<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------------
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILES
PURSUANT TO 13d-1(a) AND AMENDMENTS HERETO
FILED PURSUANT TO 13d-2(a)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
NEXTEL COMMUNICATIONS, INC.
------------------------------
(Name of Issuer)
Class A Common Stock
---------------------------
(Title of Class of Securities)
65332V 10 3
---------------------------
(CUSIP Number)
Bruce R. Lederman
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
(213) 485-1234
----------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 3, 1997
--------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is subject of this Schedule 13D, and is filing this
statement because of Rule 13d-1(b)(3) or (4), check the following box: [ ]
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(continued on following pages)
<PAGE> 2
SCHEDULE 13D
CUSIP No. 65332V 10 3 PAGE 2
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
Wendy P. McCaw
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
14,824,937 shares
NUMBER OF ----------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 0
OWNED BY ----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 14,824,937 shares
PERSON ----------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,824,937 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [X]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.04%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
<PAGE> 3
ITEM 1 SECURITY AND ISSUER.
This Amendment No. 1 to Schedule 13D relates to the Class A Common
Stock, par value $.001 per share ("Nextel Common Stock") of Nextel
Communications, Inc., a Delaware corporation ("Nextel"). The principal executive
offices of Nextel are located at 1505 Farm Credit Drive, McLean, Virginia 22102.
This amended statement amends the statement filed on October 20, 1997.
ITEM 2 IDENTITY AND BACKGROUND.
(a) This statement is being filed by Wendy P. McCaw (the "Reporting
Person").
(b) The address of the Reporting Person is c/o Lasher Holzapfel Sperry &
Ebberson, PLLC; 2600 Two Union Square; 601 Union Street; Seattle, WA 98101-4000;
Attn: Earl P. Lasher, III, Esq.
(c) The Reporting Person is a private investor.
(d) The Reporting Person has not, during the last five years, been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) The Reporting Person has not, during the last five years, been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f) The Reporting Person is a citizen of the United States of America.
ITEM 3 SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The Reporting Person acquired the securities which are the subject of
this statement pursuant to the Nextel Securities Distribution Agreement by and
among Craig O. McCaw, the Reporting Person, Digital Radio, L.L.C. ("Digital
Radio"), and Eagle River Investments, L.L.C. ("Eagle River"), dated as of
November 3, 1997 (the "Nextel Securities Distribution Agreement"). The Nextel
Securities Distribution Agreement supersedes an earlier agreement between Craig
O. McCaw and the Reporting Person relating to the Nextel Common Stock, filed as
an exhibit to the initial statement on Schedule 13D filed on October 20, 1997.
ITEM 4 PURPOSE OF TRANSACTION.
The Reporting Person acquired the Nextel Common Stock primarily for
investment in connection with her marital settlement, but anticipates making
sales of such stock from time to time as described below.
The Nextel Securities Distribution Agreement also provides that none of
Craig O. McCaw, Digital Radio, Eagle River or Craig O. McCaw's other affiliates
(other than Nextel) owning shares of capital stock of Nextel may sell, assign,
or otherwise transfer in any transaction or series of related transactions (a
"Sale") either (i) fifty percent or more of the shares of capital stock of
Nextel (the "Stock") held by them at the time of such Sale or (ii) that number
of shares of Stock that results in a termination or reconstitution of the
Operations Committee of Nextel by the Board of Directors of Nextel without
triggering certain tag-along sale rights of the Reporting Person. Upon receipt
of notice of any Sale, the Reporting Person, on her own behalf and on behalf of
her affiliates owning shares of Stock, shall have the right to participate on a
pro rata basis in such Sale upon the same terms and conditions.
The Reporting Person intends to review her investment in Nextel from
time to time and, depending upon the price and availability of Nextel Common
Stock, subsequent developments affecting Nextel, Nextel's business and
prospects, other investment and business opportunities available to the
<PAGE> 4
Reporting Person, general stock market and economic conditions, tax
considerations and other factors deemed relevant, may decide to increase or
decrease the size of her investment in Nextel.
Except as described herein and in Item 6 below, the Reporting Person has
no present plan or proposal which relates to, or could result in, any of the
events referred to in paragraphs (a) through (j), inclusive, of Item 4 of
Schedule 13D. However, subject to the Reporting Person's obligations under the
Nextel Securities Distribution Agreement, the Reporting Person will continue to
review the business of Nextel and, depending upon one or more of the factors
referred to above, may in the future propose that Nextel take one or more of
such actions.
ITEM 5 INTEREST IN SECURITIES OF THE ISSUER.
(a) and (b) Based upon an assumed 240,443,604 shares of Nextel Common
Stock outstanding (excluding treasury shares), the aggregate number of shares of
Nextel Common Stock beneficially owned by the Reporting Person is as follows:
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES PERCENTAGE
- ---- ---------------- ----------
<S> <C> <C>
Reporting Person ............. 14,824,937(1) 6.04%
7,619,677(2)
---------- ----
Total ........................ 22,444,614 8.87%
</TABLE>
- ----------
(1) Includes (A) 9,907,659 shares of Nextel Common Stock owned by the Reporting
Person and (B) the Reporting Person's right to acquire an aggregate of
4,917,278 shares of Nextel Common Stock upon the complete exercise of
options to purchase Nextel Common Stock exercisable within 60 days hereof.
(2) Pursuant to Section 9 of the Nextel Securities Distribution Agreement, if
Craig O. McCaw, Eagle River and the other members of Digital Radio
determine not to exercise all or any portion of certain specified Nextel
options beneficially owned by them, the Reporting Person shall have the
right to exercise such options on her own behalf. Of such options,
7,619,677 are exercisable within 60 days hereof. Pursuant to Rule
13-3(d)(1)(i), the Reporting Person may have the right to acquire such
options and therefore may be deemed to be the beneficial owner of the
7,619,677 shares of Nextel Common Stock issuable upon exercise thereof.
The Reporting Person has sole dispositive and voting power with
respect to the securities listed in footnote (1) above beneficially owned by
the Reporting Person. The Reporting Person disclaims beneficial ownership of
the securities held by Digital Radio described in footnote (2) above.
(c) None.
(d) None.
(e) N/A
ITEM 6 CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
On November 3, 1997, the Reporting Person, Craig O. McCaw, Digital
Radio, and Eagle River entered into the Nextel Securities Distribution
Agreement, whereby the Reporting Person acquired the securities which are the
subject of this statement. The Nextel Securities Distribution Agreement is filed
as Exhibit 2 under Item 7 hereof and is incorporated by reference herein in its
entirety. The Nextel Securities Distribution Agreement supersedes an earlier
agreement between Craig O. McCaw and the Reporting Person relating to the Nextel
Common Stock, filed as an exhibit to the initial statement on Schedule 13D filed
on October 20, 1997.
Pursuant to the Nextel Securities Distribution Agreement, Craig O.
McCaw loaned to Digital Radio $122,678,221 evidenced by a Demand Promissory
Note dated November 3, 1997 (the "Note") from Digital Radio to Mr. McCaw.
