee shall continue as such so long as he meets the above
residency and base compensation rate criteria, but shall be entitled to defer
Base Salary and Bonus Compensation otherwise payable to him only, until
termination of employment with the Company and any of its Subsidiaries.
(s) "Employee" means any common-law employee of the Company or of any of
its Subsidiaries.
(t) "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
(u) "Incentive Equity Plan" shall mean the Company's Amended and Restated
Incentive Equity Plan, as amended and in effect from time to time.
(v) "Insolvent" shall mean that the Company has become subject to a pending
voluntary or involuntary proceeding under the United States Bankruptcy Code
(and, if such proceeding is involuntary and is contested by the Company, such
proceeding has not been dismissed within 90 days of the filing thereof) or has
become unable to pay its debts as they mature.
(w) "Participant" means (a) each Employee who is an Eligible Employee and
(b) each Eligible Director, (and in either case only if such Eligible Employee
or Eligible Director, as the case may be, has been selected by the Committee for
participation in the Plan) who has become and remains a Participant in the Plan
pursuant to Article III.
(x) "Plan" means the Nextel Communications, Inc. Cash Compensation
Deferral Plan as amended and in effect from time to time.
(y) "Plan Year" means the twelve-consecutive month period commencing
January 1 and ending December 31 of each year.
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(z) "Public Note Indenture" means that certain Indenture dated as of
October 22,1997 between the Company and Harris Trust and Savings Bank, as
Trustee, as amended and in effect from time to time.
(aa) "Retirement Age" means, in the case of any Eligible Director, the
latest to occur of (a) his sixty-fifth birthday, (b) the date on which he ceases
to be an Eligible Director or (c) such other date as is specified by the
Eligible Director as his Retirement Age in the relevant Deferred Compensation
Agreement(s).
(bb) "Retirement Date" means the date the Participant is eligible for and
retires under any qualified retirement plan maintained by the Company or, in the
case of any Eligible Director, such Participant's Retirement Age.
(cc) ASpecific Future Year@ means a calendar year in the future voluntarily
elected by a Participant to begin distribution of Base Salary Deferrals, Bonus
Compensation Deferrals, and Company Contributions (if any), limited only by the
minimum and maximum Deferral Periods.
(dd) "Specified Alternatives" shall mean each of the hypothetical
investment vehicles authorized and approved from time to time by the Committee
to which Base Salary Deferrals and/or Bonus Compensation Deferrals and/or
Company Contributions (if any) credited to a Participant's Account or deferred
by a Participant may be allocated pursuant to an effective Deferred Compensation
Agreement submitted by such Participant. On the Effective Date of this Plan, the
Specified Alternatives are those identified and described in summary form on
Exhibit A attached hereto.
(ee) "Subsidiary" shall mean any corporation, joint venture, partnership,
unincorporated association or other entity (i) in which the Company has a direct
or indirect ownership or other equity interest and directly or indirectly owns
or controls more than 50 percent of the total combined voting or other
decision-making power and (ii) is a "Restricted Subsidiary" (as such term is
defined in the Public Note Indenture), unless, in either or both such cases, the
Compensation Committee or the Directors determine, in their sole and absolute
discretion, to waive such criteria.
(ff) "Valuation Date" means each business day of each calendar month.
2.2 Number and Gender.
Wherever appropriate herein, words used in the singular shall be considered
to include the plural and words used in the plural shall be considered to
include the singular. The masculine gender, where appearing in the Plan, shall
be deemed to include the feminine gender.
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2.3 Headings.
The headings of Articles and Sections herein are included solely for
convenience, and if there is any conflict between such headings and the text of
the Plan, the text shall control.
ARTICLE III - PARTICIPATION AND ELIGIBILITY
3.1 Participation.
Participants in the Plan are those Eligible Employees or Eligible Directors
who are selected by the Committee, in its sole and absolute discretion, as
Participants. The Committee shall notify each Participant of his selection as a
Participant. Subject to the provisions of Section 3.3, a Participant shall
remain eligible to continue participation in the Plan for each Plan Year
following his initial year of participation in the Plan, provided that if such
Participant would not be an Eligible Employee or an Eligible Director, as the
case may be, with respect to such succeeding Plan Year, then such Participant
shall remain eligible only to continue the deferral of prior Base Salary
Deferrals, Bonus Compensation Deferrals and/or Company Contributions deferred
pursuant to such Participant's prior Deferred Compensation Agreement for periods
in which such Participant was an Eligible Employee or an Eligible Director, as
the case may be, as and to the extent permitted under the Plan, but shall not be
eligible (unless the Committee otherwise determines), to make or have made Base
Salary Deferrals, Bonus Compensation Deferrals and/or Company Contributions into
the Plan for such Plan Year.
3.2 Commencement of Participation.
An Eligible Employee or Eligible Director, as the case may be, shall become
a Participant effective as of the date the Committee determines, which date
shall be on or after the date his initial Deferred Compensation Agreement
becomes effective.
3.3 Cessation of Active Participation.
Notwithstanding any provision herein to the contrary, no Participant shall
have any right or entitlement to continue as a Participant in the Plan except
as, to the extent and for the purposes specifically provided in this Plan or
determined from time to time by the Committee in the administration of this
Plan. The Committee shall be specifically empowered to terminate the Participant
status of any Eligible Employee(s) and/or Eligible Director(s) if the Committee
determines, in its sole and absolute discretion, that such termination is
necessary, appropriate or desirable, including without limitation any such
termination premised on the Committee's determination or belief that
continuation of such Participant status is, would or might be contrary to or
inconsistent with the terms of the Plan or of applicable law, or that such
continuation does, could or might jeopardize the Plan's classification as a "Top
Hat" pension benefit plan or does, could or might endanger the benefits
available under or through the Plan to other Participants. Accordingly, an
individual who has become a Participant in the Plan shall cease to be a
Participant hereunder effective
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as of any date designated by the Committee. In connection with any such
Committee action, the Committee may require that all Base Salary Deferrals,
Bonus Compensation Deferrals and vested Company Contributions (if any) of any
Participant whose status as an Eligible Employee or an Eligible Director is so
terminated be distributed in a lump sum to such former Participant. Any such
Committee action shall be communicated to such Participant prior to the
effective date of such action.
ARTICLE IV - DEFERRALS & COMPANY
CONTRIBUTIONS
4.1 Deferrals by Participants.
Before the first day of each Plan Year (or within 31 days of the
commencement of service for an Eligible Employee or Eligible Director, as the
case may be, whose eligibility to participate in the Plan commences other than
on the first day of a Plan Year), or on or before such other date(s) in any Plan
Year that the Committee may, in its sole discretion, establish or designate for
such purpose, a Participant may file with the Committee a Deferred Compensation
Agreement pursuant to which such Participant elects to make Base Salary
Deferrals and/or Bonus Compensation Deferrals for or with respect to such Plan
Year, provided that elections to make Bonus Compensation Deferrals for Bonus
Compensation payable in 1998 may be made on or prior to December 31, 1997. Any
such Participant election shall be subject to any maximum or minimum percentage
or dollar amount limitations (which, as of the Effective Date, shall include a
maximum Base Salary Deferral limit of 90% of a Participant's Base Salary and a
minimum aggregate annual deferral limitation of $1,000, which limitations may be
changed by the Committee in its sole discretion), and to any other rules
prescribed by the Committee in its sole discretion.
(a) Base Salary Deferrals will be credited to the Account of each
Participant as of the business day of each calendar month on which the
Participant would have received the cash, provided that such Participant is an
Eligible Employee or Eligible Director, as the case may be, on the last day of
such calendar month. A Participant whose employment or Eligible Director status,
as the case may be, terminates during the calendar month shall be paid the
amount of his Base Salary Deferrals for such month in cash.
