CERTIFICATE OF INCORPORATION

 

                        OF NEXTEL COMMUNICATIONS, INC.

 

 

 

     1.The name of the Corporation is:

 

                        Nextel Communications, Inc.

 

     2.The address of its registered office in the State of Delaware is

Corporation Service Company, 1013 Centre Road, in the City of Wilmington, County

of New Castle. The name of its registered agent at such address incorporation

Service Company.

 

     3.The nature of the business or purposes to be conducted or promoted is to

engage in any lawful act or activity for which corporations may be organized

under the General Corporation Law of Delaware.

 

     4.The total authorized number of shares of all classes of capital stock

which the Corporation has authority to issue is 2,233,883,948shares divided

into six classes as follows:

 

        2,060,000,000 shares of Class A Common Stock of the par value of $0.001

        per share;

 

        100,000,000 shares of Class B Non-Voting Common Stock of the par value

        of $0.001 per share;

 

        26,941,933 shares of Class A Convertible Redeemable Preferred Stock of

        the par value of $.01share;

 

        82 shares of Class Convertible Preferred Stock of the par value of

        $.01 share;

 

        26,941,933 shares of Class C Convertible Redeemable Preferred Stock of

        the par value of $.01share; and

 

        20,000,000 shares of Preferred Stock of the par value of $0.01 per

        share.

 

Common Stock

 

     1.Rights Generally. Except as provided herein, all shares of Class A

Common Stock ("Voting Common") and Class B Non-Voting Common Stock ("Non-Voting

Common") (together, "Common Stock") will be identical and entitle the holders

thereof to the same rights and privileges.

 

     2.Dividends. Whenever dividends upon Preferred Stock at the time

outstanding, to the extent of any preference to which such stock is entitled,

shall have been paid in full, or declared and set apart for payment, for all

past dividend periods, and after the

 

 

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    provisions for any sinking or purchase fund or funds for any series of

    Preferred Stock shall have been complied with, the Board of Directors may

    declare and pay dividends on Common Stock, payable in cash, or otherwise,

    and the holders of shares of Preferred Stock shall not be entitled to share

    therein, subject to the provisions of the resolution or resolutions

    creating any series of Preferred Stock, provided that, if dividends are

    declared on the Common Stock which are payable in shares of Common Stock,

    dividends will be declared which are payable at the same rate on both

    classes of Common Stock, dividends payable in shares of Voting Common will

     be payable to holders of Voting Common and dividends payable in shares of

    Non-Voting Common will be payable to holders of Non-Voting Common.

 

     3.Liquidation. In the event of any liquidation, dissolution, or winding up

     of the Corporation or upon the distribution of the assets of the

    Corporation, all assets and funds of the Corporation remaining, after the

     payment to the holders of Preferred Stock of the full preferential amounts

     to which they shall be entitled pursuant to the resolution or resolutions

    creating any series thereof, shall be divided and distributed among the

    holders of the Common Stock ratably, except as may otherwise be provided in

    any such resolution or resolutions.

 

     4.Voting. Except as otherwise required by law, the holders of Voting

    Common will be entitled to one vote per share on all matters to be voted on

     by the stockholders of the Corporation and the holders of Non-Voting Common

    will have no right to vote on any matters to be voted on by the

    stockholders of the Corporation; provided that the holders of Non-Voting

    Common shall have the right to vote, as a separate class (with each share

    having one vote) on any merger, consolidation, reorganization or

    reclassification of the Corporation or its shares of capital stock, any

    amendment to this Certificate of Incorporation or any liquidation,

    dissolution or winding up of the Corporation (each such event being a

    "Fundamental Change") in which shares of Non-Voting Common would be treated

    differently than shares of Voting Common (other than a Fundamental Change

     in which the only difference in such treatment is that the holders of

    Voting Common would be entitled to receive equity securities with full

    voting rights and the holders of the Non-Voting Common would be entitled to

    receive equity securities which have voting rights substantially identical

     to the voting rights of Non-Voting Common and are convertible upon any

    Voting Conversion Event (as defined in Section 5(b), with respect to

    holders of Non-Voting Common other than Motorola, Inc., a Delaware

    corporation or any affiliate thereof (collectively “Motorola"), or a

    Motorola Conversion Event (as defined in Section 5(c), with respect to

    Motorola, on a share for share basis, into the voting securities to which

     the holders of the Voting Common are entitled, but which are otherwise

    identical to such voting securities).

 

     5.Conversion

 

        (a)     Upon the occurrence(or, with respect to clause (i) of this

               Section 5(a), the expected occurrence) of (i) any Voting

               Conversion Event, with respect to holders of Non-Voting Common

               other than Motorola, or any distribution, or sale by Motorola

               described in Section 5(c)(i) hereof (a "Motorola Transfer"),

               each share of Non-Voting Common which is being or has been

 

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               distributed, disposed of or sold (or is expected to be

               distributed, disposed of or sold (or is expected to be

               distributed, disposed of or sold) in connection with such Voting

               Conversion Event or such Motorola Transfer shall be convertible

               at the option of the holder thereof into one fully paid and

               non-assessable share of Voting Common; or (ii) any Motorola

               Conversion Event described in Section 5(c)(ii) hereof, any or

               all of the shares of Non-Voting Common held by Motorola shall be

               convertible at its option into one fully paid and nonassessable

               share of Voting Common.

