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As filed with the Securities and Exchange Commission on December 15, 1999
Registration No. 333-53429
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Post Effective Amendment No. 1 to
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NEXTEL COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 36-3939651
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
2001 Edmund Halley Drive, Reston, Virginia 20191
(Address of Principal Executive Offices) (Zip Code)
NEXTEL COMMUNICATIONS, INC. AMENDED AND RESTATED INCENTIVE EQUITY PLAN
(AS AMENDED AND RESTATED AS OF JULY 14, 1999)
(Full title of plan)
Thomas J. Sidman, Esq.
Senior Vice President and General Counsel
Nextel Communications, Inc.
2001 Edmund Halley Drive
Reston, Virginia 20191
(Name and address of agent for service)
(703) 433-3000
(Telephone number, including area code, of agent for service)
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The purpose of this Post-Effective Amendment No. 1 to Registration Statement No.
333-53429 on Form S-8 (the "Registration Statement") of Nextel Communications,
Inc., (the "Company" or "Nextel") is to file as an exhibit to the Registration
Statement the Amended and Restated Incentive Equity Plan, as amended and
restated effective July 14, 1999.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
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* Information required by Part I of Form S-8 to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"),
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by 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,
1998, filed with the Commission on March 30, 1999;
(ii) Quarterly Report on Form 10-Q for the quarter ended March 31,
1999, dated and filed with the Commission on May 17, 1999;
(iii) Quarterly Report on Form 10-Q for the quarter ended June 30,
1999, dated and filed with the Commission on August 16, 1999;
(iv) Quarterly Report on Form 10-Q for the quarter ended September 30,
1999, dated and filed with the Commission on November 15, 1999;
(v) Current Reports on Form 8-K:
(a) dated and filed with the Commission on February 24, 1999;
(b) dated and filed with the Commission on April 1, 1999;
(c) dated May 12, 1999 and filed with the Commission on May
13, 1999;
(d) dated and filed with the Commission on June 15, 1999;
(e) dated and filed with the Commission on June 23, 1999;
(f) dated and filed with the Commission on August 12, 1999;
(g) dated and filed with the Commission on August 18, 1999;
(h) dated October 20, 1999 and filed with the Commission on
October 21, 1999;
(i) dated and filed with the Commission on November 8, 1999;
(j) dated and filed with the Commission on November 12, 1999;
(k) dated November 30, 1999 and filed with the Commission on
December 1, 1999
(vi) Proxy Statement, dated as of April 7, 1999, filed with the
Commission in definitive form on April 8, 1999 with respect to
the information required by Items 401 (management), 402
(executive compensation), 403 (securities ownership) and 404
(certain relationships and related transactions) of Regulation
S-K promulgated under the Securities Act and the Securities and
Exchange Act of 1934 (the "Exchange Act"); and
(vii) The description of the Company's common stock, contained in the
registration statement on Form 8-A dated January 16, 1992
including the information incorporated by reference into that
registration statement from the registration statement on Form
S-1, as amended, dated as of January 27, 1992, and any amendments
and reports filed for the purpose of updating that description.
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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 Amended and Restated Incentive Equity
Plan (the "Incentive Equity Plan") have been sold or deregistereing 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
this filing.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Set forth below is a description of certain provisions of the Restated
Certificate of Incorporation, as amended (the "Nextel Charter"), of Nextel, 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 (1) for any breach of the director's duty of loyalty to such
corporation or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) for
paying a dividend or approving a stock repurchase in violation of Section 174 of
the DGCL, or (4) 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
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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:
(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.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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<S> <C>
4.1 - Restated Certificate of Incorporation of Nextel (filed on July 31, 1995 as Exhibits
4.1.1 and 4.1.2 to Nextel's Post-Effective Amendment No. 1 on Form S-8 to
Registration Statement No. 33-91716 on Form S-4 (the "Nextel S-8 Registration
Statement") and incorporated herein by reference).
4.2 - Amended and Restated By-laws of the Company (filed on July 31,
1995 as Exhibit 4.2 to the Nextel S-8 Registration Statement and
incorporated herein by reference).
4.3 - Nextel Communications, Inc. Amended and Restated Incentive Equity Plan (as amended
and restated as of July 14, 1999) (filed on November 15, 1999 as Exhibit 10.3 to the
Quarterly Report on Form 10-Q for the quarter ended September 30, 1999 and
incorporated herein by reference).
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.
24.1 - Power of Attorney
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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; and
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(ii) 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, 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 Reston, Commonwealth of Virginia, on the 15th day of December, 1999.
NEXTEL COMMUNICATIONS, INC.
By: /s/ THOMAS J. SIDMAN
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Thomas J. Sidman
Senior Vice President and General Counsel
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated:
<TABLE>
<CAPTION>
NAME TITLE DATE
- ---- ----- ----
<S> <C> <C>
/s/ DANIEL F. AKERSON Chairman of the Board and Director
- ----------------------------
Daniel F. Akerson
/s/ TIMOTHY M. DONAHUE President, Chief Executive Officer
- ---------------------------- and Director
Timothy M. Donahue
/s/ STEVEN M. SHINDLER Executive Vice President and Chief Financial
- ---------------------------- Officer (Principal Financial Officer)
Steven M. Shindler
/s/ WILLIAM G. ARENDT Vice President and Controller
- ---------------------------- (Principal Accounting Officer)
William G. Arendt
/s/ MORGAN E. O'BRIEN Vice Chairman of the Board and Director
- ----------------------------
Morgan E. O'Brien
/s/ KEITH J. BANE Director
- ----------------------------
Keith J. Bane
Director
- ----------------------------
William E. Conway
/s/ FRANK M. DRENDEL Director
- ----------------------------
Frank M. Drendel
/s/ WILLIAM A. HOGLUND Director
- ----------------------------
William A. Hoglund
Director
- ----------------------------
Craig O. McCaw
/s/ DENNIS M. WEIBLING Director
- ----------------------------
Dennis M. Weibling
</TABLE>
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EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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<S> <C>
4.1 - Restated Certificate of Incorporation of Nextel (filed on July
31, 1995 as Exhibits 4.1.1 and 4.1.2 to Nextel's Post-Effective
Amendment No. 1 on Form S-8 to Registration Statement No. 33-91716
on Form S-4 (the "Nextel S-8 Registration Statement") and
incorporated herein by reference).