(b) Bonus Compensation Deferrals will be credited to the Account of each
Participant as of the business day of the month on which such Bonus Compensation
otherwise would have been paid to the Participant in cash, provided that the
Participant is an Eligible Employee or Eligible Director, as the case may be, on
the last day of such month. A Participant whose employment terminates before the
last day in the calendar month in which his Bonus Compensation would have been
paid to him in cash will be paid his Bonus Deferral in cash.
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4.2 Effective Date of Deferred Compensation Agreement.
A Participant's initial Deferred Compensation Agreement shall be effective
as of the first regular Company payroll period (or, in the case of Eligible
Directors, for the first regular payment date for Base Salary paid to such
Eligible Director) beginning after the date the Participant commences
participation in the Plan. Each subsequent Deferred Compensation Agreement shall
become effective on the first day of the Plan Year to which it relates. A
Deferred Compensation Agreement that is timely delivered shall be effective for
the relevant Plan Year (or remaining portion thereof) and, except as otherwise
specified by an Eligible Employee or an Eligible Director, as the case may be,
in his then effective Deferred Compensation Agreement, shall continue to be
effective for each subsequent Plan Year until revoked or modified by written
notice to and, if relevant, approval by the Committee as provided in Section 4.3
or until terminated automatically upon either the termination of the Plan, the
termination of such Participant's participation in the Plan in any capacity, or
the Company becoming Insolvent.
4.3 Modification or Revocation of Election by Participant.
A Participant may not change the amount of his Base Salary or Bonus
Compensation Deferrals during a Plan Year. However, a Participant may
discontinue a Base Salary Deferral election at any time by filing, on such forms
and subject to such limitations and restrictions as the Committee may prescribe
in its discretion, a revised Deferred Compensation Agreement with the Committee.
If approved by the Committee, revocation shall take effect as of and for the
first payroll period next following its approval. If a Participant discontinues
a Base Salary Deferral election during a Plan Year, he will not be permitted to
elect to make Base Salary Deferrals again until the next Plan Year. A
Participant may only discontinue or reduce a Bonus Compensation Deferral
election by a showing of a severe financial hardship in accordance with Section
7.7. Under no circumstances may a Participant's Deferred Compensation Agreement
be made, modified or revoked retroactively.
4.4 Company Contributions.
Subject to Section 2.1(k), each Participant shall be eligible to receive a
Company Contribution. Company Contributions may be in any amount and subject to
such conditions, limitation or qualifications, and determined in any manner the
Company shall deem appropriate in its sole and absolute discretion. Company
Contributions will be credited to the Participant=s Account as of the business
day of a calendar month selected by the Company. Company Contributions may be
made for, but are not limited to, any of the following reasons:
(a) funding for the loss of Company contributions and related earnings on
those contributions that a Participant may incur as a consequence of legislated
eligible compensation or contributions limitations imposed on the Company 401(k)
Plan;
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(b) funding for the loss of any Company qualified plan contributions and
related earnings on those contributions that a Participant may incur as a result
of transferring to another business unit within the Company=s family of
companies, including Subsidiaries and joint venture operations; and
(c) any other purpose which the Company, in its sole and absolute
discretion, shall deem appropriate.
A Participant shall be notified as soon as reasonably practical after the
end of a calendar quarter of any Company Contribution made on his behalf during
the quarter under this Section.
ARTICLE V - VESTING, DEFERRAL PERIODS
AND EARNINGS ELECTION
5.1 Vesting.
A Participant shall be 100% vested in that portion of his Account due to
Base Salary Deferrals and/or Bonus Compensation Deferrals, including any gains,
losses or earnings thereon, at all times. A Participant shall be 100% vested in
that portion of his Account consisting of Company Contributions, including any
gains, losses or earnings thereon, on the first day of the Plan Year next
following the fifth calendar anniversary of the date the Company Contribution
was credited to his Account. A Participant shall be deemed proportionately
vested in that portion of his Account consisting of Company Contributions,
including any gains, losses or earnings thereon, on the date such Participant
ceases to be an Employee (i) after a Change In Control has occurred or (ii) upon
the occurrence of his Retirement Date or (iii) by reason of termination of his
employment by the Company other than for cause. In the event of death or
disability, a Participant shall be 100% vested in his entire Account.
5.2 Deferral Periods.
A Deferral Period shall, at the Participant=s election, be until (i)
Retirement Date, or (ii) a Specific Future Year. In the case of an election to
defer until a Specific Future Year, the Deferral Period must be for any period
of at least five (5) years or more, but may not end later than the year in which
the Participant attains age 70. A Participant must specify on the Deferred
Compensation Agreement the Deferral Period for the Base Salary Deferrals, Bonus
Compensation Deferrals, and Company Contributions (if any) to be made to the
Plan for the Plan Year (or the remaining portion thereof for a Participant who
enters the Plan other than on the first day of a Plan Year) to which the
Deferred Compensation Agreement relates, subject to certain rules as determined
by the Committee from time to time. In the event a Participant does not elect a
Deferral Period for any such Base Salary Deferrals, Bonus Compensation
Deferrals, and Company Contributions (if any) for a Plan Year, such Participant
shall be deemed to have elected a Deferral Period that ends on such
Participant's Retirement Date.
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5.3 Earnings Election.
A Participant's Account shall be credited with gains, losses and earnings
based on hypothetical investment directions made by the Participant, in
accordance with investment deferral crediting options (including the Specified
Alternatives) and procedures adopted by the Committee from time to time. A
Participant may change such hypothetical investment directions pursuant to such
procedures which shall, unless otherwise permitted by the Committee, limit the
number of such changes to one (1) in each calendar month. The Company
specifically retains the right in its sole discretion to change the investment
deferral crediting options (including the Specified Alternatives) and
procedures. By electing to defer any amount pursuant to the Plan, each
Participant shall thereby acknowledge and agree that the Company is not and
shall not be required to make any investment in connection with the Plan, nor is
it required to follow the Participant=s hypothetical investment directions in
any actual investment it may make or acquire in connection with the Plan or in
determining the amount of any actual or contingent liability or obligation of
the Company thereunder or relating thereto. Any amounts credited to a
Participant's Account with respect to which a Participant does not provide
investment direction shall be credited with earnings in an amount determined by
the Committee in its sole discretion or, if an amount is not so determined, such
amounts shall bear interest at the rate applicable to U.S. Treasury Bills having
a maturity of thirty (30) days as in effect from time to time during the
relevant period. A Participant's Account shall be adjusted as of each Valuation
Date to reflect investment gains, losses and earnings. Company Contributions (if
any) shall be deemed invested in the same manner as the relevant Participant's
Base Salary Deferral hypothetical investment elections in his Deferred
Compensation Agreement for the Plan Year. If there is no Base Salary Deferral
election, Company Contributions (if any) shall be deemed invested in the same
manner as the relevant Participant's Bonus Compensation Deferral hypothetical
investment elections; and if none, then shall be credited with earnings in an
amount determined by the Committee in its sole discretion or, if an amount is
not so determined, such amounts shall bear interest at the rate applicable to
U.S. Treasury Bills having a maturity of thirty (30) days as in effect from time
to time during the relevant period.
ARTICLE VI - ACCOUNTS
6.1 Establishment of Bookkeeping Accounts.
A separate bookkeeping account shall be maintained for each Participant.
Such account shall be credited with the Base Salary Deferrals and Bonus
Compensation Deferrals made by the Participant pursuant to Section 4.1, and
Company Contributions (if any) made pursuant to Section 4.4 and credited (or
charged, as the case may be) with the hypothetical investment results determined
pursuant to Section 5.3.