 

        (b)     "Voting Conversion Event" shall mean:

 

               (i)     any public offering or public sale of securities of the

                       Corporation (including a public offering registered

                       under the Securities Act of 1933 and a public sale

                       pursuant to Rule 144 of the Securities and Exchange

                       Commission or any similar rule then in force);

 

               (ii)    any sale of securities of the Corporation to a person or

                       group of persons (within the meaning of the Securities

                       Exchange Act of 1934(the "1934 Act")) if, after such

                       sale, such person or group of persons in the aggregate

                       would own or control securities which possess in the

                       aggregate the ordinary voting power to elect a majority

                       of the Corporation's directors (provided that such sale

                       has been approved by the Corporation's Board of

                       Directors or a committee thereof);

 

               (iii)   any sale of securities of the Corporation to a person or

                       group of persons (within the meaning of the 1934 Act)

                       if, after such sale, such person or group of persons in

                       the aggregate would own or control securities of the

                       Corporation (excluding any Non-Voting Common being

                       converted and disposed of in connection with such Voting

                       Conversion Event) which possess in the aggregate the

                       ordinary voting power to elect a majority of the

                       Corporation's directors;

 

               (iv)    any sale of securities of the Corporation to a person or

                       group of persons (within the meaning of the 1934 Act)

                       if, after such sale, such person or group of persons

                       would not, in the aggregate, own, control or have the

                       right to acquire more than two percent (2%) of the

                       outstanding securities of any class of voting securities

                       of the Corporation; and

 

               (v)     any distribution, disposition or sale of any securities

                        of the Corporation to a person or group of persons

                       (within the meaning of the 1934 Act) in connection with

                       a merger, consolidation or similar transaction if, after

                       such transaction, such person or group of persons will

                       own or control securities which constitute in the

                       aggregate the ordinary voting power to elect a majority

                       of the

 

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                       surviving corporation's directors (provided that the

                       transaction has been approved by the Corporation's Board

                       of Directors or a committee thereof);

 

        (c)     "Motorola Conversion Event" shall mean:

 

               (i)     Any distribution, disposition or sale of shares of

                       Non-Voting Common by Motorola not prohibited under

                       Section 7.14 of the Agreement and Plan of Contribution

                       and Merger, dated August 4, 1994 by and among the

                       Corporation, Nextel, Motorola and ESMR Sub, Inc., a

                       Delaware corporation (the "Motorola Agreement");

 

               (ii)    the existence of circumstances which, in Motorola's

                       judgment, constitute or are likely to cause or result in

                       a material adverse development with respect to the

                       business, properties, operations or financial condition

                       of the Corporation and its subsidiaries and which

                       otherwise cause conversion of the shares of Non-Voting

                       Common held by Motorola into shares of Voting Common to

                       be reasonably necessary to protect Motorola's interests

                       as a stockholder of the Corporation.

 

               provided that, for purposes of Sections 5(b) and 5(c),"person"

                shall include any natural person and any corporation,

               partnership, joint venture, trust, unincorporated organization

               and any other entity or organization and provided, further that,

               the occurrence of any Motorola Conversion Event shall be

               determined by Motorola, in its sole judgment by notice to the

               Corporation which notice shall be binding upon the Corporation;

 

        (d)     Subject to Section5(a), (i) a holder, other than Motorola, of

               Non-Voting Common will be entitled to convert shares of

               Non-Voting Common into shares of Voting Common in connection

               with any Voting Conversion Event and Motorola will be entitled

               to convert shares of Non-Voting Common into shares of Voting

               Common in connection with any Motorola Transfer, if such holder

               reasonably believes that such Voting Conversion Event or

               Motorola Transfer Event, as the case may be, will be consummated

               and a written request for conversion from any holder of

               Non-Voting Common to the Corporation stating such holder's

               reasonable belief that a Voting Conversion Event or Motorola

               Transfer, as the case may be, shall occur shall be conclusive

               and shall obligate the Corporation to effect such conversion in

               a timely manner so as to enable each such holder to distribute,

               dispose of or sell such shares of Voting Common in connection

               with such Voting Conversion Event or Motorola Transfer, as the

               case may be; provided that the Corporation will not cancel the

               shares of Non-Voting Common so converted before the tenth day

               following such Voting Conversion Event or Motorola Transfer and

               will reserve such shares until such tenth day for reissuance in

               compliance with the following proviso; and provided further

               that, if any shares of Non-Voting Common

 

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               are converted into shares of Voting Common in connection with a

               Voting Conversion Event or a Motorola Transfer and any such

               shares of Voting Common are not actually distributed, disposed

               of or sold pursuant to such Voting Conversion Event or Motorola

               Transfer, such shares of Voting Common which were not so

               distributed, disposed of or sold shall be promptly converted

               back into the same number of shares of Non-Voting Common; and

               (ii) Motorola, at its election, will be entitled to convert any

               or all of its shares of Non-Voting Common into shares of Voting

               Common upon the occurrence of any Motorola Conversion Event

               described in Section 5(c)(ii) hereof.

 

        (e)     Each conversion of shares of Non-Voting Common into shares of

               Voting Common will be effected by the surrender of the

               certificate or certificates representing the shares to be

               converted at the principal office of the Corporation at any time

               during normal business hours, together with a written notice by

               the holder of such shares of Non-Voting Common stating that such

               holder desires to convert the shares, or a stated number of the

               shares, of Non-Voting Common represented by such certificate or

               certificates into shares of Voting Common. Such notice shall

               also state the name or names (with addresses) and denominations

               in which the certificate or certificates for such Voting Common

               are to be issued. Such conversion will be deemed to have been

               effected as of the close of business on the date on which such

               certificate or certificates have been surrendered and such

               notice has been received, and at such time the rights of the

               holder of the converted shares of Non-Voting Common as such

               holder will cease and the person or persons in whose name or

               names the certificate or certificates for such shares of Voting

               Common are to be issued upon such conversion will be deemed to

               have become the holder or holders of record of the shares of

               Voting Common represented thereby.

 

        (f)     Promptly after such surrender and the receipt of such written

               notice, the Corporation will issue and deliver in accordance

               with the surrendering holder's instructions each of the

               following:

 

               (i)     the certificate or certificates representing the shares

                       of Voting Common issuable upon such conversion; and

 

               (ii)    a certificate representing any shares of Non-Voting

                       Common which were represented by the certificate or

                       certificates delivered to the Corporation in connection

                       with such conversion but which were not converted into

                       shares of Voting Common.

 

        (g)     The issuance of certificates representing shares of Voting

               Common received upon conversion of shares of Non-Voting Common

               will be made without charge to the holders of such shares for

               any issuance tax in respect thereof or other cost incurred by

               the Corporation in connection with such conversion and the

               related issuance of Voting Common.

 

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        (h)     The Corporation will not close its books against the transfer of

               shares of Common Stock in any manner which would interfere with

               the timely conversion of any shares of Non-Voting Common.

 

     6.Subdivision or Combination. If the Corporation in any manner subdivides

     or combines the outstanding shares of one class of Common Stock, the

    outstanding shares of the other class of Common Stock will be

    proportionately subdivided or combined.