Digital Radio used or will use such funds to repay $122,678,221 of an existing
loan encumbering, among other things, the shares of Nextel Common Stock
distributed to the Reporting Person (the "Shares"). The Note is payable upon
demand, or if no demand has been made prior thereto, on December 1, 1997. The
Note is secured by a pledge of the Shares pursuant to a Pledge Agreement dated
as of November 3, 1997 between Digital Radio and Craig O. McCaw (the "Pledge
Agreement"). Pursuant to a Loan Assumption Agreement dated November 3, 1997
between Eagle River and Craig O. McCaw, Eagle River assumed all of Digital
Radio's rights and obligations under the Note and the Pledge Agreement. The
Reporting Person subsequently assumed all of Eagle River's rights and
obligations under the Note and the Pledge Agreement pursuant to a Loan
Assumption Agreement dated November 3, 1997 between the Reporting Person and
Craig O. McCaw. Following an uncured Event of Default (as defined in the Pledge
Agreement), Mr. McCaw may exercise his remedies with respect to the pledged
Shares, including the right to acquire, sell and/or vote all of such Shares.
Except pursuant to the agreements described above, the Reporting Person
has no contracts, arrangements, understandings or relationships (legal or
otherwise) with any person with respect to any securities of Nextel, including
but not limited to any contracts, arrangements,
<PAGE> 5
understandings or relationships concerning the transfer or voting of such
securities, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or losses, or the giving or
withholding of proxies.
ITEM 7 MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 2. Nextel Securities Distribution Agreement by and among
Craig O. McCaw, the Reporting Person, Digital Radio,
L.L.C., and Eagle River Investments, L.L.C., dated as of
November 3, 1997.
<PAGE> 6
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: November 3, 1997
/s/ WENDY P. MCCAW
--------------------------------
Wendy P. McCaw
<PAGE> 7
EXHIBIT INDEX
Exhibit 2. Nextel Securities Distribution Agreement by and among
Craig O. McCaw, the Reporting Person, Digital Radio,
L.L.C., and Eagle River Investments, L.L.C., dated as of
November 3, 1997
<PAGE> 1
NEXTEL SECURITIES DISTRIBUTION AGREEMENT
This Nextel Securities Distribution Agreement (this "Agreement")
is entered into by and among Wendy P. McCaw ("WPM"), Craig O. McCaw ("COM"),
Eagle River Investments, LLC, a Washington limited liability company ("Eagle
River"), and Digital Radio, LLC, a Washington limited liability company
("Digital Radio"), as of November 3, 1997 (the "Effective Date"). WPM, COM,
Eagle River and Digital Radio are collectively referred to in this Agreement as
the "Parties" and each may be referred to as a "Party."
For the purposes of this Agreement, "Affiliate" shall mean an
individual, corporation, partnership, limited liability company, association,
trust or other entity ("Person"), whether in existence on the Effective Date or
created after the Effective Date, that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the Person specified.
RECITALS
WHEREAS, pursuant to the Property Settlement Agreement between
COM and WPM dated as of November 3, 1997 (the "PSA"), in partial liquidation of
WPM's ownership interest in Eagle River, COM and WPM desire to effect the
allocation and distribution of certain securities of Nextel Communications,
Inc., a Delaware corporation (the "Company") to WPM as her separate property;
WHEREAS, the distribution of such securities of the Company is
pursuant to an agreed upon allocation of assets reflecting WPM's ownership
interest in Eagle River and is undertaken in connection with the dissolution of
the marriage between COM and WPM;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the PSA and for other
consideration, the receipt and adequacy of which is hereby acknowledged, the
Parties agree as follows:
1. DISTRIBUTION OF SHARES.
1.1 Immediately upon the execution by WPM of the Loan Assumption
Agreement described in Section 1.3, Digital Radio shall
distribute to Eagle River and Eagle River shall record a
distribution to WPM of Nine Million Nine Hundred and Seven
Thousand, Six Hundred Fifty Nine (9,907,659) issued and
outstanding shares of Class A Voting Common Stock of the Company
(the "Shares") free and clear of all liens, claims, options,
charges, pledges and encumbrances other than those assumed by WPM
as provided in Paragraph 1.3 of this Agreement. The Shares shall
be vested in WPM's name. Digital Radio and Eagle River shall pay
any documentary, stamp or other similar types of taxes, if any,
payable with respect of the distribution of the Shares to WPM.
Within one (1) business day after the later of WPM's execution of
the Loan Assumption Agreement described in Section 1.3 or the
execution of this Agreement, Digital Radio and Eagle River shall
give instructions to the Nextel transfer agent and Chase
Manhattan Bank to deliver the original stock certificates, duly
endorsed, to WPM.
1
<PAGE> 2
1.2 WPM, COM, Eagle River and Digital Radio acknowledge and agree
that the number of Shares set forth in Section 1.1 was calculated
after giving effect to the Class B membership interests in Eagle
River as of September 19, 1997. In the event any such interests
are forfeited and not replaced in accordance with the terms of
the "Eagle River Minority Interest Agreement" among WPM, COM and
Eagle River of even date herewith, the number of Shares shall be
increased pursuant to the Eagle River Minority Interest
Agreement.
1.3 In connection with the distribution of the Shares hereunder, COM
has loaned or will loan to Digital Radio one hundred and
twenty-two million six hundred seventy-eight thousand two hundred
and twenty-one dollars ($122,678,221) (the "Loan") pursuant to a
Demand Promissory Note of Digital Radio to COM (the "Digital
Radio Note") which has been or will be secured by a pledge of the
Shares. Eagle River and WPM, have guaranteed or will guarantee
the repayment of the indebtedness under the Digital Radio Note
pursuant to Continuing Guarantees of the Loan. Digital Radio has
or will use the proceeds of the Loan to repay one hundred
twenty-two million six hundred seventy-eight thousand two hundred
and twenty-one dollars ($122,678,221) under the First Amended and
Restated Multibank Credit Agreement dated July 28, 1997 among
Digital Radio, the Banks signatory thereto and Chase Manhattan
Bank, as agent (the "Digital Radio Multibank Credit Agreement"),
and has caused or will cause the Shares to be released as
collateral under the Digital Radio Multibank Credit Agreement and
all related pledge and collateral-related agreements.
Concurrently therewith, Eagle River shall assume Digital Radio's
obligations and rights under the Digital Radio Note pursuant to a
Loan Assumption Agreement in the form of Exhibit A(1) attached
hereto and WPM shall assume Eagle River's obligations and rights
under the Digital Radio Note pursuant to a Loan Assumption
Agreement in the form of Exhibit A(2) attached hereto.
2. TRANSFER OF BENEFICIAL INTEREST IN THE OPTIONS. Digital Radio hereby
distributes to Eagle River and Eagle River hereby distributes to WPM as her
separate property a beneficial interest in the following options to purchase
shares of Class A Voting Common Stock of the Company (collectively, the
"Options", and together with the Shares, the "Securities"):
(1) Options for 452,207 shares of Class A Voting Common Stock of
the Company, exercisable between July 28, 1999 and August 27, 1999, acquired by
Digital Radio from Motorola, Inc.;
(2) Options for 3,391,553 shares of Class A Voting Common Stock
of the Company, exercisable through July 28, 1999, acquired by Digital Radio
from the Company;
(3) Options for 1,116,990 shares of Class A Voting Common Stock
of the Company, exercisable between July 28, 2001 and August 27, 2001, acquired
by Digital Radio from Motorola, Inc.; and
(4) Options for 1,525,725 shares of Class A Voting Common Stock
of the Company, exercisable through July 28, 2001, acquired by Digital Radio
from the Company.
As beneficial owner of the Options, WPM shall, in her sole
discretion, have the right to cause Digital Radio to exercise (on behalf of and
for the benefit of WPM) any or all rights of the optionee with respect to the
Options.