6.2 Subaccounts.
Within each Participant's bookkeeping account, separate subaccounts shall
be maintained to the extent the Committee determines it to be necessary or
desirable for the administration
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of the Plan. For example, it may be necessary or desirable to maintain
separate subaccounts where the Participant has specified different Deferral
Periods, methods of payment or hypothetical investment directions with respect
to his Base Salary Deferrals, Bonus Compensation Deferrals, and Company
Contributions (if any) for different Plan Years.
6.3 Hypothetical Nature of Accounts.
The account established under this Article VI shall be hypothetical in
nature and shall be maintained for bookkeeping purposes only so that earnings
and losses relating to the hypothetical investment of the Base Salary Deferrals,
Bonus Compensation Deferrals and Company Contributions (if any) made pursuant to
the Plan can be credited (or charged, as the case may be). Neither the Plan nor
any of the accounts (or subaccounts) established hereunder shall hold any actual
funds or assets. The right of any person to receive one or more payments under
the Plan shall be an unsecured claim against the general assets of the Company
and no Participant, former Participant or Beneficiary shall have an interest in,
or a lien or prior claim upon, any property of the Company by reason of any
rights of such party, or obligations owed to such party, under this Plan. Any
liability of the Company to any Participant, former Participant, or Beneficiary
with respect to a right to payment shall be based solely upon contractual
obligations created by the Plan and no Subsidiary of the Company shall have any
obligations or liability to any such person, nor shall any such person have any
claim whatsoever against any Subsidiary, by reason of any Account of such person
or amount or obligation owed to such person under this Plan. Neither the
Company, any Subsidiary, the Directors, the Committee nor any other person shall
be deemed to be a trustee of any amounts to be paid under the Plan. Nothing
contained in the Plan, and no action taken pursuant to its provisions, shall
create or be construed to create a trust of any kind, or a fiduciary
relationship, between the Company or any of its Subsidiaries and a Participant
or any other person.
ARTICLE VII - PAYMENT OF ACCOUNT
7.1 Timing of Distribution of Benefits.
Distribution of Base Salary Deferrals, Bonus Compensation Deferrals and
Company Contributions to a Participant shall be made as soon as practicable
following the date the Deferral Period for such amounts ends.
(a) If a Participant ceases to be an Employee at a time other than his
Retirement Date (for reasons other than such Participant's death or disability),
then such Participant=s entire Account balance shall be distributed to him in a
lump sum as soon as administratively practical following the date on which the
relevant event occurs, but no later than 60 days following such date unless (i)
the Participant makes a written request to the Committee in the calendar year
prior to the calendar year in which such date occurs for an extended
distribution period not to exceed five calendar years; provided, that the
Committee, in its sole discretion, may grant or refuse such a request or (ii)
the Committee, in its sole discretion, elects to defer such distribution
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and/or make such distribution in annual installments, in either case
resulting in payment of such Participant's entire Account balance within five
years of such date; provided that the Committee shall not make or continue such
election after a Change In Control.
(b) Notwithstanding the foregoing, upon the earlier to occur of (i) the
Participant's death, or (ii) the Participant's permanent disability (as defined
for purposes of the Company's long-term disability program), the Participant's
entire Account balance shall be distributed to him (or to his Beneficiary in the
event of his death) in a lump sum as soon as administratively practical
following the date of such event, but no later than 60 days following such date,
unless the Participant specifies a different payment schedule with respect to
such events in his then effective Deferred Compensation Agreement. If the
Participant has elected to receive such distribution other than in a lump sum,
such distribution may be accelerated, including to lump sum, based upon a
showing of severe financial hardship in accordance with Section 7.7 by the
Participant or his Beneficiary.
7.2 Adjustment for Investment Gains and Losses Upon a Distribution.
Upon a distribution pursuant to this Article VII, the balance of a
Participant's Account shall be determined as of the Valuation Date immediately
preceding the date of the distribution to be made and shall be adjusted for
investment gains, losses and earnings which have accrued to the date of
distribution but which have not been credited to his Account.
7.3 Form of Payment or Payments.
Base Salary Deferrals, Bonus Compensation Deferrals and Company
Contributions (if any) shall be distributed in accordance with the form of
payment elected by the Participant on the Deferred Compensation Agreement to
which such amounts relate. The form of payment with respect to amounts and the
earnings credited thereon may be in any of the following forms:
(a) A lump sum; or
(b) Installment payments for a period not to exceed fifteen years.
Installment payments shall be paid annually as of the first business day of
January of each Plan Year or quarterly as of the first business day of each
calendar quarter as elected by the Participant. Each installment payment shall
be determined by multiplying the amounts to be distributed by a fraction, the
numerator of which is one and the denominator of which is the number of
remaining installment payments to be made to Participant. Anything contained
herein to the contrary notwithstanding, total distribution of a Participant's
Account must be made by the later of the date such Participant attains age 85 or
the Participant's termination of employment. In the calendar year prior to the
calendar year in which a distribution of a Participant=s Account is scheduled to
begin distribution (but no less than 180 days prior to the distribution date in
all events), a Participant may request a change in the
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amount and/or schedule of payment of such distribution which may be
approved or disapproved by the Committee in its sole discretion.
7.4 Small Accounts.
The Committee, in its sole discretion, may establish minimum amounts for
distributions to be made in installments, and also may distribute a
Participant=s Account in one lump sum, if it is less than $25,000 on the date
distribution is scheduled to begin.
7.5 Designation of Beneficiaries.
Each Participant shall have the right to designate the Beneficiary or
Beneficiaries to receive payment of his Account in the event of his death. A
Beneficiary designation shall be made by executing the Beneficiary designation
form prescribed by the Committee and filing the same with the Committee. Any
such designation may be changed at any time by execution of a new designation in
accordance with this Section. If no such designation is on file with the
Committee at the time of the death of the Participant or such designation is not
effective for any reason as determined by the Committee, then the designated
Beneficiary or Beneficiaries to receive such benefit shall be the Participant's
surviving spouse, if any, or if none, the Participant's executor or
administrator, or his heirs at law if there is no administration of such
Participant's estate, or otherwise as may be directed by law, or by order or
judgment of a court of competent jurisdiction.
7.6 Unclaimed Benefits.
In the case of an amount payable pursuant to the Plan on behalf of a
Participant, if the Committee is unable to locate the Participant or Beneficiary
to whom such amount is payable, such amount may be forfeited to the Company,
upon the Committee's determination, and subject to applicable escheat and
similar laws. Notwithstanding the foregoing, if subsequent to any such
forfeiture that is received and retained by the Company, the Participant or
Beneficiary to whom such amount is payable makes a valid claim for such amount,
such forfeited amount shall be paid by the Company or restored to the Plan by
the Company.
7.7 Hardship Withdrawals.
A Participant may apply in writing to the Committee for, and the Committee
may permit, a hardship withdrawal of all or any part of a Participant's Account
if the Committee, in its sole discretion, determines that the Participant has
incurred (a) a severe financial hardship resulting from a sudden and unexpected
illness or accident of the Participant or of a dependent (as defined in section
152(a) of the Code) of the Participant, or (b) a loss of property due to
casualty, or other similar extraordinary and unforeseeable circumstances arising
as a result of events beyond the control of the Participant, as determined by
the Committee, in its sole and absolute discretion. The amount that may be
withdrawn shall be limited to the amount reasonably necessary to relieve the
hardship or financial emergency upon which the request is based, plus the
federal and state taxes due on the withdrawal, as
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determined by the Committee. The Committee may require a Participant who
requests a hardship withdrawal to submit such evidence as the Committee, in its
sole discretion, deems necessary or appropriate to substantiate the
circumstances upon which the request is based.