 

     7.Reservation of Shares. The Corporation shall at all times reserve from

     its authorized Voting Common a sufficient number of shares to provide for

    conversion of all Non-Voting Common from time to time outstanding. If the

    Voting Common issuable upon conversion of the Non-Voting Common is listed

     on any national securities exchange or automated quotation system of NASD,

    the Corporation will cause within 60 days of any such conversion to be

    listed on such exchange or automated quotation system, subject to official

    notice of issuance upon such conversion.

 

Class A Convertible Redeemable Preferred Stock

 

     1.Class A Stated Value. Each share of Class A Convertible Redeemable

Preferred Stock of the par value $.01 per share (the "Class A Preferred Stock")

shall have a stated value of $36.75 (the "Class A Stated Value"). The

Corporation shall issue fractional shares of Class A Preferred Stock upon the

original issuance, transfer or exchange of a Class A Preferred Stock share,

unless the Corporation and the holder of such Class A Preferred Stock share

agree upon a payment in lieu of any such fractional share.

 

     2.Dividends.

 

        2.1 No dividend or other distribution shall be declared or paid on the

Common Stock of the Corporation unless a dividend is declared or paid on each

share of the Class A Preferred Stock in an amount equal to the amount that would

have been paid on the number of shares of Common Stock into which such share of

Class A Preferred Stock would be convertible as of the record date for such

declaration or payment if all such shares of Common Stock had been issued upon

conversion on such record date and such dividends or distributions payable on

the Class A Preferred Stock pursuant to this Section 2.1 shall be declared and

paid in the same medium as that in which the dividends or distributions on the

Common Stock giving rise thereto has been declared and is to be paid.

 

        2.2 In the event that the Corporation's Board of Directors takes action

to diminish, change, amend, or grant exceptions or exclusions from the authority

of the Operations Committee, or to terminate the Operations Committee (a

"Trigger Event"), in a situation other than upon an Approved Trigger Event or a

Rescission Event, then the holders of a majority of Class A Preferred Stock may,

not more than ten days after the day any draft of minutes of the meeting of the

Board of Directors of the Corporation at which such action was taken are first

circulated to all of the members of the Board of Directors for their review,

provide written notice to the Secretary of the Corporation that such event

triggers the accrual of a dividend pursuant to this Section 2.2 (a “Dividend

Event"). The Board of Directors shall have 30 days from the date such notice is

received by the Secretary of the Corporation to take such action to amend or

 

 

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modify the action giving rise to the notice that a Dividend Event has occurred.

If the Dividend Event has not been cured by the end of such 30-dayperiod (the

"Dividend Accrual Date"), then from and after the Dividend Accrual Date,

dividends shall accrue on each outstanding share of Class A Preferred Stock at

the annual rate of twelve percent (12%) of the then current Dividend Base,

compounded monthly from the Dividend Accrual Date until the earlier of the day

such share of Class A Preferred Stock (a) is converted into shares of Voting

Common, (b) is converted into shares of Class C Convertible Redeemable Preferred

Stock, par value $.01 per share ("Class C Preferred Stock"), or (c) is redeemed

by the Corporation. Dividend Base means the Class A Stated Value per share plus

any accrued and unpaid dividends under this Section 2.2 and any declared but

unpaid dividends pursuant to Section 2.1 on that share of Class A Preferred

Stock. Dividends under this Section 2.2 shall be payable out of funds legally

available therefor in cash (or additional shares of Class A Preferred Stock as

provided below) semi-annually on June 30 and December 31 of each year and on the

day immediately prior to the time such share of Class A Preferred Stock is

converted to Voting Common or Class C Preferred Stock (each, a “Dividend Payment

Date") commencing after the Dividend Accrual Date (and, in the case of any

accrued but unpaid dividends that are unpaid as of any Dividend Payment Date, at

such other times and for such interim periods, if any, as determined by the

Board of Directors), except that if any such date is a Saturday, Sunday or legal

holiday then such dividend shall be payable on the next day that is not a

Saturday, Sunday or legal holiday, to holders of record as they appear on the

stock books of the transfer agent for the Corporation on the applicable record

date. Dividends under this Section 2.2 may, at the option of the Corporation, be

paid in additional shares of Class A Preferred Stock. The number of additional

shares of Class A Preferred Stock to be so issued shall be determined by

dividing the amount of dividends to be so paid by the Class A Stated Value and

such additional shares shall be issued and distributed to the applicable holders

of Class A Preferred Stock pro rata (including fractional shares)in accordance

with the amount of dividends due to each such holder pursuant to this Section

2.2. No record date shall be set for payment of any dividends or distributions

in respect of Common Stock of the Corporation or in respect of Preferred Stock

of the Corporation whose right to payment of dividends or distributions is

junior to that of the Class A Preferred Stock unless and until the payment of

all dividends and distributions provided under this Section 2.2shall have been

made to the holders of Class A Preferred Stock.

 

        2.3 No dividends shall be paid or declared and set apart for payment on

any class or series of the Corporation's capital stock ranking, as to dividends,

on a parity with or junior to the Class A Preferred Stock(collectively, "Parity

Dividend Stock") for any period and no purchase, redemption or other acquisition

shall be made by the Corporation of any shares of Parity Dividend Stock unless

and until full cumulative dividends have been, or contemporaneously are, paid or

declared and set apart for such payment on the Class A Preferred Stock for all

dividend payment periods terminating on or prior to the date of payment of such

dividends on the Parity Dividend Stock. When dividends are not paid in full upon

the Class A Preferred Stock and the Parity Dividend Stock, all dividends paid or

declared and set aside for payment upon shares of Class A Preferred Stock and

the Parity Dividend Stock shall be paid or declared and set aside for payment

pro rata so that the amount of dividends paid or declared and set aside for

payment per share on the Class A Preferred Stock and the Parity Dividend Stock

shall in all cases bear to each other the same ratio that accrued and unpaid

dividends per share on the shares of Class A Preferred Stock and on the shares

of Parity Dividend Stock bear to each other.