3. EFFECTIVENESS. This Agreement shall become effective, and the
distribution of the Securities or the beneficial interests therein shall be
deemed to have been completed, as of the Effective Date.
2
<PAGE> 3
4. REPRESENTATIONS AND WARRANTIES OF DIGITAL RADIO, EAGLE RIVER AND COM.
Each of Digital Radio, Eagle River and COM represents and warrants to WPM as of
the Effective Date that:
4.1 Organization. Eagle River and Digital Radio are limited liability
companies duly organized, validly existing and in good standing
under the laws of the State of Washington.
4.2 Ownership of Securities, Encumbrances.
4.2.1 Digital Radio is the owner beneficially and of record of
all of the Shares, free and clear of any liens,
encumbrances, pledges, security interests, restrictions
(other than restrictions arising under applicable law,
including securities laws and SEC regulations), prior
assignments and claims of any kind or nature whatsoever,
except pursuant to the existing agreements and rights of
third parties identified on Exhibit B hereto. Digital
Radio is the owner beneficially and of record of all of
the Options, free and clear of any liens, encumbrances,
pledges, security interests, restrictions (other than
restrictions arising under applicable law, including
securities laws and SEC regulations), prior assignments
and claims of any kind or nature whatsoever, except
pursuant to the existing agreements and rights of third
parties identified on Exhibit B hereto. Upon consummation
of the distribution contemplated by this Agreement, WPM
shall be the owner, beneficially and of record, of all of
the Shares, and the beneficial owner of all of the
Options, free and clear of any liens, encumbrances,
pledges, security interests, restrictions (other than
restrictions arising under applicable law, including
securities laws and SEC regulations), prior assignments
and claims of any kind or nature whatsoever, except as
assumed by WPM as provided in Section 1.3 of this
Agreement or as otherwise hereafter created by WPM or
pursuant to the existing agreements and rights of third
parties identified on Exhibit B to the extent such rights
under Exhibit B are not inconsistent with the provisions
of Sections 7 through 9 hereof which shall supersede such
third-party rights. Each Party will its use best efforts
to minimize the effect of the limitations and restrictions
imposed by the agreements set forth on Exhibit B.
4.2.2 All of the Shares have been duly and validly authorized
and issued, are fully paid and nonassessable, and were
issued in full compliance with all applicable laws, rules,
regulations and ordinances. All of the Options have been
duly and validly authorized and issued, and were issued in
full compliance with all applicable laws, rules,
regulations and ordinances.
4.3 Power and Authority. Each of Digital Radio, Eagle River and COM
has all required power and authority and have taken all actions
necessary to enter into this Agreement, to deliver this Agreement
and to perform their respective obligations hereunder and to
consummate all other transactions contemplated hereby. The
execution, delivery, and performance of this Agreement has been
duly authorized by Eagle River and Digital Radio. This Agreement
has been duly executed by Digital Radio, Eagle River and COM and
delivered to the other Parties hereto and constitutes the legal,
valid, and binding obligation of each of Digital Radio, Eagle
River, and COM, enforceable in accordance with its terms.
3
<PAGE> 4
4.4 No Conflicts; Consents. The execution, delivery and performance
of this Agreement by Digital Radio, Eagle River and COM and the
consummation of the transactions contemplated hereby will not (a)
conflict with or violate any provision of the organizational
documents of Digital Radio or Eagle River , (b) violate the
provisions of, or constitute a breach or default (whether upon
lapse of time and/or the occurrence of any act or event, or
otherwise) under, any contract or agreement to which Digital
Radio, Eagle River or COM is a party or (c) violate any law,
statute or other law, rule, regulation, interpretation, award,
decree, injunction, judgment, order, ruling, assessment or writ
by or of any court, arbitrator or governmental or regulatory
entity. The execution, delivery, and performance of this
Agreement by Digital Radio, Eagle River and COM and the
consummation of the transactions contemplated hereby do not
require Digital Radio, Eagle River or COM to obtain any consent,
approval, or action of, or make any filing with or give notice
to, any corporation, partnership, person, firm or other entity or
any public, governmental or judicial authority, except as have
been made or obtained and except for required SEC filings.
4.5 Litigation. None of Digital Radio, Eagle River or COM is a party
to any litigation, action, suit, proceeding or investigation
presently pending or threatened before any court or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, that would restrict or prohibit the
consummation of the transactions contemplated by this Agreement.
4.6 Insolvency Proceedings. None of Digital Radio, Eagle River or COM
is the subject of any pending insolvency proceedings of any
character. None of Digital Radio, Eagle River or COM has made an
assignment for the benefit of creditors or taken any action with
a view to the institution of any such insolvency proceedings.
5. WPM'S REPRESENTATIONS AND WARRANTIES. WPM represents and warrants to
Digital Radio, Eagle River and COM as of the Effective Date that:
5.1 Power and Authority. WPM has all required power and authority and
has taken all actions necessary to enter into this Agreement, to
deliver this Agreement and to perform her obligations hereunder
and to consummate all transactions contemplated hereby. The
execution, delivery, and performance of this Agreement has been
duly authorized by WPM. This Agreement has been duly executed by
WPM and delivered to the other parties hereto and constitutes the
legal, valid, and binding obligation of WPM, enforceable in
accordance with its terms.
5.2 No Conflicts; Consents. The execution, delivery and performance
of this Agreement by WPM and the consummation of the transactions
contemplated hereby will not (a) violate the provisions of, or
constitute a breach or default (whether upon lapse of time and/or
the occurrence of any act or event, or otherwise) under, any
contract or agreement to which WPM is a party or (b) violate any
law, statute or other law, rule, regulation, interpretation,
award, decree, injunction, judgment, order, ruling, assessment or
writ by or of any court, arbitrator or governmental or regulatory
entity. The execution, delivery, and performance of this
Agreement by WPM and the consummation of the transactions
contemplated hereby do not require WPM to obtain any consent,
approval, or action of, or make any filing with or give notice
to, any corporation, partnership, person, firm or other entity or
any public, governmental or judicial authority, except as have
been made or obtained and except for required SEC filings.
4
<PAGE> 5
5.3 Litigation. WPM is not a party to any litigation, action, suit,
proceeding or investigation presently pending or threatened
before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, that
would restrict or prohibit the consummation of the transactions
contemplated by this Agreement.
5.4 Investment Intent. WPM is acquiring the Securities for investment
purposes for her own account and without a view to distribution
or resale thereof.
5.5 Compliance with Laws and Regulations. WPM acknowledges that
dispositions of the Shares, and any shares acquired upon exercise
of the Options (the "Option Shares"), subsequent to the Effective
Date will be subject to compliance with applicable laws,
including applicable securities laws and SEC regulations.
5.6 Insolvency Proceedings. WPM is not the subject of any pending
insolvency proceedings of any character. WPM has not made an
assignment for the benefit of creditors or taken any action with
a view to the institution of any such insolvency proceedings.
6. INDEMNIFICATION.
6.1 Indemnification. COM (on behalf of himself, Digital Radio and
Eagle River) and WPM, but not Digital Radio or Eagle River, shall
indemnify each other and their Affiliates and representatives
from and against any and all costs, losses, taxes, liabilities,
obligations, damages, lawsuits, deficiencies, claims, demands and
expenses (whether or not arising out of third-party claims),
including, without limitation, interest, penalties, attorneys'
fees and all amounts paid in investigation, defense or settlement
of any of the foregoing (collectively, "Damages") incurred or
threatened in connection with, arising out of, resulting from or
incident to any breach of any representation, warranty, covenant,
agreement or obligation made by him/it/her in or pursuant to this
Agreement.