7.8 Other Withdrawals
At any time, a Participant may request that 90% of (or a designated portion
of) his Account balance be paid to him provided, that in anticipation of or
following a Change In Control, a Participant may request that up to 100% of his
Account balance be paid to him. Except as provided below in connection with a
Change In Control, the Committee in its sole discretion may approve or
disapprove such a request. If (a) the Committee approves the request or (b) in
connection with a Change In Control, the Company has established a Funded Rabbi
Trust (as defined below), and in either such case the requesting Participant
receives a payment under this Section, he shall (1) permanently forfeit the
remaining 10% of the entire account balance (or designated portion of it) which
shall not be paid to, or in respect of, the Participant; and (2) the Participant
shall lose the right to make additional deferrals into the Plan until the Plan
Year that immediately follows the first anniversary of the date on which such
Participant receives a distribution under this Section. If a Participant has
filed a request under this section in anticipation of or after a Change In
Control, then the Committee may not disapprove such request, but shall notify
the Participant, by appropriate written certification delivered to such
Participant within 10 days of his request, whether or not the Company has
established, as contemplated in Section 10.6, an irrevocable trust, controlled
by an independent trustee, which has been funded with cash or other liquid
assets having a value of at least 110% of the aggregate Account balances
deferred pursuant to the Plan as of such date (a "Funded Rabbi Trust"). If the
Committee so notifies the Participant of the establishment of a Funded Rabbi
Trust, then the Participant's previously filed request under this Section shall
be deemed revoked, unless the Participant resubmits such request following the
Change In Control, and in any such resubmitted request, the Participant may only
request that 90% of (or a designated portion of) his Account balance be paid to
him (which request shall not be subject to Committee approval). If the Committee
does not so notify the Participant of the establishment of a Funded Rabbi Trust,
(1) the amount of the distribution requested by such Participant (up to the
entire Account balance of such Participant) shall be paid to him not later than
the fourteenth (14th) day after the date of his request and (2) the Participant
shall lose the right to make additional deferrals into the Plan until the Plan
Year that immediately follows the first anniversary of the date on which such
Participant receives such distribution.
ARTICLE VIII - ADMINISTRATION
8.1 Committee.
The Plan shall be administered by the Committee as contemplated in Section
1.6, or by such other person, entity or body as may be retained, constituted or
appointed for such purpose from time to time by the Directors. The Committee
shall be responsible for the general operation and administration of the Plan
and for carrying out the provisions thereof. The
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Committee may delegate to others certain aspects of the management and
operational responsibilities of the Plan including the employment of advisors
and the delegation of ministerial duties to qualified individuals, provided that
such delegation is in writing.
8.2 General Powers of Administration.
The Committee shall have all powers necessary or appropriate to enable it
to carry out its administrative duties. Not in limitation, but in application of
the foregoing, the Committee shall have the duty and power to interpret the
Plan, to make findings of fact and to determine all questions that may arise
hereunder as to the status and rights of Employees, Participants, and
Beneficiaries. The Committee may exercise the powers hereby granted in its sole
and absolute discretion. No member of the Committee shall be personally liable
for any actions taken by the Committee unless the member's action involves
willful misconduct.
8.3 Costs of Administration.
The costs of administering the Plan shall be borne by the Company unless
and until the Participant receives written notice of the imposition of such
administrative costs, with such costs to begin with the next Plan Year and no
costs may be assessed retroactively for prior Plan Years. Such costs shall be
charged against the Participant's Account and shall be uniform for all Plan
Participants.
8.4 Indemnification of Committee.
The Company shall indemnify the members of the Committee against any and
all claims, losses, damages, costs and expenses, including attorney's fees,
incurred by them, and any liability, including any amounts paid in settlement
with their approval, arising from their action or failure to act, except when
the same is judicially determined to be attributable to their gross negligence
or willful misconduct.
ARTICLE IX - DETERMINATION OF BENEFITS,
CLAIMS PROCEDURE AND ADMINISTRATION
9.1 Claims.
A person who believes that he is being denied a benefit to which he is
entitled under the Plan (hereinafter referred to as a "Claimant") may file a
written request for such benefit with the Committee, setting forth his claim.
The request must be addressed to the Committee at the Company at its then
principal place of business.
9.2 Claim Decision.
Upon receipt of a claim, the Committee shall advise the Claimant that a
reply will be forthcoming within ninety (90) days and shall, in fact, deliver
such reply within such period.
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The Committee may, however, extend the reply period for an additional
ninety (90) days for reasonable cause.
If the claim is denied in whole or in part, the Committee shall adopt a
written opinion, using language calculated to be understood by the Claimant,
setting forth:
(1) The specific reason or reasons for such denial;
(2) The specific reference to pertinent provisions of the Plan on which
such denial is based;
(3) A description of any additional material or information necessary for
the Claimant to perfect his claim and an explanation why such material or such
information is necessary;
(4) Appropriate information as to the steps to be taken if the Claimant
wishes to submit the claim for review; and
(5) The time limits for requesting a review under Section 9.3 and Section
9.4 hereof.
9.3 Request for Review.
Within sixty (60) days after the receipt by the Claimant of the written
opinion described above, the Claimant may request in writing that the Company
review the determination of the Committee. Such request must be addressed to the
Secretary of the Company, at its then principal place of business. The Claimant
or his duly authorized representative may, but need not, review the pertinent
documents and submit issues and comments in writing for consideration by the
Company. If the Claimant does not request a review of the Committee's
determination by the Secretary of the Company within such sixty (60) day period,
he shall be barred and estopped from challenging the Committee's determination.
9.4 Review of Decision.
Within sixty (60) days after the Secretary's receipt of a request for
review, he will review the Committee's determination. After considering all
materials presented by the Claimant, the Secretary will render a written
opinion, written in a manner calculated to be understood by the Claimant,
setting forth the specific reasons for the decision and containing specific
references to the pertinent provisions of this Plan on which the decision is
based. If special circumstances require that the sixty (60) day time period be
extended, the Secretary will so notify the Claimant and will render the decision
as soon as possible, but no later than one hundred twenty (120) days after
receipt of the request for review.
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ARTICLE X - MISCELLANEOUS
10.1 Not Contract of Employment.
The adoption and maintenance of the Plan shall not be deemed to be a
contract between the Company or any of its Subsidiaries and any person or to be
consideration for the employment of, or service as a director by, any person.
Nothing herein contained shall be deemed to give any person the right to be
retained in the employ of the Company or any of its Subsidiaries or to be
nominated, elected or not removed as a director of the Company or any of its
Subsidiaries or to restrict the right of the Company or any of its Subsidiaries
to discharge any person at any time nor shall the Plan be deemed to give the
Company or any of its Subsidiaries the right to require any person to remain in
the employ or to continue as a director of the Company or any of its
Subsidiaries or to restrict any person's right to terminate his employment or
service as a director at any time.
10.2 Non-Assignability of Benefits.
No Participant, Beneficiary or distributee of benefits under the Plan shall
have any power or right to transfer, assign, anticipate, hypothecate or
otherwise encumber any part or all of the amounts payable hereunder, which are
expressly declared to be unassignable and non-transferable. Any such attempted
assignment or transfer shall be void. No amount payable hereunder shall, prior
to actual payment thereof, be subject to seizure by any creditor of any such
Participant, Beneficiary or other distributee for the payment of any debt
judgment or other obligation, by a proceeding at law or in equity, nor
transferable by operation of law in the event of the bankruptcy, insolvency or
death of such Participant, Beneficiary or other distributee hereunder.