 

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        2.4 Anything herein to the contrary notwithstanding, and in addition to

and not in limitation of any other provisions or conditions that may restrict

payment of dividends by the Corporation, the Board of Directors shall not

declare and the Corporation shall not pay dividends with respect to the Class A

Preferred Stock (including, without limitation, dividends previously declared

if, at the payment date, the declaration would be a violation hereof)if (A) the

Corporation or any officer or director thereof (i) has received notice of, (ii)

has given notice of or (iii) has knowledge of an "Event of Default" as such term

is defined in any Indenture or under any other agreement for money borrowed by

the Corporation (or as to which the Corporation has guaranteed, or is otherwise

obligated to make payment on, in whole or in part, any borrowing of money by

another party and the terms of any such guarantee or obligation restrict the

payment of dividends by the Corporation), or (B) such an Event of Default would

exist after giving effect to such payment.

 

     3.Class A Liquidation Rights.

 

        3.1 In the event of anyliquidation, dissolution or winding up of the

business of the Corporation, whether voluntary or involuntary,each holder of

Class A Preferred Stock shall be entitled to receive, for eachshare thereof,

out of assets of the Corporation legally available therefor, apreferential

amount in cash equal to (and not more than) the sum of (A) theClass A Stated

Value, plus (B) an amount equal to any dividends accrued pursuantto Section 2.2

that remain unpaid, plus (C) an amount equal to the amount of alldeclared but

unpaid dividends or distributions thereon payable pursuant toSection 2.1. All

preferential amounts to be paid to the holders of Class APreferred Stock in

connection with such liquidation, dissolution or winding up shallbe paid before

the payment or setting apart for payment of any amount for, or thedistribution

of any assets of the Corporation to, the holders of (i) any seriesof Preferred

Stock whose terms provide that the holders of Class A PreferredStock should

receive preferential payment with respect to such distribution (tothe extent of

such preference) or (ii) Common Stock. If in any such distributionthe assets of

the Corporation shall be insufficient to pay the holders of theoutstanding

shares of the Class A Preferred Stock (or the holders of any classor series of

capital stock ranking on a parity with the Class A Preferred Stockas to

distributions in the event of a liquidation, dissolution orwinding up of the

Corporation) the full amounts to which they shall be entitled,such holders

shall share ratably in any distribution of assets in accordancewith the sums

which would be payable on such distribution if all sums payablethereon were

paid in full. In liquidation, shares of Class A Preferred Stockand Class C

Preferred Stock shall rank on a pari passu basis.

 

        3.2 Holders of shares of Class A Preferred Stock shall not be entitled

to receive any amounts with respect to any liquidation,dissolution or winding

up of the Corporation other than the amounts provided in thisSection 3. Neither

a merger nor consolidation of the Corporation into or with anothercorporation

nor a merger or consolidation of any other corporation into orwith the

Corporation, nor a sale, transfer, mortgage, pledge or lease ofall or any part

of the assets of the Corporation shall be deemed to be aliquidation,

dissolution or winding up of the Corporation for purposes of thisSection 3.

 

 

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     4.Class A Voting Rights.

 

        4.1 Except as otherwiserequired by law or as otherwise provided herein,

the holders of Class A Preferred Stock (and the holders of anyother series of

Preferred Stock entitled to vote as a single class with theholders of Voting

Common) shall vote together with the holders of Voting Common as asingle class

on all matters as to which the Voting Common is entitled to vote,and the

holders of Class A Preferred Stock shall be entitled to a numberof votes equal

to the number of shares of Voting Common into which their sharesof Class A

Preferred Stock are, as of the record date for determining sharesentitled to

vote on such matter, convertible pursuant to Section 6 hereof,provided,

however, that the holders of Class A Preferred Stock shall not beentitled to

vote in the election of Directors except as provided in Section4.2.

 

        4.2 The holders ofshares of Class A Preferred Stock, voting separately

as a single class, shall be entitled to elect three Directors, or,if greater,

that number of Directors (rounded up to the nearest whole number)that will

cause the aggregate number of Directors elected by the holders of Class A

Preferred Stock to equal 25% of the entire Board of Directors(including any

vacancies) of the Corporation (the "Class A Directors").Class A Directors shall

be allocated as evenly as possible among all classes of Directorsof the

Corporation. In any election of Directors in which any Class ADirector is to be

elected, the holders of shares of Class A Preferred Stock shallvote solely as a

separate class pursuant to this Section 4.2 and not together withthe holders of

Voting Common pursuant to Section 4.1. Except as provided inSection 4.3, Class

A Directors may only be removed from office by vote of the holdersof a majority

of shares of Class A Preferred Stock outstanding, votingseparately as a single

class. Any vacancy among the Class A Directors may be filled onlyby vote of the

holders of a majority of shares of Class A Preferred Stockoutstanding, voting

separately as a single class, or, so long as any shares of Class APreferred

Stock are outstanding, by vote of the remaining Class A Directorsthen in

office.

 

        4.3 If an eventconstituting Cause occurs with respect to any Class A

Director and such Class A Director has not been removed orreplaced within 10

days after the earlier of the day the Original Majority Holderbecomes aware of

such event or the day the Corporation gives notice to the OriginalMajority

Holder of such an event, the Board of Directors shall have theright, by

majority vote, to remove such Class A Director.

 

        4.4 No amendment to theCertificate of Incorporation which alters or

changes the powers, preferences or rights of the Class A PreferredStock so as

to affect them adversely shall be effective unless it has beenapproved by the

vote of the holders of a majority of shares of Class A PreferredStock

outstanding, voting separately as a single class. The Corporationshall not

issue, or enter into any commitment to issue, shares of Class APreferred Stock

except (i) pursuant to the terms of any agreement in effect on thedate that the

Certificate of Amendment of the Certificate of Incorporation ofthe Corporation

establishing the powers, preferences and rights of the Class APreferred Stock

was originally filed with the Secretary of State of the State ofDelaware, (ii)

in payment of dividends on outstanding shares of Class A PreferredStock as

permitted by Section 2.2 above and (iii) such other issuances orissuance

commitments as have been approved by the vote of the holders of amajority of

the shares of Class A Preferred Stock outstanding, votingseparately as a single

class.