6.2 Indemnification Procedures. In the case of any claim asserted by
a third party against a party entitled to indemnification under
this Agreement (the "Indemnified Party"), notice shall be given
by the Indemnified Party to the party required to provide
indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and the Indemnified Party shall permit
the Indemnifying Party (at the expense of such Indemnifying
Party) to assume the defense of any claim or any litigation
resulting therefrom, provided that the omission by any
Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its indemnification obligation
under this Agreement except to the extent that such omission
results in a failure of actual notice to the Indemnifying Party
and such Indemnifying Party is materially damaged as a result of
such failure to give notice; and further provided that, unless
the Indemnifying Party agrees to provide both defense and
indemnity, (a) the counsel for the Indemnifying Party who shall
conduct the defense of such claim or litigation shall be
reasonably satisfactory to the Indemnified Party and (b) the
Indemnified Party may participate in such defense at the
Indemnified Party's expense. Except with the prior written
consent of the Indemnified Party, no Indemnifying Party, in the
defense of any such claim or litigation, shall consent to entry
of any judgment or order, interim or otherwise, or enter into any
settlement that provides
5
<PAGE> 6
for injunctive or other nonmonetary relief affecting the
Indemnified Party or that does not include as an unconditional
term thereof the giving by each claimant or plaintiff to such
Indemnified Party of a release from all liability with respect to
such claim or litigation. In any event, the Indemnifying Party
and the Indemnified Party shall cooperate in the defense of any
claim or litigation subject to this Section 6.2 and the records
of each shall be available to the other with respect to such
defense.
7. TAG ALONG RIGHTS.
None of COM, Digital Radio, Eagle River or any of COM's other Affiliates
(other than the Company) owning shares of capital stock of the Company
(collectively, the "COM Holders") may sell, assign, or otherwise transfer in any
transaction or series of related transactions (a "Sale")(i) fifty percent (50%)
or more of the shares of capital stock of the Company ("Stock") held by them at
the time of such Sale or (ii) that number of shares of Stock that results in a
termination or reconstitution of the Operations Committee of the Company by the
Board of Directors of the Company (either (i) or (ii) being a "Sale of Control")
without triggering application of this Section 7.
If any or all of the COM Holders (the "Selling Shareholders") intend to
effect a Sale of Control, COM shall give written notice (the "Seller's Notice")
to WPM stating that the Selling Shareholders intend to effect such a Sale of
Control, identifying the party who made the subject offer (the "Proposed
Transferee"), specifying the number of shares of Stock proposed to be sold,
transferred or otherwise affected under such offer (the "Sale Shares"), and
specifying the per share price and any other consideration that the Proposed
Transferee has offered to pay for the Sale Shares and all other terms of such
offer (the "Sale Price and Terms"). A written copy of the offer shall be
attached to the Seller's Notice.
WPM, on her own behalf and on behalf of her Affiliates owning shares of
capital stock of the Company (collectively, the "WPM Holders"), shall have the
right upon written notice by WPM to COM within ten (10) business days after
receiving the Seller's Notice, to participate on a pro rata basis in the Selling
Shareholders' Sale of Sale Shares at and upon the Sale Price and Terms. The
number of Sale Shares to be sold shall be allocated pro rata between the Selling
Shareholders and the participating WPM Holders based on the total number of
shares of Stock owned by the COM Holders and the total number of shares of Stock
held by all WPM Holders at the time of such Sale; provided, however, that WPM
may elect to have the participating WPM Holders sell all or any portion of the
WPM Holders' collective pro rata share of the Sale Shares.
The WPM Holders shall effectuate the sale or transfer by promptly
delivering to COM for transfer to the Proposed Transferee one or more
certificates, properly endorsed for transfer, which represent the number of
shares of Stock which the WPM Holders elect to sell or transfer.
The stock certificates that the participating WPM Holders deliver to COM
shall be transferred by the Selling Shareholders to the Proposed Transferee in
consummation of the Sale of the Sale Shares pursuant to the terms and conditions
specified in the Seller's Notice, and the Selling Shareholders shall promptly
thereafter remit to the participating WPM Holders that portion of the Sale
proceeds to which the participating WPM Holders are entitled by reason of their
participation in such Sale, without reduction or adjustment other than for
transaction costs ascertained on a pro rata basis.
The exercise or non-exercise of the rights of the WPM Holders hereunder
to participate in one or more Sales of Control made by the COM Holders shall not
adversely affect their rights to participate in subsequent Sales of Control by
the COM Holders.
6
<PAGE> 7
In the event any of the Selling Shareholders attempt to effect or engage
in a Sale of any shares of Stock of the Company in contravention of this Section
7, then, in addition to whatever other rights WPM Holders may have in law or in
equity, the WPM Holders shall have a put option against the Selling Shareholders
to sell that number of shares of Stock that is equal to their pro rata share of
the Sale Shares to the Selling Shareholders at and upon the Sale Price and Terms
in order to effect the intent of this Agreement as set forth in this Section 7.
8. PIGGY-BACK REGISTRATION RIGHTS.
Digital Radio and COM agree that WPM (on behalf of herself and her
Affiliates) shall have the right, with respect to the Shares and the Option
Shares, to participate in any or all registrations, on an equal priority
(including cutback restrictions) with Digital Radio with respect to the
registration rights of Digital Radio under the Registration Rights Agreement
between the Company and Digital Radio dated as of July 28, 1995. WPM shall have
the right to exercise such rights with respect to a particular registration of
the securities of the Company, regardless of whether Digital Radio exercises
such registration rights on behalf of itself with respect to such registration.
In addition, if COM, Digital Radio, Eagle River or any of COM's other Affiliates
have or obtain in the future any registration rights with respect to securities
of the Company, COM, Digital Radio and Eagle River shall cause WPM to be granted
or allow WPM to participate with respect to such registration rights with
respect to the Shares and the Option Shares to the extent that COM or any
Affiliate of COM has been granted such rights, which shall be pro rata based
upon the ratio of the number of Shares and Option Shares then held by WPM and
her Affiliates to the number of shares then held by COM and his Affiliates and
shall be equal in priority (including cutback restrictions) and equal in
frequency and number of registration opportunities to the registration rights
held by such other party.