10.3 Withholding.
All deferrals and payments provided for hereunder shall be subject to
applicable withholding and other deductions as shall be required of the Company
under any applicable local, state or federal law. The Company shall not be
deemed to have made any representation or warranty to any Participant,
Beneficiary or any other person concerning the appropriate income or other tax
treatment of amounts deferred and/or distributed pursuant to this Plan under the
Code (as now or hereafter in effect) or under any other federal, state, local or
foreign tax or similar law, rule or regulation. All of such matters, and the
responsibility of any Participant, Beneficiary, Eligible Employee and/or
Eligible Director to satisfy such person's tax and similar reporting and payment
obligations in accordance with applicable law in respect of any amounts deferred
or distributed under this Plan, shall be and remain the sole and exclusive
responsibility and obligation of such individual, and each individual
Participant, in consideration of his participation in the Plan, shall agree to
indemnify and
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hold the Company, its Subsidiaries and their respective directors,
officers, employees, agents and advisors harmless from and against such
responsibilities and liabilities and any failure on the part of such individual
Participant and/or his Beneficiaries to perform and discharge them fully and in
a timely manner. This indemnity shall survive any such Participant's
participation in the Plan, any termination of the Plan and any termination of
such Participant's employment with or by, or service as a director of, the
Company or any of its Subsidiaries for any reason whatsoever.
10.4 Amendment and Termination.
The Compensation Committee and/or the Directors may from time to time, in
its discretion, amend, in whole or in part, any or all of the provisions of the
Plan; provided, however, that no amendment may be made that would impair the
rights of a Participant with respect to amounts already allocated to his
Account. The Compensation Committee and/or the Directors may terminate the Plan
at any time. In the event that the Plan is terminated, the balance in a
Participant's Account shall be paid to such Participant or his Beneficiary in a
single cash lump sum in full satisfaction of all such Participant's or
Beneficiary's benefits hereunder. Any such amendment to or termination of the
Plan shall be in writing and signed by a member of the Compensation Committee
or, if by the Directors, by the Secretary of the Company.
10.5 No Trust Created.
Nothing contained in this Plan, and no action taken pursuant to its
provisions by any party, shall create, nor be construed to create, a trust of
any kind or a fiduciary relationship between the Company or any of its
Subsidiaries and any Participant, his Beneficiaries, or any other person.
10.6 Unsecured General Creditor Status Of Employee.
(a) The payments to a Participant, his Beneficiary or any other distributee
hereunder shall be made from assets which shall continue, for all purposes, to
be a part of the general, unrestricted assets of the Company; no person shall
have nor acquire any interest in any such assets by virtue of the provisions of
this Plan. The Company's obligation hereunder shall be an unfunded and unsecured
promise to pay money in the future. To the extent that the Participant
Beneficiary or other distributee acquires a right to receive payments from the
Company under the provisions hereof, such right shall be no greater than the
right of any unsecured general creditor of the Company; no such person shall
have nor acquire any legal or equitable right, interest or claim in or to any
property or assets of the Company.
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(b) In the event that, in its discretion, the Company purchases an
insurance policy or policies insuring the life of any Eligible Employee or
Eligible Director (or any other property) to allow the Company to recover the
cost of providing the benefits, in whole, or in part, hereunder, none of the
Participant, their respective Beneficiaries or other distributees shall have nor
acquire any rights whatsoever therein or in the proceeds therefrom. The Company
shall be the sole owner and beneficiary of any such policy or policies and, as
such, shall possess and, may exercise all incidents of ownership therein. No
such policy, policies or other property shall be held in any trust for a
Participant, Beneficiary or other distributee or held as collateral security for
any obligation of the Company hereunder. An Eligible Employee=s or Eligible
Director's participation in the underwriting or other steps necessary to acquire
such policy or policies may be required by the Company and, if required, shall
not be a suggestion of any beneficial interest in such policy or policies to
such Participant or any other person.
(c) To meet its obligations under the Plan, the Company may (but shall not
be obligated to) establish a trust or trusts, or such other funding devices as
the Committee shall deem appropriate, advisable or desirable, which may take the
form of grantor trusts, may be revocable or irrevocable, and may have
independent trustees (such trusts or other funding devices collectively
"Trusts"). If any such Trusts are established, then so long as they are
maintained, the assets of such Trusts will be used only to pay benefits and
administrative expenses of the Plan; provided, however, that the assets of such
Trusts will be subject to the claims of creditors of the Company in the event
the Company becomes Insolvent. To the extent that the assets of such Trusts are
insufficient to pay benefits due under the Plan, such benefits shall be paid by
the Company from its general assets, which assets shall, at all times, remain
subject to the claims of the Company's creditors. Neither Participants, their
Beneficiaries nor their legal representatives shall have any right, actual or
beneficial, other than the right of an unsecured general creditor, against the
Company or against any of such Trusts in respect of any portion of a
Participant's Account. The Company has no obligation to make or to continue to
make any contributions to any Trusts that may be established in connection with
the Plan and any such contributions, if made, shall be made (and may be
discontinued) in the sole discretion of the Company.
10.7 Severability.
If any provision of this Plan shall be held illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining provisions
hereof; instead, each provision shall be fully severable and the Plan shall be
construed and enforced as if said illegal or invalid provision had never been
included herein.
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10.8 Governing Laws.
All provisions of the Plan shall be construed in accordance with the laws
of Virginia except to the extent preempted by federal law.
10.9 Binding Effect.
This Plan shall be binding on each Participant and his heirs and legal
representatives and Beneficiaries and on the Company and its successors and
assigns.
10.10 Entire Agreement.
This document and any amendments contain all the terms and provisions of
the Plan and shall constitute the entire Plan, any other alleged terms or
provisions being of no effect.
IN WITNESS WHEREOF, the Company has caused this Plan to be properly
executed as of the 16th day of December, 1997.
NEXTEL COMMUNICATIONS, INC.
(Corporate Seal) By:/s/Deborah A. Keller
_______________________________
Deborah A. Keller
Vice President, Human Resources
Attested to:
/s/Ried Zulager
____________________________________
Ried Zulager
Secretary
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EXHIBIT A
NEXTEL COMMUNICATIONS, INC.
CASH COMPENSATION DEFERRAL PLAN
SPECIFIED ALTERNATIVES
<PAGE>
SPECIFIED ALTERNATIVES
Overview
The value of your deferral will be determined by the performance of an
attractive array of Investment Options. You may elect to allocate your monthly
base salary and/or your bonus compensation deferral in increments of 1% among
these options, and reallocate them once in each calendar month subject only to
special restrictions as the Plan may provide. Your deferred account will be
credited or charged with the change in value of the particular financial option
or options selected, including reinvestment of dividends and capital gains,
where applicable. Please remember that these Investment Options are hypothetical
in nature; no monies are actually invested in the allocations selected.
Your deferrals will be treated as if invested in shares of your fund
choice. Your deferrals will be converted to share equivalents based on the
closing price on the day the deferrals are credited to your deferral account
(monthly for salary and on the payment date in the case of variable
compensation). You will be credited with the value of the funds chosen,
including reinvestment of dividends and capital gains, when applicable.
Your Investment Options are as follows:
PIMCO Total Return Fund (Bond)
This fund seeks to maximize total return consistent with prudent investment
management. The fund will primarily invest in the following types of securities:
obligations issued or guaranteed by the U.S. Government, its agencies, or
instrumentalities; U.S. dollar denominated corporate debt securities of domestic
or foreign issuers; mortgage and other asset-backed securities; variable and
floating rate debt securities; U.S. dollar-denominated obligations of foreign
governments, foreign government agencies, and international agencies (such as
the International Bank for Reconstruction and Development); and any of the
following: high quality commercial paper; certificates of deposit; fixed time
deposits and bankers' acceptances issued by domestic and foreign banks
denominated in U.S. dollars; and repurchase and reverse repurchase agreements.