 

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     5.Operations Committee Membership. For so long as (i) there shall be an

Operations Committee, and (ii) the holders of shares of Class APreferred Stock

are entitled to elect at least three Class A Directors, the numberof members of

the Operations Committee shall be fixed at five, and three of suchmembers shall

be Class A Directors. If the size of the Board of Directors isreduced so that

the holders of Class A Preferred Stock are not entitled to electat least three

members of the Board of Directors, or if the Operations Committeehas not been

terminated but the Original Majority Holder and its QualifiedControlled

Affiliates are not entitled to elect at least three members of theBoard of

Directors, so long as there shall be an Operations Committee, then(i) the

majority of the members of the Operations Committee shall beselected from among

the Class A Directors, and (ii) the size of the OperationsCommittee shall be

reduced to the extent required so that the Class A Directors whoserve as

members of the Operations Committee shall constitute a majority ofthe members

of the Operations Committee.

 

     6.Conversion into Voting Common.

 

        6.1 Class A ConversionRight and Mandatory Conversion.

 

           6.1.1 Unless previously converted under Section 6.1.2, each holder

of Class A Preferred Stock may at any time, and from time to time,convert any

or all of such holder's shares of Class A Preferred Stock intofully paid and

non-assessable shares of Voting Common in an amount equal to thequotient of (i)

the aggregate Class A Stated Value of the shares of Class A PreferredStock

which are being converted to Voting Common plus an amount equal tothe amount of

all accrued and unpaid dividends as of the date of conversiondivided by (ii)

the Class A Conversion Price (determined as provided in Section6.2) in effect

at the time of such conversion. In order to exercise theconversion privilege

under this Section 6.1.1, the holder of any shares of Class APreferred Stock to

be converted shall give written notice to the Corporation at itsprincipal

office that such holder elects to convert such shares of Class APreferred Stock

or a specified portion thereof into shares of Voting Common as setforth in such

notice. In the event the Corporation has called the Class APreferred Stock for

redemption in connection with a prospective Change of Control,such notice of

conversion from the holder may condition conversion uponconsummation of such

Change of Control.

 

           6.1.2 All shares of Class A Preferred Stock then outstanding

automatically shall be converted, without further action by any ofthe holders

of shares of Class A Preferred Stock or the Corporation, intoshares of Voting

Common as hereinafter provided upon the soonest to occur of (a)the one hundred

eightieth (180th) day after the expiration of the covenant setforth in Section

8.3(b) of the Securities Purchase Agreement, (b) tenth anniversaryof the

Original Issuance Date, (c) any day after the second anniversaryof the Original

Issuance Date on which the Voting Power Ownership Percentage ofthe Original

Majority Holder and its Qualified Controlled Affiliates exceedstwenty-five

percent (25%) of the total voting power of all outstanding sharesof capital

stock of the Corporation, (d) the occurrence of a Trigger Eventfollowing any of

the actions set forth in Subsections (i) (other than an eventidentified in

Section 3.3(e)(i) of the Securities Purchase Agreement withrespect to Craig O.

McCaw) and (iii) through (vi), inclusive, of the definition of"Approved Trigger

Event" set forth below under the heading Defined Terms, and(e) immediately upon

any sale, transfer or other disposition of Voting Securities bythe Original

Majority Holder or any of its Qualified Controlled Affiliates, if,immediately

following such sale, transfer or disposition, the Voting

 

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<PAGE>   11

 

 

Power Ownership Percentage of the Original Majority Holder and itsQualified

Controlled Affiliates is less than 5%. Except as permitted bySection 8, if

there is any transfer or other disposition of shares of Class APreferred Stock

("Transferred Class A Shares"), directly or indirectly,by the Original Majority

Holder or any Qualified Controlled Affiliate to any Person who isnot a

Qualified Controlled Affiliate (or the continued holding of sharesof Class A

Preferred Stock by any Person who was a Qualified ControlledAffiliate upon such

Person's failure to meet the criteria required to be a QualifiedControlled

Affiliate ("Retained Class A Shares")) (a "Class ATransfer Event"), then,

effective immediately upon such Class A Transfer Event, eachTransferred Class A

Share and/or Retained Class A Share, as the case may be, (otherthan any

Collateral Shares (as defined in Section 9.2), which shall beconverted into

shares of Class C Preferred Stock as provided in Section 9.2)shall

automatically be converted, without further action by any of theholders of

shares of Class A Preferred Stock or the Corporation, into sharesof Voting

Common as hereinafter provided. Upon conversion, shares of Class APreferred

Stock shall convert into fully paid and non-assessable shares ofVoting Common

in an amount equal to the quotient of (i) the aggregate Class AStated Value of

the shares of Class A Preferred Stock which are being converted toVoting Common

divided by (ii) the Class A Conversion Price (determined asprovided in Section

6.2) in effect at the time of such conversion. Upon (or promptlyafter the

Corporation becomes aware of any occurrence or condition resultingin) any

automatic mandatory conversion of any shares of Class A PreferredStock pursuant

to this Section 6.1.2, the Corporation shall promptly giveconfirmatory written

notice to each holder of Class A Preferred Stock whose shares havebeen so

converted at the address of such holder as set forth in therecords of the

Corporation, provided, however, that no failure to give suchconfirmatory notice

nor any defect therein shall affect the effectiveness of anyautomatic mandatory

conversion of any shares of Class A Preferred Stock pursuant tothis Section

6.1.2.

 

           6.1.3 At such time as the certificate or certificates representing

the Class A Preferred Stock which has been converted aresurrendered to the

Corporation, the Corporation shall issue and deliver a certificateor

certificates representing the number of shares of Voting Commondetermined

pursuant to Section 6.1.1 or 6.1.2. In case of conversion underSection 6.1.1 or

Section 6.1.2 of only a part of the shares of Class A PreferredStock

represented by a certificate surrendered to the Corporation, theCorporation

shall forthwith issue and deliver a new certificate for the numberof shares of

Class A Preferred Stock which have not been converted. Until suchtime as the

certificate or certificates representing Class A Preferred Stockwhich has been

converted are surrendered to the Corporation and a certificate orcertificates

representing the Voting Common into which such Class A PreferredStock has been

converted have been issued and delivered, the certificate orcertificates

representing the shares of Class A Preferred Stock which have beenconverted

shall represent the shares of Voting Common into which such sharesof Class A

Preferred Stock have been converted. The Corporation shall pay alldocumentary,

stamp or similar issue or transfer tax due on the issue of sharesof Voting

Common issuable upon conversion of the Class A Preferred Stock.