9. OPTION EXERCISE AND INFORMATION RIGHTS.
9.1 Information and Exercise Rights. WPM shall, at her option, have
the right to receive the following information from COM and
Digital Radio beginning at the earliest of (a) sixty (60) days
prior to the deadline for exercise of any particular tranche of
Options, or (b) such earlier time as COM or Digital Radio reaches
a decision whether to exercise their options to acquire common
stock of the Company described on Exhibit C (the "Digital Radio
Options") or (c) such earlier time as COM or Digital Radio
directs the investigation of financing alternatives for the
exercise by COM or Digital Radio of the Digital Radio Options:
(i) whether COM or Digital Radio intends to exercise the Digital
Radio Options or has not yet made a decision (with COM or Digital
Radio being obligated thereafter to notify WPM if he or it
changes his or its decision); and (ii) all of the written
information available to COM and Digital Radio upon which he or
it has based any such decision (with COM or Digital Radio being
obligated to furnish all information he or it subsequently
receives upon which he or it bases a change in any such
decision). If Digital Radio or COM chooses not to exercise all or
any portion of the Digital Radio Options, then Digital Radio and
COM shall notify the members of Digital Radio (other than Eagle
River) and WPM as soon as reasonably possible for them to do so
and, in any event, they shall notify such members and WPM no
later than ten (10) days before the stated expiration date of
such Digital Radio Options of their irrevocable decision not to
exercise any or all of such Digital Radio Options. In such case,
the members of Digital Radio other than Eagle River shall have
two (2) days to exercise any such Digital Radio Options on their
own behalf and if such members do not exercise any of such
Digital Radio Options within such period, then WPM shall have the
right to exercise any such Digital Radio Options on her own
behalf free and clear of any claim of
7
<PAGE> 8
Digital Radio, COM or any Affiliate of COM to the shares
purchased and none of Digital Radio, COM or any Affiliate of COM
shall have any further right or interest in such Digital Radio
Options or any shares purchased upon their exercise.
9.2 Exercise of Options. The decision of whether and when to exercise
all or any portion of the Options shall be made solely by WPM,
and neither COM, COM's attorney-in-fact, Digital Radio nor any of
COM's Affiliates shall have any discretion as to whether and when
the Options shall be exercised, nor shall they have any
disclosure obligations or obligations to advise WPM regarding her
decision to exercise or the timing of such exercise, except as
provided in Section 9.1. If WPM decides not to exercise all or
any portion of such Options she will notify COM as soon as
reasonably possible for her to do so and, in any event, she will
notify COM no later than ten (10) days before the stated
expiration date of such Options of her irrevocable decision not
to exercise any or all of such Options (the "Rejected Options"),
and in such case, COM, or at his election Digital Radio, shall
have the right to exercise any such Rejected Options on his or
its own behalf free and clear of any claim of WPM to the shares
purchased and WPM will have no further right or interest in such
Rejected Options or portion thereof or any security purchased
upon their exercise. Upon receipt of written notice of WPM's
decision to exercise any Option, Digital Radio shall exercise
such Option on behalf of and for the benefit of WPM. WPM's
written notice of exercise shall be addressed and delivered to
Digital Radio's attorney-in-fact for purposes of exercising any
Option, who shall be C. James Judson (or his successor as may be
named by Digital Radio), 2300 Carillon Point, Kirkland,
Washington 98033 (or such other address as Digital Radio may from
time to time designate by written notice to WPM). In such notice
WPM shall state the option grant, the number of shares to be
purchased under said grant and the date of exercise. No later
than three (3) days prior to the time payment for exercise is due
from Digital Radio, WPM shall deliver to Digital Radio's
attorney-in-fact the full exercise price (and pro rata related
transaction costs) for such Options being exercised in cash,
certified check or cashier's check or by wire transfer; provided,
however, that COM and Digital Radio will, at WPM's request,
cooperate with WPM in enabling her to exercise the Options
concurrently with her obtaining financing or at the same time and
in the same way as COM or Digital Radio does, if either of such
entities or WPM is able to arrange financing that enables COM or
Digital Radio or WPM to exercise their or her options using funds
borrowed from a third party and secured in whole or in part by
the Company stock purchased upon such exercise. See also Section
9.5 hereto.
9.3 Exercise of Options in First and Second Tranches. If WPM elects
to exercise at least 1,130,518 of the Options described in
Subsection 2 of Section 2 (the "1999 Nextel Options"), then WPM
shall have the right to exercise all of the Options described in
Subsection 4 of Section 2 (the "2001 Nextel Options"). If WPM
elects to exercise less than 1,130,518 of the 1999 Nextel
Options, then WPM shall have the right to exercise only the
Nextel Exercise Percentage of the 2001 Nextel Options. In
addition, regardless of the number of Options described in
Subsection 1 of Section 2 (the "Motorola 1999 Options") exercised
by WPM, WPM shall have the right to exercise only the Motorola
Exercise Percentage (as defined below) of the Options described
in Subsection 3 of Section 2 (the "2001 Motorola Options"). For
purposes of this Section 9.3 (i) the Nextel Exercise Percentage
shall mean that percentage that is equal to the number of 1999
Nextel Options exercised by WPM divided by 1,130,518 and (ii) the
Motorola Exercise Percentage shall mean that percentage that is
equal to the number of 1999 Motorola Options exercised by WPM
divided by 452,207.
8
<PAGE> 9
9.4 Distribution of Option Shares. After exercise of the Options, WPM
shall own beneficially (and shall have the right to record
ownership of) the shares obtained as a result of such exercise
(the "Option Shares") and Digital Radio shall promptly distribute
to Eagle River, which shall promptly distribute to WPM, the
Option Shares, free and clear of all liens, claims, options,
charges, pledges and encumbrances (other than those created by
WPM). Digital Radio and Eagle River shall cause duly endorsed
stock powers transferring the Option Shares to be delivered to
WPM. Digital Radio and Eagle River shall pay any documentary,
stamp or other similar types of taxes, if any, payable with
respect to the distribution of such Option Shares to WPM.
9.5 Financing. If Digital Radio or any Affiliate of COM, in its sole
discretion, determines to utilize financing for the purpose of
paying the exercise price of any options to acquire common stock
of the Company and it determines, in its reasonable discretion,
that it is feasible to cause such financing or similar financing
to be extended to WPM for the purpose of exercising the Options,
then WPM shall have the right to utilize such financing for the
purpose of exercising the Options. Digital Radio and WPM shall
cooperate to obtain such financing for WPM. WPM shall be required
to adhere to procedural and substantive requirements with respect
to such financing, as determined by COM in his reasonable
discretion and the applicable financing entities. The Parties
will, at WPM's request, cooperate with WPM in enabling her to
arrange financing that enables her to exercise her Options using
funds borrowed from a third party and secured in whole or in part
by the Company stock purchased upon such exercise or that enables
her to concurrently exercise the Options, sell the shares so
obtained and make any applicable payments due to Digital, Eagle
River and/or the Company.
9.6. Taxes. Under current law, it is not anticipated that the exercise
of the Options and distribution of the Option Shares to WPM will
result in any taxes being incurred by Digital Radio. If, however,
Digital Radio or its members or members of its parent incur taxes
as a result of the exercise of the Options, the distribution of
the Option Shares to WPM or the sale of the Option Shares, then
WPM shall bear any such taxes incurred by Digital Radio or such
members when such taxes are due; provided, however, that prior to
such payment by WPM, Digital Radio and such members shall provide
WPM, upon request, with a calculation of such taxes and
supporting records and information relating to such tax
calculation. The Parties shall cooperate and shall take such
actions as are reasonably requested by WPM to minimize the tax
impact on WPM of the exercise of the Options and the distribution
of the Shares and the Option Shares.
10. MISCELLANEOUS.
10.1 Assignment. This Agreement shall be binding upon and shall inure
to the benefit of the Parties hereto and their respective
successors and assigns. No Party to this Agreement may assign
this Agreement without the prior written consent of the other
Parties hereto, except that both COM and WPM, both before and
after the Effective Date, may assign their rights and obligations
under this Agreement to any of their Affiliates; provided,
however, that in neither case does such an assignment relieve the
assigning Party of his or her obligations under this Agreement.