4.2 - Amended and Restated By-laws of the Company (filed on July 31,
1995 as Exhibit 4.2 to the Nextel S-8 Registration Statement and
incorporated herein by reference).
4.3 - Nextel Communications, Inc. Amended and Restated Incentive
Equity Plan (as amended and restated as of July 14, 1999)
(filed on November 15, 1999 as Exhibit 10.3 to the Quarterly
Report on Form 10-Q for the quarter ended September 30, 1999
and incorporated
herein by reference).
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.
24.1 - Power of Attorney
</TABLE>
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Exhibit 5
JONES, DAY, REAVIS & POGUE
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
December 15, 1999
Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
Re: Nextel Communications, Inc. Amended and
Restated Incentive Equity Plan (as amended and restated as of
July 14, 1999)
Ladies and Gentlemen:
We have acted as counsel for Nextel Communications, Inc., a
Delaware corporation (the "Company"), in connection with the Nextel
Communications, Inc. Amended and Restated Incentive Equity Plan (as amended and
restated as of July 14, 1999) (the "Plan"). We have examined such documents,
records and matters of law as we have deemed necessary for purposes of this
opinion, and based thereupon, we are of the opinion that the shares of Class A
Common Stock, $0.001 par value per share (the "Common Stock"), that may be
issued or transferred and sold pursuant to the Plan will be, when issued or
transferred and sold in accordance with the Plan and any agreements thereunder,
and assuming receipt of consideration at least equal to the par value of the
Common Stock, duly authorized, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to
the Registration Statement on Form S-8 filed by the Company to effect
registration of the shares of Common Stock to be issued or transferred and sold
pursuant to the Plan under the Securities Act of 1933.
Very truly yours,
Jones, Day, Reavis & Pogue
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Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No.1 to the Registration Statement No. 333-53429 of Nextel Communications, Inc.
on Form S-8 of our report dated February 22, 1999, appearing in the Annual
Report on Form 10-K of Nextel Communications, Inc. for the year ended December
31, 1998.
Deloitte & Touche, LLP
McLean, Virginia
December 15, 1999
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EXHIBIT 24.1
Director and/or Officer of Nextel Communications, Inc.
Post-Effective Registration Statement on Form S-8
POWER OF ATTORNEY
The undersigned director and/or officer of Nextel Communications, Inc. a
Delaware corporation (the "Corporation"), hereby constitutes and appoints Steven
M. Shindler, Thomas J. Sidman and Timothy M. Donahue, and each of them, with
full power of substitution and resubstitution, as attorneys-in-fact or
attorney-in-fact of the undersigned, for him or her and in his or her name,
place and stead, to sign and file with the Securities and Exchange Commission
under the Securities Act of 1933 (the "Securities Act") one or more Registration
Statement(s) on Form S-8 relating to the registration of the Corporation's Class
A Common Stock, with any and all amendments, supplements and exhibits thereto,
including post-effective amendments or supplements or any additional
registration statement filed pursuant to Rule 462 promulgated under the
Securities Act, with full power and authority to do and perform any and all acts
and things whatsoever required, necessary or desirable to be done in the
premises, hereby ratifying and approving the act of said attorneys and any of
them and any such substitute.
Executed as of December 11, 1999
<TABLE>
<S> <C>
/s/ TIMOTHY M. DONAHUE /s/ STEVEN M. SHINDLER
- ---------------------- ----------------------
Timothy M. Donahue Steven M. Shindler
President, Chief Executive Officer and Director Executive Vice President and Chief
(Principal Executive Officer) Financial Officer (Principal Financial
Officer)
/s/ DANIEL F. AKERSON /s/ MORGAN E. O'BRIEN
- --------------------- ---------------------
Daniel F. Akerson Morgan E. O'Brien
Chairman of the Board of Directors and Director Vice Chairman of the Board
/s/ WILLIAM G. ARENDT /s/ CRAIG O. MCCAW
- --------------------- ------------------
William G. Arendt Craig O. McCaw
Vice President and Controller Director
(Principal Accounting Officer)
/s/ KEITH J. BANE /s/ WILLIAM E. CONWAY, JR.
- ------------------ --------------------------
Keith J. Bane William E. Conway, Jr.
Director Director
/s/ FRANK M. DRENDEL /s/ JANET V. HILL
- -------------------- -----------------
Frank M. Drendel Janet V. Hill
Director Director
/s/ DENNIS M. WEIBLING
- ------------------ ----------------------
William A. Hoglund Dennis M. Weibling
Director Director
/s/ THOMAS J. SIDMAN
- --------------------
Thomas J. Sidman
Attorney-in-Fact
</TABLE>