 

        6.2 TheClass A Conversion Price. The price for the conversion of the

Class A Preferred Stock into Voting Common (the "Class AConversion Price")

shall, subject to adjustment as hereinafter provided, be $12.25for each share

of Voting Common.

 

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<PAGE>   12

 

 

        6.3 Adjustment of TheClass A Conversion Price. The Class A Conversion

Price shall be subject to adjustment as follows:

 

           6.3.1 In case the Corporation shall at any time subdivide or combine

the outstanding shares of Common Stock, or make a dividend orother distribution

on the Common Stock in shares of Common Stock, the Class AConversion Price

shall forthwith be proportionately decreased in the case of asubdivision,

dividend or distribution, or increased in the case of acombination.

 

           6.3.2 Shares of Common Stock issuable by way of dividend or other

distribution on any capital stock of the Corporation shall bedeemed to have

been issued immediately after the opening of business on the dayfollowing the

date fixed for the determination of stockholders entitled toreceive such

dividend or other distribution and without consideration.

 

           6.3.3 Whenever the Class A Conversion Price is adjusted as herein

provided, the Corporation shall forthwith cause a copy of a noticeto be sent by

first-class mail, postage prepaid, to each holder of Class APreferred Stock,

showing in reasonable detail the facts requiring such adjustmentand the Class A

Conversion Price after such adjustment.

 

           6.3.4 No adjustment of the Class A Conversion Price shall be made if

the amount of such adjustment shall be less than five cents pershare of Voting

Common, but in such case any adjustment that would otherwise berequired then to

be made shall be carried forward and shall be made at the time andtogether with

the next subsequent adjustment which, together with any adjustmentso carried

forward, shall amount to not less than five cents per share;provided that if

the Corporation shall at any time subdivide or combine theoutstanding shares of

Common Stock or issue any additional shares of Common Stock as adividend, such

amount of five cents per share (as theretofore increased ordecreased, if such

amount shall have been adjusted in accordance with the provisionsof this

Section 6.3.4) shall forthwith be proportionately increased in thecase of a

combination or decreased in the case of such a subdivision orstock dividend so

as appropriately to reflect the same.

 

           6.3.5 In case of any Organic Change, the holder of each share of

Class A Preferred Stock then outstanding shall thereafter have theright to

receive upon conversion the kind and amount of shares of stock andother

securities and property receivable upon such Organic Change by aholder of the

number of shares of Common Stock which the holder of such share of Class A

Preferred Stock would have had the right to receive uponconversion immediately

prior to such Organic Change, at a price equal to the Class AConversion Price

then in effect pertaining to such share of Class A PreferredStock.

 

           6.3.6 No adjustment of the Class A Conversion Price shall be made

and no deemed conversion into Common Stock as contemplated bySection 6.3.5

shall occur upon the consolidation of the Corporation with or itsmerger,

directly or indirectly, with or into any other corporation if (i)the

corporation resulting from such consolidation or surviving suchmerger shall

have consolidated net worth at least equal to the consolidated networth of the

Corporation immediately before the merger, (ii) the surviving orresulting

corporation shall have no class of shares (either authorized oroutstanding)

ranking prior to or on a parity with any then

 

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<PAGE>   13

 

 

outstanding Class A Preferred Stock (other than any such class ofshares with

terms identical in all material respects to any class of capitalstock of the

Corporation in existence on or prior to the effective time of suchconsolidation

or merger), (iii) the surviving or resulting corporation shallhave authorized

shares of a class or series of preferred stock equal in number andhaving the

same express rights and preferences as any then outstanding sharesof Class A

Preferred Stock, and (iv) each holder of Class A Preferred Stockimmediately

preceding such consolidation or merger shall receive in theconsolidation or

merger the same number of shares with the same rights andpreferences of the

resulting or surviving corporation. In the event of a merger orconsolidation of

the Corporation with or into another corporation the consolidatednet worth of

the Corporation and the consolidated net worth of the resulting orsurviving

corporation each shall be calculated (in the case of suchresulting or surviving

corporation, on a pro forma basis) as of the end of the calendarquarter

immediately preceding the proposed consolidation or merger.

 

           6.3.7 Irrespective of any adjustments in the Class A Conversion

Price or the number or kind of shares purchasable upon conversionof shares of

Class A Preferred Stock, certificates representing shares of ClassA Preferred

Stock theretofore or thereafter issued may continue to express thesame price

and number and kind of shares previously stated in thecertificates for shares

of Class A Preferred Stock.

 

           6.3.8 The Corporation may retain a firm of independent public

accountants of recognized standing, which may be the firmregularly retained by

the Corporation, selected by the Board of Directors of theCorporation, to make

any computation required under this Section 6.3, and acertification by such

firm shall be conclusive evidence of the correctness of anycomputation made

under this Section 6.3.

 

        6.4 FractionalInterests. The Corporation may, but shall not be required

to, issue fractions of shares of Voting Common on the conversionof Class A

Preferred Stock. If any fraction of a share of Voting Commonwould, except for

the provisions of this Section 6.4, be issuable on the conversionof any Class A

Preferred Stock, the Corporation may, in lieu of issuing suchfractional share,

either (a) pay in cash an amount equal to the current value ofsuch fraction,

computed on the basis of (i) if the Voting Common is listed on anational

securities exchange or the NASDAQ-NMS, the last sales price or(ii) if the

Voting Common is not listed on a national securities exchange orthe NASDAQ-NMS

but is regularly quoted in the automated quotation system of theNASD, or any

successor thereto, the last bid price, or if there is no reportedlast bid, the

average of the bid prices, in either case on the last business dayprior to the

date of exercise, or, if such computations cannot be made as aforesaid,as the

Board of Directors of the Corporation may in good faith determineor (b) round

such fraction up to a whole share of Voting Common.

 

     7.Redemption of Class A Preferred Stock.