History of Total Annual Return
1992 . . . . . . . . . . . . . . . . . 9.75%
1993 . . . . . . . . . . . . . . . . . . 12.52%
1994 . . . . . . . . . . . . . . . . . . (3.58)%
1995 . . . . . . . . . . . . . . . . . . 19.79%
1996 . . . . . . . . . . . . . . . . . . 4.69%
1997 (as of 6/30/97) . . . . . . . . . . 3.42%
5 Year Average Annual Total Return . . . . . . . 8.32%
Bankers Trust Equity 500 Index
This fund seeks to provide investment results that correspond to the total
return performance of common stocks that are publicly traded in the United
States. The fund attempts to achieve its objective by investing in stocks
included in the S&P 500. The S&P 500 is a capitalization-weighted index, based
on the relative market capitalization of 500 different companies selected by
S&P, including companies in the industrial, utility, financial, and
transportation industry sectors. The fund attempts to replicate the investment
results of the S&P 500, while minimizing transactional costs and other expenses.
The fund will purchase common stock of those companies included in the S&P,
which the fund Manager believes, based on statistical data, will represent the
<PAGE>
industry diversification of the entire S&P 500. The fund will be managed to
attempt to minimize the degree to which investment results of the fund (before
taking into account the fund's expenses) differ from the results of the index.
The degree to which the fund correlates with the index will depend upon the size
and cash flow of the fund, the liquidity of the securities represented in the
index will depend upon the size and cash flow of the fund, the liquidity of the
securities represented in the index, and the Fund's expenses, among other
factors. There is no fixed number of component stocks in which the Fund will
invest. However, it is anticipated that under normal circumstances the Fund will
hold between 200 and 450 of the stocks listed in the S&P 500.
History of Total Annual Return
1993 . . . . . . . . . . . . . . . . . . 9.53%
1994 . . . . . . . . . . . . . . . . . . 1.14%
1995 . . . . . . . . . . . . . . . . . . 37.15%
1996 . . . . . . . . . . . . . . . . . . 22.83%
1997 (as of 6/30/97) . . . . . . . . . . 20.47%
5 Year Average Annual Total Return . . . . . . . 28.56%
INVESCO Total Return Fund
The investment objective of the INVESCO Total Return Fund (the "Total
Return Fund") is to seek a high total return on investment through capital
appreciation and current income. The Total Return Fund seeks to accomplish its
objective by investing in a combination of equity securities and fixed income
securities. Although there is no limitation on the maturity of the Total Return
Fund's investment in fixed income securities, the dollar-weighted average
maturity of such investments normally will be from 3 to 15 years.
The equity securities to be acquired by the Total Return Fund consist of
common stocks and, to a lesser extent, securities convertible into common
stocks. Such securities generally will be issued by companies listed on a
national securities exchange (such as the New York Stock Exchange) and that
usually pay regular dividends. The income securities to be acquired by the Total
Return Fund will include obligations of the U.S. government and government
agencies. These U.S. Government obligations consist of direct obligations of the
U.S. government, such as U.S. Treasury bills, notes and bonds, obligations
guaranteed by the U.S. government, such as Government National Mortgage
Association obligations, and obligations of U.S. government authorities,
agencies and instrumentalities, which are supported only by the assets of the
issuer, such as the Federal National Mortgage Association, Federal Home Loan
Bank, Federal Financing Bank and Federal Farm Credit Bank. The Total Return Fund
may also invest in corporate debt obligations that are rated in one of the four
highest ratings of corporate obligations by Standard & Poor's (AAA, AA, A and
BBB) or by Moody's (Aaa, Aa, A and Ba), or, if not rated, that in Fund
Management's opinion have investment characteristics similar to those described
in such ratings.
Typically, at least 30% of the Total Return Fund's investment fund will be
comprised of equities and at least 30% fixed and variable income securities. The
remaining 40% of the fund will vary in asset allocation according to Fund
Management's assessment of business, economic and market conditions.
History of Total Annual Return
1992 . . . . . . . . . . . . . . . . . . 9.85%
1993 . . . . . . . . . . . . . . . . . . 12.36%
1994 . . . . . . . . . . . . . . . . . . 2.52%
1995 . . . . . . . . . . . . . . . . . . 28.64%
<PAGE>
1996 . . . . . . . . . . . . . . . . . . 13.07%
1997 (as of 6/30/97) . . . . . . . . . . 13.95%
5 Year Average Annual Total Return . . . . . . . 15.35%
Neuberger&Berman Partners
The investment of this fund is to seek capital growth. The fund invests
principally in common stocks of medium to large capitalization established
companies, using the value-oriented investment approach. The fund seeks capital
growth through as investment approach that is designed to increase capital with
reasonable risk. Neuberger&Berman Management looks for securities believed to be
undervalued based on strong fundamentals, including a low price-to-earnings
ratio, consistent cash flow, and the company's track record through all parts of
the market cycle.
Up to 15% of the fund's net assets, measured at the time of investment, may
be invested in corporate debt securities that are below investment grade or in
comparable unrated securities. Securities rated below investment grade as well
as comparable unrated securities are often considered to be speculative and
usually entail greater risk.
History of Total Annual Return
1992 . . . . . . . . . . . . . . . . . . 17.52%
1993 . . . . . . . . . . . . . . . . . . 16.46%
1994 . . . . . . . . . . . . . . . . . (1.89)%
1995 . . . . . . . . . . . . . . . . . . 35.21%
1996 . . . . . . . . . . . . . . . . . . 26.49%
1997 (as of 6/30/97) . . . . . . . . . 16.08%
5 Year Average Annual Total Return . . . . . . . 20.99%
Alger American MidCap Growth B
The investment objective of the fund is long-term capital appreciation.
Except during temporary defensive periods, the fund invests at least 65% of its
total assets in equity securities of companies that, at the time of purchase of
the securities, have total market capitalization within the range of companies
included in the S&P MidCap 400 Index, updated quarterly. The S&P MidCap index is
designed to track the performance of medium capitalization companies. As of
March 31, 1997, the range of market capitalization of these companies was $120
million to $7.193 billion. The Fund may invest up to 35% of its total assets in
equity securities of companies that, at the time of purchase, have total market
capitalization outside the range of companies included in the S&P MidCap 400
Index and in excess of that amount (up to 100% of its assets) during temporary
defensive periods.
History of Total Annual Return
1994 . . . . . . . . . . . . . . . . . . 0.56%
1995 . . . . . . . . . . . . . . . . . . 46.49%
1996 . . . . . . . . . . . . . . . . . . 12.04%
1997 (as of 6/30/97) . . . . . . . . . . 8.03%
3 Year Average Annual Total Return . . . . . . . 27.01%
<PAGE>
Alger American Small Capitalization B
The investment objective of the fund is long-term capital appreciation.
Except during temporary defensive periods, the fund invests at least 65% of its
total assets in equity securities of companies that, at the time of purchase of
the securities, have "total market capitalization" -- present market value per
share multiplied by the total number of shares outstanding -- within the range
of companies included in the Russell 2000 Growth Index ("Russell Index") or the
S&P SmallCap 600 Index ("S&P Index"), updated quarterly. Both indexes are broad
indexes of small capitalization stocks. As of March 31, 1997, the range of
market capitalization of the companies in the Russell Index was $10 million to
$1.94 billion; the range of market capitalization of the companies in the S&P
Index at that date was $32 million to $2.579 billion. The combined range as of
that date was $10 million to $2.579 billion. The Fund may invest up to 35% of
its total assets in equity securities of companies that, at the time of
purchase, have total market capitalization outside the combined range, and in
excess of that amount (up to 100% of its assets) during temporary defensive
periods.
