1
NEXTEL SECURITIES AGREEMENT
The Parties have, as an integral part of their marital settlement,
reached a settlement of all issues and wish to set forth the essential terms
having to do with the Nextel Communications, Inc. stock and options
(collectively, the "Nextel Securities") owned by the Parties in this Agreement,
which will be binding and enforceable between them. This Agreement shall be
effective as of October 10, 1997.
1. PROPERTY DIVISION. The Parties shall allocate to Xxxxx X. XxXxx
("Wife") 9,257,659 shares of common stock of Nextel, together
with the following options (collectively, the "Nextel Options"):
i. Motorola 1999: 452,207
ii. Nextel 1999: 3,391,553
iii. Motorola 2001: 1,116,990
iv. Nextel 2001: 1,525,725
2. ALLOCATION. The Nextel shares allocated to Wife will be
distributed free of all liens and encumbrances and will be
vested in Wife's name. The Nextel shares shall be freely
transferable by Wife, subject to compliance with the applicable
securities and other laws and SEC regulations, including xxxxxxx
xxxxxxx rules, and, to the extent applicable to Wife,
Company-established policies and rules relating to xxxxxxx
xxxxxxx and non-public information. Except for the shareholder
rights and minority protections in Sections 7 through 9 herein
which shall supersede the following provisions, Wife's ownership
of shares in Nextel shall be subject to terms and restrictions
contained in the Stock Purchase Agreement dated April 4, 1995;
the Securities Purchase Agreement dated April 4, 1995; the
Amended and Restated Limited Liability Company Agreement of
Digital Radio, L.L.C. ("Digital Radio"); the Multibank Credit
Agreement dated July 28, 1995; the Borrower Pledge Agreement;
the Third Party Pledge Agreements; the Amended and Restated
Multibank Credit Agreement dated July 28, 1997; the First
Amendment to Amended and Restated Multibank Credit Agreement
dated August 29, 1997; and the Motorola Drawdown dated September
3, 1997.
3. CLOSING. The Parties shall use best efforts to transfer stock of
Nextel to Wife by October 31, 1997, subject to the provisions of
Section 6 below.
4. NEXTEL SHARES. As an integral part of the distribution of Nextel
stock from Digital Radio to Eagle River Investments, LLC ("Eagle
River"), Wife agrees to assume and guarantee her proportionate
share, or at least $101,800,581 thereof, of total debt in
Digital Radio, based on the ratio of her deemed ownership of
units in Digital Radio (through Eagle River) to the total units
in Digital Radio, or, if such assumption and guarantee is
administratively burdensome, instead to guarantee an equal
amount of new Digital Radio debt replacing and paying down the
existing Digital Radio debt. Wife also agrees to continue her
guarantee of such debt upon transfer of her Nextel shares to
Eagle River and to assume such debt upon the transfer of such
shares to her from Eagle River. Rather than performing as
discussed in the preceding portion of this paragraph, Wife shall
have the option of retaining part or all of her Nextel shares in
Eagle River or Digital Radio as set forth in paragraph 6 below.
In such case, the Parties will discuss a mechanism pursuant to
which Wife can require such stock to be sold by Digital Radio
and/or Eagle River with Wife to bear the tax consequences of
1
2
any such sale, subject to all SEC rules, including xxxxxxx
xxxxxxx rules and Company-established policies and rules
regarding xxxxxxx xxxxxxx and non-public information.
5. NEXTEL OPTIONS. Wife will receive the benefits of ownership of
the Nextel Options through Digital Radio. The Nextel Options are
exercisable only by Xxxxx X. XxXxx ("Husband") or entities he
controls and Husband has represented that ownership cannot be
directly transferred to Wife under the terms of the applicable
option agreements. Since the Nextel Options cannot be
transferred, the Parties intend to enable Wife to have, as
closely as possible, the same rights as she would have had if
she directly owned them. Wife will indemnify Husband against and
pay the tax liability arising from the exercise of the Nextel
Options for her benefit, including any tax costs internal to the
entities that actually hold and exercise the Nextel Options, and
Wife will pay all exercise costs of all Nextel Options.
6. WIFE'S OPTION. Wife shall have the option of retaining part or
all of her Nextel shares in Eagle River and/or Digital Radio on
the following terms and conditions. (Wife's rights as to Nextel
Options are as described in paragraph 5.) The LLC Agreement of
Eagle River would be amended to continue her as a member and to
accurately reflect her separate interest in Nextel. Upon 30 days
notice and, notwithstanding any restrictions to the contrary in
the limited liability company agreements of Eagle River or
Digital Radio, Wife would be entitled to cause Eagle River
and/or Digital Radio to distribute Wife's Nextel stock to her.