 

        7.1 Corporation's Rightto Redeem. Upon or at any time after a Change of

Control, all of the outstanding shares of Class A Preferred Stockshall be

redeemable effective not earlier than upon the consummation of anytransaction

that constitutes a Change of Control at the option of theCorporation, out of

funds legally available therefor, in whole but not in part, at

 

                                      13

 

 

<PAGE>   14

 

 

a redemption price of $36.75 per share of Class A Preferred Stock,plus an

amount equal to all accrued or declared but unpaid dividendsthereon (the "Class

A Redemption Price").

 

    7.2 Class A Redemption Notice.

 

           7.2.1 If an event constituting a Change of Control occurs, or the

Corporation's Board of Directors approves, or the Corporationenters into an

agreement providing for, a transaction, event or development thatconstitutes

(or would constitute if consummated) a Change of Control, theCorporation may

call the outstanding shares of Class A Preferred Stock for redemptionand set a

date for the redemption which date shall not be earlier than thedate such

Change of Control is consummated (the "Class A RedemptionDate"). In the event

of a prospective Change of Control, the redemption shall beconditioned upon the

consummation of such Change of Control. Notice of such proposedredemption (the

"Class A Redemption Notice") shall be mailed at least 45days prior to the Class

A Redemption Date to all holders of shares of Class A PreferredStock at their

respective addresses as the same shall appear on the stock recordbooks of the

Corporation. The Class A Redemption Notice shall be conclusivelypresumed to

have been given with respect to the shares of Class A PreferredStock whether or

not the holders thereof receive the Class A Redemption Notice.Each Class A

Redemption Notice shall state (i) the Class A Redemption Date,(ii) the Class A

Redemption Price, (iii) the place or places where such shares of Class A

Preferred Stock are to be surrendered, and (iv) that dividends onshares of

Class A Preferred Stock to be redeemed shall cease to accrue onthe Class A

Redemption Date. No defect in any such notice as to any shares of Class A

Preferred Stock shall affect the proceedings for the redemption ofany shares of

Class A Preferred Stock.

 

           7.2.2 Upon surrender in accordance with the Class A Redemption

Notice of the certificates for any shares of Class A PreferredStock so redeemed

(properly endorsed or assigned for transfer, if the Board ofDirectors shall so

require and the notice shall so state), such shares of Class APreferred Stock

shall be redeemed by the Corporation which shall make payment tothe

surrendering holder in an amount equal to the product of theapplicable Class A

Redemption Price multiplied by the number of shares of Class APreferred Stock

being surrendered by such holder for redemption.

 

           7.2.3 Notwithstanding the foregoing, if the Corporation's Class A

Redemption Notice has been given pursuant to this Section 7 andany holder of

shares of Class A Preferred Stock shall, prior to the close ofbusiness on the

third Business Day preceding the Class A Redemption Date, givewritten notice to

the Corporation in accordance with the provisions of Section 6.1.1that it

desires to convert its shares of Class A Preferred Stock(accompanied by a

certificate or certificates for such shares of Class A PreferredStock, duly

endorsed or assigned to the Corporation), then the conversion ofsuch shares of

Class A Preferred Stock shall become effective as provided inSection 6.

 

        7.3 Payment Prior toClass A Redemption Date.

 

           7.3.1 If such Class A Redemption Notice shall have been duly given

as provided above, or if the Corporation shall have given to thebank or trust

company hereinafter referred to irrevocable authorization to giveor complete

such Class A Redemption Notice, and if

 

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<PAGE>   15

 

 

prior to the applicable Class A Redemption Date the fundsnecessary for such

redemption shall have been deposited by the Corporation with abank or trust

company in good standing (which bank or trust company shall havebeen identified

in a written notice given to the holders whose shares of Class APreferred Stock

are to be redeemed), organized under the laws of the United Statesof America or

a State thereof, having a capital surplus and undivided profitsaggregating at

least $100,000,000 according to its last published statement ofcondition, in

trust for the pro rata benefit of the holders of the shares of Class A Preferred

Stock so called for or otherwise subject to redemption, so as tobe, and to

continue to be, available therefor, then, notwithstanding that anycertificate

for shares of Class A Preferred Stock so called for or otherwisesubject to

redemption shall not have been surrendered for cancellation, allshares of Class

A Preferred Stock so called for or otherwise subject to redemptionshall no

longer be deemed to be outstanding on and after such Class ARedemption Date,

and all rights with respect to such shares shall forthwith ceaseand terminate

at the close of business on such Class A Redemption Date, exceptonly the right

of the holders thereof to receive, out of the funds so set asidein trust, the

amount payable on redemption thereof, without interest. Anyinterest accrued on

any funds so deposited shall be the property of the Corporationand shall be

paid to the Corporation from time to time.

 

           7.3.2 Any funds set aside or deposited, as the case may be, in

accordance with Section 7.3.1 above that remain unclaimed at theend of one year

from the applicable Class A Redemption Date shall be released orrepaid to the

Corporation, after which the holders of the shares of Class APreferred Stock so

called for redemption shall look only to the Corporation forpayment of the

amount payable on redemption thereof, without interest, subject tothe

applicable law of escheat.

 

     8.Transfer Restrictions

 

        8.1 Prohibition onTransfer. No holder of shares of Class A Preferred

Stock shall, directly or indirectly, make any sale, transfer,pledge, assignment

or other disposition of Class A Preferred Stock or any interesttherein, except

for transfers to Qualified Controlled Affiliates or othertransfers to Persons

under circumstances contemplated by Section 8.2.

 

        8.2 Right to Pledge.Shares of Class A Preferred Stock may be assigned

or pledged as collateral to an Eligible Secured Party but only ifthe terms of

the assignment or pledge require, and the Eligible Secured Partyagrees to give,

a written notice to the Chairman, President, and Secretary of theCorporation

not less than five business days before the Eligible Secured Partytakes any

action to sell or otherwise realize on the Class A Preferred Stockheld as

collateral. The notice required by this Section 8.2 shall beeffective when

received.

 

     9.Mandatory Conversion into Class C Preferred Stock.

