EXHIBIT 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 any such
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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,
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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 of 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
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Xxxxx X. XxXxx Xxxxx X. XxXxx
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