Any such distribution to her would be free and clear of all
liens and liabilities and Husband will use best efforts to
assure that, after any such distribution, Wife will have those
existing rights that are applicable to Nextel in its present
status within Digital Radio and/or Eagle River. Alternatively,
Wife shall have the right to require Eagle River and/or Digital
Radio to sell her proportionate share of Nextel stock at her
sole cost, effort and expense, and to receive the proceeds
therefrom as a distribution, all subject to applicable
securities and other laws and SEC regulations, and, to the
extent applicable to Wife, all Company-established policies and
rules regarding xxxxxxx xxxxxxx and non-public information. Wife
will bear the tax consequences of any such sale. Wife will be
able freely to pledge or mortgage her interest in Eagle River,
provided that any such pledgee or mortgagee holder will agree
that, in the event of any foreclosure, the only requirement of
Eagle River is that it distribute to such pledgee or mortgagee
holder Wife's Nextel stock and its only rights with respect to
Eagle River will be to obtain such Nextel stock. The Parties
agree that the tax issues relating to withdrawal of the Nextel
stock will be handled in the same manner as the Parties utilize
with respect to other securities being dealt with as a result of
their marital settlement. Prior to distribution, Wife would have
approval rights with respect to any changes in the Eagle River
and/or Digital Radio governing documents that would adversely
effect her Nextel stock. If a majority in interest of the Eagle
River and/or Digital Radio members approves changes in the Eagle
River and/or Digital Radio governing documents, and Wife
disapproves of such changes, and the changes do not discriminate
against her interest and apply uniformly to all other Eagle
River and/or Digital Radio members, then Eagle River and/or
Digital Radio may distribute Wife's Nextel stock to her if she
does not withdraw her disapproval. Wife's rights under this
paragraph are subject to applicable law,
2
3
including securities laws, and to the Nextel documents listed in
paragraph 2 hereof.
7. TAG ALONG. Wife will have tag along rights with respect to
Nextel in connection with any sale or transfer or series of
related sales by Husband or an entity controlled by him of
control of Nextel or of 50% or more of the interest in Nextel
owned by him or any of his controlled entities.
8. REGISTRATION RIGHTS. Wife will not receive any demand
registration rights with respect to Nextel other than those she
may otherwise have by virtue of other agreements. Wife will
receive piggyback registration rights as to any registration in
which Husband or any of his affiliates has a right to register
any Nextel shares.
9. INFORMATION RIGHTS. Wife shall, at her option, have the right to
receive the following information from Husband with respect to
Nextel beginning at the earliest of a) 60 days prior to the time
they must exercise any Nextel options, or b) such earlier time
as Husband reaches a decision whether to exercise or c) directs
the investigation of financing alternatives: (i) whether Husband
intends to exercise such Nextel options; and (ii) all of the
written information available to him upon which he has based his
decision. Wife will not use any non-public information given to
her pursuant to this paragraph 9 in connection with publicly
purchasing or selling Nextel securities nor will she improperly
disclose such non-public information to third parties.
10. DISPUTE RESOLUTION. The Parties agree to resolve any disputes
under this Agreement in the same manner as they utilize to
resolve other disputes arising out of their marital settlement.
11. AMENDMENTS, ETC. This Agreement supersedes any and all other
prior understandings or agreements concerning the ownership of
the Nextel Securities. The Parties may in connection with other
matters arising out of the settlement of their marital property,
amend, modify of supplement the terms and provisions of this
Agreement, but such amendments, modifications or supplements
shall not be effective unless set forth in a writing executed by
both Parties dated subsequent hereto.
12. OTHER. This Agreement a) may be specifically enforced, and the
Parties agree that in cases where specific enforcement is
feasible, it will not be urged that a remedy at law is adequate
or preferable; b) is governed by Washington law; c) shall be
kept confidential except as reasonably determined by each party
in the ordinary course of business; d) may be executed in
multiple counterparts and by FAX; e) shall remain in full force
and effect in case of the death or either or both Parties and
may be enforced by or against the estate of either. Each party
warrants that he or she has been fully advised by counsel with
respect to this Agreement.
/s/ XXXXX X XXXXX /s/ XXXXX X. XXXXX
------------------------------- ------------------------------------
Xxxxx X. XxXxx Xxxxx X. XxXxx
3