10.2 Specific Performance. The Parties recognize that in the event
that any Party defaults in the performance of its obligations
under this Agreement, monetary damages alone will
9
<PAGE> 10
not be adequate. Therefore, in addition to bringing an action for
breach of contract and/or indemnification under this Agreement,
any Party shall be entitled to obtain specific performance of the
terms of this Agreement. In any action to enforce specifically
the performance of this Agreement, the defending Party shall
waive the defense that there is an adequate remedy at law or
equity and agree that specific performance is an appropriate
remedy for breach or default except where specific performance is
not feasible.
10.3 Further Assurances. Each of the Parties hereto shall cooperate,
shall take such further action and shall execute and deliver such
further documents as may be reasonably requested by the other
Parties in order to carry out the provisions and purposes of this
Agreement. In particular, Digital Radio and Eagle River shall
cause duly endorsed stock powers transferring the Shares to be
delivered to WPM or her representatives as set forth herein.
10.4 Organizational Documents. COM, Eagle River, and COM's Affiliates
agree to use their best efforts to cause the Company to act, in
accordance with its organizational documents in all material
respects. COM, Eagle River, and COM's other Affiliates shall vote
all the shares owned or held of record by them at any regular or
special meeting of stockholders of the Company or in any written
consent executed in lieu of such a meeting of stockholders, and
shall take all action necessary, to ensure (to the extent within
the Parties' collective control) that the organizational
documents of the Company do not, at any time, conflict with the
provisions of this Agreement.
10.5 Governing Law. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State
of Washington.
10.6 Amendment; Waiver. Neither this Agreement nor any provision
hereof may be amended, waived, discharged or terminated, except
by a written instrument signed by each of the Parties sought to
be bound thereby that specifically references this Agreement and
any such amendment, waiver, discharge or termination.
10.7 Severability. To the extent any provision of this Agreement shall
be invalid or unenforceable, it shall be considered deleted from
this Agreement and the remaining provisions of this Agreement
shall be unaffected and shall continue in full force and effect.
10.8 Agreement Effective after Death. Should the death of either COM
or WPM occur, all provisions of this Agreement shall nonetheless
be valid and shall be enforceable by or against the estate and
heirs of COM and WPM insofar as applicable law permits.
10.9 Certain Rules of Construction. Any ambiguities shall be resolved
without reference to which party may have drafted this Agreement.
All Article or Section titles or captions contained in this
Agreement are for convenience only, and they shall not be deemed
part of this Agreement and in no way define, limit, extend or
describe the scope or limit of any provisions hereof. Unless the
context otherwise requires: (i) a term has the meaning assigned
to it; (ii) "or" is not exclusive; (iii) words in the singular
include the plural, and words in the plural include the singular;
(iv) provisions apply to successive events and transactions; (v)
"herein," "hereof" and other words of similar import refer to
this Agreement as a whole and not to any particular Article,
Section or other subdivision; (vi) all references to "Articles"
or "Sections" refer to Articles and Sections of this Agreement
10
<PAGE> 11
unless otherwise specifically indicated; and (vii) any pronoun
used in this Agreement shall include the corresponding masculine,
feminine and neuter forms.
10.10 Notices. All notices and other communications required or
permitted to be given hereunder or which are given with respect
to this Agreement shall be in writing and shall be personally
served or mailed, registered or certified, return receipt
requested, postage prepaid (or by a substantially similar
method), or delivered by a reputable overnight courier service
with charges prepaid, or transmitted by hand delivery, telegram,
telex or facsimile, addressed as set forth on Exhibit D hereto,
or such other address as such party shall have specified most
recently by written notice. Notice shall be deemed given or
delivered on the date of service or transmission if personally
served or transmitted by hand delivery, telegram, telex or
facsimile. Notice otherwise sent as provided herein shall be
deemed given or delivered on the fifth business day following the
date mailed or on the next business day following delivery of
such notice to a reputable overnight courier service.
10.11 Attorneys' Fees. If any legal action or other proceeding is
commenced that is related to this Agreement, the prevailing Party
shall be entitled to receive from the other party or parties its
reasonable legal fees and expenses incurred in the preparation
of, conduct of or appeal or enforcement of judgment from the
proceeding.
10.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered, shall
be deemed to be an original and all of which, taken together,
shall constitute one and the same Agreement, and may be executed
by facsimile.
[signature page follows]
11
<PAGE> 12
IN WITNESS WHEREOF, the Parties have executed this Agreement as
of the date first above written.
WENDY P. McCAW CRAIG O. McCAW
/s/ Wendy P. McCaw /s/ Craig O. McCaw
- ------------------------------------ ------------------------------------
EAGLE RIVER INVESTMENTS, LLC DIGITAL RADIO, LLC
By: EAGLE RIVER INVESTMENTS, LLC
By: /s/ Craig O. McCaw Its: Managing Member
---------------------------------
Name: Craig O. McCaw
Its: Managing Member
By: /s/ Craig O. McCaw
---------------------------------
Name: Craig O. McCaw
Its: Managing Member
12
<PAGE> 13
EXHIBIT A(1)
FORM OF LOAN ASSUMPTION AGREEMENT BETWEEN EAGLE RIVER AND COM
SEE ATTACHED.
13
<PAGE> 14
LOAN ASSUMPTION AGREEMENT
EAGLE RIVER INVESTMENTS, L.L.C. AND CRAIG O. MCCAW
This Loan Assumption Agreement ("Agreement") is entered into by and
between Eagle River, Investments, L.L.C. ("Eagle River") and Craig O. McCaw
("COM") (collectively the "Parties" and each as "Party") as of November 3, 1997,
("Effective Date").
Recitals
WHEREAS, pursuant to an agreement dated as of November 3, 1997 (the
"Nextel Securities Distribution Agreement") between, among others, the Parties,
Wendy P. McCaw ("WPM") and Digital Radio, L.L.C. (Digital Radio"), COM loaned to
Digital Radio $122,678,221 (the "Loan") pursuant to a Demand Promissory Note of
Digital Radio (the "Digital Radio Note");
WHEREAS, the Digital Radio Note was secured by a pledge by Digital Radio
of the "Shares" (as defined below) pursuant to a Pledge Agreement (the "Pledge
Agreement") between Digital Radio, as borrower, and in favor of COM, as lender;
WHEREAS, Eagle River and WPM guaranteed the repayment of the Digital
Radio Note pursuant to "Continuing Guarantees";
WHEREAS, concurrently herewith Digital Radio is distributing to Eagle
River, 9,907,659 issued and outstanding shares of Class A Voting Common Stock
of Nextel Communications, Inc. (the "Shares"), free and clear of all liens,
claims, options, changes, pledges and encumbrances other than the Digital Radio
Note and the Pledge Agreement (such distribution of the Shares is referred to as
the "Distribution");
WHEREAS, in connection with the distribution to Eagle River of the
Shares, Eagle River has agreed to execute this Loan Assumption Agreement in
favor of COM (the "Eagle River Loan Assumption Agreement");
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other consideration, the receipt and adequacy of which
is hereby acknowledged, the Parties agree as follows:
1. ASSUMPTION OF OBLIGATIONS
1.1 Eagle River does hereby assume all of Digital Radio's obligations
under the Digital Radio Note and the Pledge Agreement.
1.2 Eagle River acknowledges that it is receiving the Shares subject
to the Pledge Agreement, and that the Shares remain subject to
COM's first priority perfected security interest as collateral
for the Loan as provided for in the Pledge Agreement.
