-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Dh6pctrBLUgf5f0SjiaW1LoLk5fK2D7E7NTw0Qd/x0RDvM6sP6a907Enicb1sfO3 zsAb5fwIMJttQzLk1sZtVA== 0000950150-97-001593.txt : 19971107 0000950150-97-001593.hdr.sgml : 19971107 ACCESSION NUMBER: 0000950150-97-001593 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19971106 SROS: NONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NEXTEL COMMUNICATIONS INC CENTRAL INDEX KEY: 0000824169 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 363939651 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-42889 FILM NUMBER: 97708936 BUSINESS ADDRESS: STREET 1: 1505 FARM CREDIT DR STREET 2: STE 100 CITY: MCLEAN STATE: VA ZIP: 22102 BUSINESS PHONE: 2014381400 MAIL ADDRESS: STREET 1: 201 ROUTE 17 N CITY: RUTHERFORD STATE: NJ ZIP: 07070 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MCCAW WENDY P CENTRAL INDEX KEY: 0001048073 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O LATHAM & WATKINS STREET 2: 633 W 5TH ST STE 4000 CITY: LOS ANGELES STATE: CA ZIP: 90071 MAIL ADDRESS: STREET 1: LATHAM & WATKINS STREET 2: 633 W 5TH ST STE 4000 CITY: LOS ANGELES STATE: CA ZIP: 90071 SC 13D/A 1 SCHEDULE 13D/A 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) 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 - -------------------------------------------------------------------------------- 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 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:
NAME NUMBER OF SHARES PERCENTAGE - ---- ---------------- ---------- Reporting Person ............. 14,824,937(1) 6.04% 7,619,677(2) ---------- ---- Total ........................ 22,444,614 8.87%
- ---------- (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, 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. 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 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 EX-2 2 NEXTEL SECURITIES DISTRIBUTION AGREEMENT 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 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 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 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 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 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 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 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 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 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 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 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 13 EXHIBIT A(1) FORM OF LOAN ASSUMPTION AGREEMENT BETWEEN EAGLE RIVER AND COM SEE ATTACHED. 13 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 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 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 17 Name: Craig O. McCaw Its: Managing Member DIGITAL RADIO, L.L.C. By: /s/ Craig O. McCaw ------------------------------- 4 18 EXHIBIT A(2) FORM OF LOAN ASSUMPTION AGREEMENT BETWEEN WPM AND COM SEE ATTACHED. 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 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 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 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 23 EXHIBIT C DIGITAL RADIO OPTIONS
OPTIONS INITIAL EXPIRATION DATE NUMBER ACQUIRED FROM EXERCISE DATE --------------- ------ - ------------- ------------- 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
16 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 -----END PRIVACY-ENHANCED MESSAGE-----