History of Total Annual Return
1992 . . . . . . . . . . . . . . . .. . . 4.00%
1993 . . . . . . . . . . . . . . . . . . 12.77%
1994 . . . . . . . . . . . . . . . . . . (4.53)%
1995 . . . . . . . . . . . . . . . . . . 48.85%
1996 . . . . . . . . . . . . . . . . . . 4.17%
1997 (as of 6/30/97) . . . . . . . . . . 1.63%
3 Year Average Annual Total Return . . . . . . . 16.74%
Morgan Stanley International Magnum B
The fund seeks long-term capital appreciation primarily through investment
in equity securities of corporations domiciled in countries other than the
United States. Current income from dividends and interest will not be an
important consideration. Other than when in a defensive posture, at least 70% of
the fund's assets will consist of corporate securities, primarily common stock
and, to a lesser extent, securities convertible into common stock. The Fund may,
however, for defensive purposes as described below, invest in nonconvertible
fixed income securities denominated in currencies of foreign countries and in
United States dollars.
Investing in the securities of foreign issuers involves special risks and
considerations not typically associated with investing in U.S. companies. These
risks include exposure to foreign currencies and fluctuations in such currencies
and political, economic, regulatory, and operational factors associated with
exposure to foreign countries. Investment in emerging market countries presents
risks in greater degree than, and in addition to, those presented by investment
in foreign issuers in general.
History of Total Annual Return
1997 (as of 6/30/97) . . . . . . 14.19%
Average Annual Total Return . . . . . . . . . . . 16.40%
(since inception of June 30, 1996)
Exhibit 5
Jones, Day, Reavis & Pogue
303 Peachtree Street, N.E.
3500 SunTrust Plaza
Atlanta, Georgia 30308
(404) 521-3939
December 16, 1997
Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
Gentlemen:
We have acted as counsel to Nextel Communications, Inc., a Delaware
corporation (the "Company"), in connection with the registration of deferred
compensation obligations (the "Obligations") to be offered and sold under the
Nextel Communications, Inc. Cash Compensation Deferral Plan (the "Plan") on a
registration statement on Form S-8 (the "Registration Statement"), filed with
the Securities and Exchange Commission to which this opinion appears as
Exhibit 5.
We have examined originals or certified or photostatic copies of such
records of the Company, certificates of officers of the Company, and public
officials and such other documents as we have deemed relevant or necessary as
the basis of the opinion set forth below in this letter. In such examination, we
have assumed the genuineness of all signatures, the conformity to original
documents submitted as certified or photostatic copies, and the authenticity of
originals of such latter documents. Based on the foregoing, we are of the
following opinion:
1. The Obligations, when established pursuant to the terms of the Plan,
will be valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms and the terms of the Plan, except as
enforceability (i) may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting creditors' rights generally, and (ii) is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
<PAGE>
Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
2. The provisions of the written Plan documents comply with the applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA").
Our opinion expressed in paragraph 2 applies only as to the form of the
written Plan documents. Accordingly, but without limitation of the preceding
sentence, we express no opinion as to whether the employees eligible to
participate in the Plan constitute a select group of management or highly
compensated employees or whether the Plan will be considered "funded" for
purposes of ERISA, which are factual issues depending upon the facts and
circumstances in existence from time to time.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Sincerely,
/s/ Jones, Day, Reavis & Pogue
JONES, DAY, REAVIS & POGUE
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 20, 1997,
except for Note 13, as to which the date is March 27, 1997, appearing in the
Annual Report on Form 10-K of Nextel Communications, Inc. for the year ended
December 31, 1996.
DELOITTE & TOUCHE LLP
McLean, Virginia
December 16, 1997
Exhibit 24
POWER OF ATTORNEY
NEXTEL COMMUNICATIONS, INC.
The undersigned, a director and/or officer of Nextel Communications, Inc.,
a Delaware corporation (the "Company"), which Company intends to file with the
Securities and Exchange Commission under the provisions of the Securities Act of
1933 a Registration Statement on Form S-8 or other appropriate form in
connection with unsecured contributions to the Company to be paid in accordance
with the Company's Cash Compensation Deferral Plan does hereby constitute and
appoint Steven M. Shindler, Thomas D. Hickey, Gary D. Begeman and Thomas J.
Sidman, and each of them, each with full power to act without the other and with
full power of substitution and resubstitution, as attorneys or attorney to sign
and file in his or her name, place and stead, in any and all capacities, such
Registration Statement, any and all amendments and exhibits thereto, and any and
all other documents to be filed with the Securities and Exchange Commission
pertaining to or relating to such Registration Statement, or any other document
with any state securities commission or other regulatory authority with respect
to the securities covered by such Registration Statement, with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done, hereby ratifying and approving the acts of said attorneys
and each of them and any substitute or substitutes.
December 17, 1997
/s/Daniel F. Akerson
Daniel F. Akerson
Chairman of the Board, Director
and Chief Executive Officer
(Principal Executive Officer)
<PAGE>
POWER OF ATTORNEY
NEXTEL COMMUNICATIONS, INC.
The undersigned, a director and/or officer of Nextel Communications, Inc.,
a Delaware corporation (the "Company"), which Company intends to file with the
Securities and Exchange Commission under the provisions of the Securities Act of
1933 a Registration Statement on Form S-8 or other appropriate form in
connection with unsecured contributions to the Company to be paid in accordance
with the Company's Cash Compensation Deferral Plan does hereby constitute and
appoint Steven M. Shindler, Thomas D. Hickey, Gary D. Begeman and Thomas J.
Sidman, and each of them, each with full power to act without the other and with
full power of substitution and resubstitution, as attorneys or attorney to sign
and file in his or her name, place and stead, in any and all capacities, such
Registration Statement, any and all amendments and exhibits thereto, and any and
all other documents to be filed with the Securities and Exchange Commission
pertaining to or relating to such Registration Statement, or any other document
with any state securities commission or other regulatory authority with respect
to the securities covered by such Registration Statement, with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done, hereby ratifying and approving the acts of said attorneys
and each of them and any substitute or substitutes.
December 17, 1997
/s/Steven M. Shindler
Steven M. Shindler
Vice President and Chief
Financial Officer
(Principal Financial Officer)
<PAGE>
POWER OF ATTORNEY
NEXTEL COMMUNICATIONS, INC.
The undersigned, a director and/or officer of Nextel Communications, Inc.,
a Delaware corporation (the "Company"), which Company intends to file with the
Securities and Exchange Commission under the provisions of the Securities Act of
1933 a Registration Statement on Form S-8 or other appropriate form in
connection with unsecured contributions to the Company to be paid in accordance
with the Company's Cash Compensation Deferral Plan does hereby constitute and
appoint Steven M. Shindler, Thomas D. Hickey, Gary D. Begeman and Thomas J.
Sidman, and each of them, each with full power to act without the other and with
full power of substitution and resubstitution, as attorneys or attorney to sign
and file in his or her name, place and stead, in any and all capacities, such
Registration Statement, any and all amendments and exhibits thereto, and any and
all other documents to be filed with the Securities and Exchange Commission
pertaining to or relating to such Registration Statement, or any other document
with any state securities commission or other regulatory authority with respect
to the securities covered by such Registration Statement, with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done, hereby ratifying and approving the acts of said attorneys
and each of them and any substitute or substitutes.
December 17, 1997
/s/William Arendt
William Arendt
Controller (Principal
Accounting Officer)
<PAGE>
POWER OF ATTORNEY
NEXTEL COMMUNICATIONS, INC.
The undersigned, a director and/or officer of Nextel Communications, Inc.,
a Delaware corporation (the "Company"), which Company intends to file with the
Securities and Exchange Commission under the provisions of the Securities Act of
1933 a Registration Statement on Form S-8 or other appropriate form in
connection with unsecured contributions to the Company to be paid in accordance
with the Company's Cash Compensation Deferral Plan does hereby constitute and
appoint Steven M. Shindler, Thomas D. Hickey, Gary D. Begeman and Thomas J.