2. CONSENT TO ASSUMPTION AND TRANSFER
1
<PAGE> 15
2.1 COM hereby consents to the Distribution.
2.2 COM agrees and acknowledges that Digital Radio is hereby released
from any liability under the Digital Radio Note and the Pledge
Agreement.
2.3 COM hereby releases Eagle River from its obligations under its
Continuing Guarantee.
3. MISCELLANEOUS.
3.1 Assignment. This Agreement shall be binding upon and shall inure
to the benefit of the Parties hereto and their respective
successors and assigns. No Party to this Agreement may assign
this Agreement without the prior written consent of the other
Parties hereto, except that both COM and Eagle River, may assign
their rights and obligations under this Agreement to any of their
affiliates; provided, however, that in neither case does such an
assignment relieve the assigning Party of his or her obligations
under this Agreement; and except that Eagle River may assign its
rights and obligations herein to WPM.
3.2 Specific Performance. The Parties recognize that in the event
that any Party defaults in the performance of its obligations
under this Agreement, monetary damages alone will not be
adequate. Therefore, in addition to bringing an action for breach
of contract and/or indemnification under this Agreement, any
Party shall be entitled to obtain specific performance of the
terms of this Agreement. In any action to enforce specifically
the performance of this Agreement, the defending Party shall
waive the defense that there is an adequate remedy at law or
equity and agree that specific performance is an appropriate
remedy for breach or default except where specific performance is
not feasible.
3.3 Further Assurances. Each of the Parties hereto shall cooperate,
shall take such further action and shall execute and deliver such
further documents as may be reasonably requested by the other
Parties in order to carry out the provisions and purposes of this
Agreement.
3.4 Governing Law. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State
of Washington.
3.5 Amendment; Waiver. Neither this Agreement nor any provision
hereof may be amended, waived, discharged or terminated, except
by a written instrument signed by each of the Parties sought to
be bound thereby that specifically references this Agreement and
any such amendment, waiver, discharge or termination.
3.6 Severability. To the extent any provision of this Agreement shall
be invalid or unenforceable, it shall be considered deleted from
this Agreement and the remaining provisions of this Agreement
shall be unaffected and shall continue in full force and effect.
3.7 Agreement Effective after Death. Should the death of COM occur,
all provisions of this Agreement shall nonetheless be valid and
shall be enforceable by or against the estate and heirs of COM
insofar as applicable law permits.
2
<PAGE> 16
3.8 Certain Rules of Construction. Any ambiguities shall be resolved
without reference to which party may have drafted this Agreement.
All Article or Section titles or captions contained in this
Agreement are for convenience only, and they shall not be deemed
part of this Agreement and in no way define, limit, extend or
describe the scope or limit of any provisions hereof. Unless the
context otherwise requires: (i) a term has the meaning assigned
to it; (ii) "or" is not exclusive; (iii) words in the singular
include the plural, and words in the plural include the singular;
(iv) provisions apply to successive events and transactions; (v)
"herein," "hereof" and other words of similar import refer to
this Agreement as a whole and not to any particular Article,
Section or other subdivision; (vi) all references to "Articles"
or "Sections" refer to Articles and Sections of this Agreement
unless otherwise specifically indicated; and (vii) any pronoun
used in this Agreement shall include the corresponding masculine,
feminine and neuter forms.
3.9 Notices. All notices and other communications required or
permitted to be given hereunder or which are given with respect
to this Agreement shall be in writing and shall be personally
served or mailed, registered or certified, return receipt
requested, postage prepaid (or by a substantially similar
method), or delivered by a reputable overnight courier service
with charges prepaid, or transmitted by hand delivery, telegram,
telex or facsimile, addressed as set forth on Exhibit A to the
Nextel Securities Distribution Agreement hereto, or such other
address as such party shall have specified most recently by
written notice. Notice shall be deemed given or delivered on the
date of service or transmission if personally served or
transmitted by hand delivery, telegram, telex or facsimile.
Notice otherwise sent as provided herein shall be deemed given or
delivered on the fifth business day following the date mailed or
on the next business day following delivery of such notice to a
reputable overnight courier service.
3.10 Attorneys' Fees. If any legal action or other proceeding is
commenced that is related to this Agreement, the prevailing Party
shall be entitled to receive from the other party or parties its
reasonable legal fees and expenses incurred in the preparation
of, conduct of or appeal or enforcement of judgment from the
proceeding.
3.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered, shall
be deemed to be an original and all of which, taken together,
shall constitute one and the same Agreement, and may be executed
by facsimile.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
Eagle River Investments, L.L.C. CRAIG O. McCAW
By: /s/ CRAIG O. McCAW By: /s/ CRAIG O. McCAW
----------------------------- ---------------------------------
3
<PAGE> 17
Name: Craig O. McCaw
Its: Managing Member
DIGITAL RADIO, L.L.C.
By: /s/ Craig O. McCaw
-------------------------------
4
<PAGE> 18
EXHIBIT A(2)
FORM OF LOAN ASSUMPTION AGREEMENT BETWEEN WPM AND COM
SEE ATTACHED.
<PAGE> 19
LOAN ASSUMPTION AGREEMENT
WENDY P. MCCAW AND CRAIG O. MCCAW
This Loan Assumption Agreement ("Agreement") is entered into by and
between Wendy P. McCaw ("WPM") and Craig O. McCaw ("COM") (collectively the
"Parties" and each as "Party") as of November 3, 1997, ("Effective Date").
Recitals
WHEREAS, pursuant to an agreement dated as of November 3, 1997 (the
"Nextel Securities Distribution Agreement") between, among others, the Parties,
Eagle River Investments, L.L.C. (Eagle River") and Digital Radio, L.L.C.
(Digital Radio"), COM loaned to Digital Radio $122,678,221 (the "Loan") pursuant
to a Demand Promissory Note of Digital Radio (the "Digital Radio Note");
WHEREAS, the Digital Radio Note was secured by a pledge by Digital Radio
of the "Shares" (as defined below) pursuant to a Pledge Agreement (the "Pledge
Agreement") between Digital Radio, as borrower, and in favor of COM, as lender;
WHEREAS, Eagle River and WPM guaranteed the repayment of the Digital
Radio Note pursuant to "Continuing Guarantees";
WHEREAS, concurrently herewith Digital Radio is distributing to Eagle
River, and Eagle River is distributing to WPM, 9,907,659 issued and outstanding
shares of Class A Voting Common Stock of Nextel Communications, Inc. (the
"Shares"), free and clear of all liens, claims, options, changes, pledges and
encumbrances other than the Digital Radio Note and the Pledge Agreement (such
distribution of the Shares is referred to as the "Distribution"); and
WHEREAS, in connection with the distribution to Eagle River of the
Shares, Eagle River has executed a Loan Assumption Agreement in favor of COM
(the "Eagle River Loan Assumption Agreement");
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other consideration, the receipt and adequacy of which
is hereby acknowledged, the Parties agree as follows:
1. ASSUMPTION OF OBLIGATIONS
1.1 WPM does hereby assume all of Eagle River's obligations under the
Digital Radio Note and the Pledge Agreement.
1.2 WPM acknowledges that she is receiving the Shares subject to the
Pledge Agreement, and that the Shares remain subject to Lender's
first priority perfected security interest as collateral for the
Loan as provided for in the Pledge Agreement.