Sidman, and each of them, each with full power to act without the other and with
full power of substitution and resubstitution, as attorneys or attorney to sign
and file in his or her name, place and stead, in any and all capacities, such
Registration Statement, any and all amendments and exhibits thereto, and any and
all other documents to be filed with the Securities and Exchange Commission
pertaining to or relating to such Registration Statement, or any other document
with any state securities commission or other regulatory authority with respect
to the securities covered by such Registration Statement, with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done, hereby ratifying and approving the acts of said attorneys
and each of them and any substitute or substitutes.
December 17, 1997
/s/Morgan E. O'Brien
Morgan E. O'Brien
Vice Chairman of the Board
and Director
<PAGE>
POWER OF ATTORNEY
NEXTEL COMMUNICATIONS, INC.
The undersigned, a director and/or officer of Nextel Communications, Inc.,
a Delaware corporation (the "Company"), which Company intends to file with the
Securities and Exchange Commission under the provisions of the Securities Act of
1933 a Registration Statement on Form S-8 or other appropriate form in
connection with unsecured contributions to the Company to be paid in accordance
with the Company's Cash Compensation Deferral Plan does hereby constitute and
appoint Steven M. Shindler, Thomas D. Hickey, Gary D. Begeman and Thomas J.
Sidman, and each of them, each with full power to act without the other and with
full power of substitution and resubstitution, as attorneys or attorney to sign
and file in his or her name, place and stead, in any and all capacities, such
Registration Statement, any and all amendments and exhibits thereto, and any and
all other documents to be filed with the Securities and Exchange Commission
pertaining to or relating to such Registration Statement, or any other document
with any state securities commission or other regulatory authority with respect
to the securities covered by such Registration Statement, with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done, hereby ratifying and approving the acts of said attorneys
and each of them and any substitute or substitutes.
December 17, 1997
/s/Timothy Donahue
Timothy Donahue
President and Chief Operating
Officer and Director
<PAGE>
POWER OF ATTORNEY
NEXTEL COMMUNICATIONS, INC.
The undersigned, a director and/or officer of Nextel Communications, Inc.,
a Delaware corporation (the "Company"), which Company intends to file with the
Securities and Exchange Commission under the provisions of the Securities Act of
1933 a Registration Statement on Form S-8 or other appropriate form in
connection with unsecured contributions to the Company to be paid in accordance
with the Company's Cash Compensation Deferral Plan does hereby constitute and
appoint Steven M. Shindler, Thomas D. Hickey, Gary D. Begeman and Thomas J.
Sidman, and each of them, each with full power to act without the other and with
full power of substitution and resubstitution, as attorneys or attorney to sign
and file in his or her name, place and stead, in any and all capacities, such
Registration Statement, any and all amendments and exhibits thereto, and any and
all other documents to be filed with the Securities and Exchange Commission
pertaining to or relating to such Registration Statement, or any other document
with any state securities commission or other regulatory authority with respect
to the securities covered by such Registration Statement, with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done, hereby ratifying and approving the acts of said attorneys
and each of them and any substitute or substitutes.
December 17, 1997
/s/Frank M. Drendel
Frank M. Drendel
Director
<PAGE>
POWER OF ATTORNEY
NEXTEL COMMUNICATIONS, INC.
The undersigned, a director and/or officer of Nextel Communications, Inc.,
a Delaware corporation (the "Company"), which Company intends to file with the
Securities and Exchange Commission under the provisions of the Securities Act of
1933 a Registration Statement on Form S-8 or other appropriate form in
connection with unsecured contributions to the Company to be paid in accordance
with the Company's Cash Compensation Deferral Plan does hereby constitute and
appoint Steven M. Shindler, Thomas D. Hickey, Gary D. Begeman and Thomas J.
Sidman, and each of them, each with full power to act without the other and with
full power of substitution and resubstitution, as attorneys or attorney to sign
and file in his or her name, place and stead, in any and all capacities, such
Registration Statement, any and all amendments and exhibits thereto, and any and
all other documents to be filed with the Securities and Exchange Commission
pertaining to or relating to such Registration Statement, or any other document
with any state securities commission or other regulatory authority with respect
to the securities covered by such Registration Statement, with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done, hereby ratifying and approving the acts of said attorneys
and each of them and any substitute or substitutes.
December 17, 1997
/s/Keisuke Nakasaki
Keisuke Nakasaki
Director
<PAGE>
POWER OF ATTORNEY
NEXTEL COMMUNICATIONS, INC.
The undersigned, a director and/or officer of Nextel Communications, Inc.,
a Delaware corporation (the "Company"), which Company intends to file with the
Securities and Exchange Commission under the provisions of the Securities Act of
1933 a Registration Statement on Form S-8 or other appropriate form in
connection with unsecured contributions to the Company to be paid in accordance
with the Company's Cash Compensation Deferral Plan does hereby constitute and
appoint Steven M. Shindler, Thomas D. Hickey, Gary D. Begeman and Thomas J.
Sidman, and each of them, each with full power to act without the other and with
full power of substitution and resubstitution, as attorneys or attorney to sign
and file in his or her name, place and stead, in any and all capacities, such
Registration Statement, any and all amendments and exhibits thereto, and any and
all other documents to be filed with the Securities and Exchange Commission
pertaining to or relating to such Registration Statement, or any other document
with any state securities commission or other regulatory authority with respect
to the securities covered by such Registration Statement, with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done, hereby ratifying and approving the acts of said attorneys
and each of them and any substitute or substitutes.
December 17, 1997
/s/Masaaki Torimoto
Masaaki Torimoto
Director
<PAGE>
POWER OF ATTORNEY
NEXTEL COMMUNICATIONS, INC.
The undersigned, a director and/or officer of Nextel Communications, Inc.,
a Delaware corporation (the "Company"), which Company intends to file with the
Securities and Exchange Commission under the provisions of the Securities Act of
1933 a Registration Statement on Form S-8 or other appropriate form in
connection with unsecured contributions to the Company to be paid in accordance
with the Company's Cash Compensation Deferral Plan does hereby constitute and
appoint Steven M. Shindler, Thomas D. Hickey, Gary D. Begeman and Thomas J.
Sidman, and each of them, each with full power to act without the other and with
full power of substitution and resubstitution, as attorneys or attorney to sign
and file in his or her name, place and stead, in any and all capacities, such
Registration Statement, any and all amendments and exhibits thereto, and any and
all other documents to be filed with the Securities and Exchange Commission
pertaining to or relating to such Registration Statement, or any other document
with any state securities commission or other regulatory authority with respect
to the securities covered by such Registration Statement, with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done, hereby ratifying and approving the acts of said attorneys
and each of them and any substitute or substitutes.
December 17, 1997
/s/Dennis Weibling
Dennis Weibling
Director
<PAGE>
POWER OF ATTORNEY
NEXTEL COMMUNICATIONS, INC.
The undersigned, a director and/or officer of Nextel Communications, Inc.,
a Delaware corporation (the "Company"), which Company intends to file with the
Securities and Exchange Commission under the provisions of the Securities Act of
1933 a Registration Statement on Form S-8 or other appropriate form in
connection with unsecured contributions to the Company to be paid in accordance
with the Company's Cash Compensation Deferral Plan does hereby constitute and
appoint Steven M. Shindler, Thomas D. Hickey, Gary D. Begeman and Thomas J.
Sidman, and each of them, each with full power to act without the other and with
full power of substitution and resubstitution, as attorneys or attorney to sign
and file in his or her name, place and stead, in any and all capacities, such
Registration Statement, any and all amendments and exhibits thereto, and any and
all other documents to be filed with the Securities and Exchange Commission
pertaining to or relating to such Registration Statement, or any other document
with any state securities commission or other regulatory authority with respect
to the securities covered by such Registration Statement, with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done, hereby ratifying and approving the acts of said attorneys
and each of them and any substitute or substitutes.
December 17, 1997
/s/William R. Conway, Jr.
William E. Conway, Jr.
Director