2. CONSENT TO ASSUMPTION AND TRANSFER
1
<PAGE> 20
Corporate Transaction
2.1 COM hereby consents to the Distributions.
2.2 COM agrees and acknowledges that Eagle River is hereby released
from any liability under the Digital Radio Note and the Pledge
Agreement and the Eagle River Loan Assumption Agreement.
2.3 COM hereby releases WPM from her obligations under her Continuing
Guarantee.
3. MISCELLANEOUS.
3.1 Assignment. This Agreement shall be binding upon and shall inure
to the benefit of the Parties hereto and their respective
successors and assigns. No Party to this Agreement may assign
this Agreement without the prior written consent of the other
Parties hereto, except that both COM and WPM, may assign their
rights and obligations under this Agreement to any of their
affiliates; provided, however, that in neither case does such an
assignment relieve the assigning Party of his or her obligations
under this Agreement.
3.2 Specific Performance. The Parties recognize that in the event
that any Party defaults in the performance of its obligations
under this Agreement, monetary damages alone will not be
adequate. Therefore, in addition to bringing an action for breach
of contract and/or indemnification under this Agreement, any
Party shall be entitled to obtain specific performance of the
terms of this Agreement. In any action to enforce specifically
the performance of this Agreement, the defending Party shall
waive the defense that there is an adequate remedy at law or
equity and agree that specific performance is an appropriate
remedy for breach or default except where specific performance is
not feasible.
3.3 Further Assurances. Each of the Parties hereto shall cooperate,
shall take such further action and shall execute and deliver such
further documents as may be reasonably requested by the other
Parties in order to carry out the provisions and purposes of this
Agreement.
3.4 Governing Law. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State
of Washington.
3.5 Amendment; Waiver. Neither this Agreement nor any provision
hereof may be amended, waived, discharged or terminated, except
by a written instrument signed by each of the Parties sought to
be bound thereby that specifically references this Agreement and
any such amendment, waiver, discharge or termination.
3.6 Severability. To the extent any provision of this Agreement shall
be invalid or unenforceable, it shall be considered deleted from
this Agreement and the remaining provisions of this Agreement
shall be unaffected and shall continue in full force and effect.
3.7 Agreement Effective after Death. Should the death of either COM
or WPM occur, all provisions of this Agreement shall nonetheless
be valid and shall be enforceable by or against the estate and
heirs of COM and WPM insofar as applicable law permits.
2
<PAGE> 21
3.8 Certain Rules of Construction. Any ambiguities shall be resolved
without reference to which party may have drafted this Agreement.
All Article or Section titles or captions contained in this
Agreement are for convenience only, and they shall not be deemed
part of this Agreement and in no way define, limit, extend or
describe the scope or limit of any provisions hereof. Unless the
context otherwise requires: (i) a term has the meaning assigned
to it; (ii) "or" is not exclusive; (iii) words in the singular
include the plural, and words in the plural include the singular;
(iv) provisions apply to successive events and transactions; (v)
"herein," "hereof" and other words of similar import refer to
this Agreement as a whole and not to any particular Article,
Section or other subdivision; (vi) all references to "Articles"
or "Sections" refer to Articles and Sections of this Agreement
unless otherwise specifically indicated; and (vii) any pronoun
used in this Agreement shall include the corresponding masculine,
feminine and neuter forms.
3.9 Notices. All notices and other communications required or
permitted to be given hereunder or which are given with respect
to this Agreement shall be in writing and shall be personally
served or mailed, registered or certified, return receipt
requested, postage prepaid (or by a substantially similar
method), or delivered by a reputable overnight courier service
with charges prepaid, or transmitted by hand delivery, telegram,
telex or facsimile, addressed as set forth on Exhibit A to the
Nextel Securities Distribution Agreement hereto, or such other
address as such party shall have specified most recently by
written notice. Notice shall be deemed given or delivered on the
date of service or transmission if personally served or
transmitted by hand delivery, telegram, telex or facsimile.
Notice otherwise sent as provided herein shall be deemed given or
delivered on the fifth business day following the date mailed or
on the next business day following delivery of such notice to a
reputable overnight courier service.
3.10 Attorneys' Fees. If any legal action or other proceeding is
commenced that is related to this Agreement, the prevailing Party
shall be entitled to receive from the other party or parties its
reasonable legal fees and expenses incurred in the preparation
of, conduct of or appeal or enforcement of judgment from the
proceeding.
3.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered, shall
be deemed to be an original and all of which, taken together,
shall constitute one and the same Agreement, and may be executed
by facsimile.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
WENDY P. McCAW CRAIG O. McCAW
/s/ WENDY P. McCAW /s/ CRAIG O. McCAW
- ------------------------------------ ------------------------------------
DIGITAL RADIO, L.L.C.
/s/ CRAIG O. McCAW
------------------------------------
3
<PAGE> 22
EXHIBIT B
EXISTING AGREEMENTS
Stock Purchase Agreement dated as of April 4, 1995 by and between Motorola, Inc.
and Digital Radio, LLC.
Securities Purchase Agreement dated as of April 4, 1995 by and among Nextel
Communications, Inc., Digital Radio, LLC and Craig O. McCaw.
Amended and Restated Limited Liability Company Agreement of Digital Radio,
L.L.C.
Multibank Credit Agreement dated as of July 28, 1995 by and among Digital Radio,
LLC, the Banks signatory thereto and The Chase Manhattan Bank, as agent.
Borrower Pledge Agreement dated July 28, 1995 by Digital Radio, LLC in favor of
The Chase Manhattan Bank.
Third Party Pledge Agreements dated July 28, 1995 in favor of the The Chase
Manhattan Bank.
Amended and Restated Multibank Credit Agreement dated as of July 28, 1997 among
Digital Radio, LLC, the Banks signatory thereto and The Chase Manhattan Bank, as
agent.
First Amendment to Amended and Restated Multibank Credit Agreement dated as of
August 29, 1997 among Digital Radio, LLC, the Banks signatory thereto and The
Chase Manhattan Bank, as agent.
Motorola Drawdown Agreement dated September 3, 1997
15
<PAGE> 23
EXHIBIT C
DIGITAL RADIO OPTIONS
<TABLE>
<CAPTION>
OPTIONS INITIAL EXPIRATION DATE NUMBER
ACQUIRED FROM EXERCISE DATE --------------- ------
- ------------- -------------
<S> <C> <C> <C>
Nextel 07/28/1995 07/28/1999 6,011,201
Nextel 07/28/1995 07/01/2001 1,608,476
Motorola 07/28/1999 08/27/1999 801,493
Motorola 07/28/2001 08/27/2001 2,017,211
</TABLE>
16
<PAGE> 24
EXHIBIT D
NOTICES
COM
Craig O. McCaw
Attention: Dennis M. Weibling
2300 Carillon Point
Kirkland, Washington 98033-7353
WPM
Care of Gregory Canova-Parker, Esq.
1332 Anacapa Street, Suite 200
Santa Barbara, CA 93120
and
Care of Earl P. Lasher, Esq.
2600 Two Union Square
601 Union Street
Seattle, WA 98101-4000
EAGLE RIVER
Eagle River Investments, L.L.C.
Attention: C. James Judson
2300 Carillon Point
Kirkland, Washington 98033-7353
DIGITAL RADIO
Digital Radio, L.L.C.
Attention: C. James Judson
2300 Carillon Point
Kirkland, Washington 98033-7353
17