 

        9.1 Mandatory Conversionof All Shares of Class A Preferred Stock.

Notwithstanding anything herein to the contrary, upon (a) the dateon which the

Original Majority Holder and all Qualified Controlled Affiliateshold, in the

aggregate, less than fifty-one percent (51%) of the total numberof shares of

the Class A Preferred Stock at the time outstanding, or (b) theoccurrence of an

event identified in Section 3.3(e)(i) of the Securities PurchaseAgreement

constituting Cause with respect to Craig O. McCaw, then, effective

 

                                      15

 

 

<PAGE>   16

 

 

immediately upon such event, each outstanding share of Class APreferred Stock,

and each share of Class A Preferred Stock required to be issued inpayment of

all accrued and unpaid dividends on the Class A Preferred Stock tothe date of

the conversion pursuant to Section 2.2, automatically shall beconverted,

without further action by any of the holders of the Class APreferred Stock or

the Corporation, into an equal number of fully paid and nonassessableshares of

Class C Preferred Stock.

 

        9.2 Mandatory Conversionof Collateral Shares. Notwithstanding anything

herein to the contrary, upon any Eligible Secured Party whichholds a pledge of

Class A Preferred Stock or who otherwise holds Class A PreferredStock as

security, taking title to or selling or otherwise transferringshares of the

Class A Preferred Stock (the "Collateral Shares") heldas collateral (a

"Foreclosure Event"), then, effective immediately uponsuch Foreclosure Event,

each Collateral Share shall automatically be converted, withoutfurther action

by any of the holders of Class A Preferred Stock or theCorporation, into one

fully paid and nonassessable share of Class C Preferred Stock.

 

        9.3 Notice and Deliveryof Certificates. Upon (or promptly after the

Corporation becomes aware of any occurrence or condition resultingin) any

automatic mandatory conversion of any shares of Class A PreferredStock pursuant

to this Section 9, the Corporation shall promptly give confirmatorywritten

notice to each holder of Class A Preferred Stock whose shares havebeen so

converted at the address of such holder as set forth in therecords of the

Corporation, provided, however, that no failure to give suchconfirmatory notice

nor any defect therein shall affect the effectiveness of anyautomatic mandatory

conversion of any shares of Class A Preferred Stock pursuant tothis Section 9.

Any such holders shall deliver to the Corporation the certificateor

certificates representing the shares of Class A Preferred Stockthat have been

so converted and such holder shall be entitled to receive inexchange therefor a

certificate or certificates representing the number of shares of Class C

Preferred Stock into which the shares of Class A Preferred Stockso surrendered

have been converted. In case of conversion under Section 9.2 ofonly a part of

the shares of Class A Preferred Stock represented by a certificatesurrendered

to the Corporation, the Corporation shall forthwith issue anddeliver a new

certificate for the number of shares of Class A Preferred Stockwhich have not

been converted. Until such time as the certificate or certificatesrepresenting

Class A Preferred Stock which has been converted are surrenderedto the

Corporation and a certificate or certificates representing theshares of Class C

Preferred Stock into which such shares of Class A Preferred Stockhas been

converted have been issued and delivered, the certificate orcertificates

representing the shares of Class A Preferred Stock which have beenconverted

shall represent the shares of Class C Preferred Stock into whichsuch shares of

Class A Preferred Stock have been converted. The Corporation shallpay all

documentary, stamp or similar issue or transfer tax due on the issueof shares

of Class C Preferred Stock issuable upon conversion of the Class APreferred

Stock.

 

    10. Other Provisions.

 

        10.1 Reservation ofShares. The Corporation shall at all times reserve

from its authorized Voting Common and Class C Preferred Stock asufficient

number of shares to provide for conversion of all Class APreferred Stock from

time to time outstanding. As a condition precedent to the takingof any action

which would cause an adjustment reducing the Class A

 

                                      16

 

 

<PAGE>   17

 

 

Conversion Price, the Corporation will take such corporate actionas may be

necessary in order that it may validly and legally issue toholders of Class A

Preferred Stock upon conversion fully paid and non-assessableshares of Voting

Common at such adjusted Class A Conversion Price. If the Voting Common issuable

upon conversion of the Class A Preferred Stock is listed on anynational

securities exchange or automated quotation system of NASD, theCorporation will

cause within 60 days of any such conversion, all shares reservedfor such

conversion to be listed on such exchange or automated quotationsystem, subject

to official notice of issuance upon such conversion.

 

    10.2   Notice ofCertain Events.  If, at any time,the Corporation shall:

 

           10.2.1 Declare any dividend or other distribution upon its Common

Stock;

 

           10.2.2 Propose any capital reorganization or any reclassification of

capital stock of the Corporation, or any consolidation or mergerof the

Corporation with or into another corporation, or any conveyance ofall or

substantially all the assets of the Corporation, or any voluntarydissolution or

liquidation (or if any involuntary dissolution or liquidation ofthe Corporation

shall be effected); or

 

           10.2.3 Propose to issue to holders of its Common Stock rights to

purchase or subscribe for capital stock or securities convertibleinto or

exchangeable for capital stock; then, and in each such case, theCorporation

shall cause to be given to the holders of the Class A PreferredStock, at least

30 days prior to the date specified in clause (x) or (y) below, asthe case may

be, a notice containing a brief description of the proposed actionand stating

the date on which (x) a record is to be taken for the purpose ofsuch dividend,

distribution or rights, or (y) such reclassification,reorganization,

consolidation, merger, conveyance, dissolution, or liquidation isto take place

and the date, if any is to be fixed, as of which the holders ofCommon Stock of

record shall be entitled to exchange their shares of Common Stockfor securities

or other property deliverable upon such reclassification, reorganization,

consolidation, merger, conveyance, dissolution, or liquidation.Such mailing

shall be a condition precedent to the taking of the actionproposed to be taken

by the Corporation.

 

        10.3 Adjustments toClass A Conversion Price. Before taking any action

which would cause an adjustment reducing the Class A ConversionPrice below the

then par value (if any) of the shares of Voting Common issuableupon conversion

of Class A Preferred Stock, the Corporation will take anycorporate action which

may, in the opinion of its counsel, be necessary in order that theCorporation

may validly and legally issue fully paid and non-assessable sharesof such

Voting Common at such adjusted Class A Conversion Price.

 

        10.4 Cancellation ofShares of Class A Preferred Stock. No share or

shares of Class A Preferred Stock acquired by the Corporation forany reason

shall be reissued, and all such shares shall be cancelled, retiredand

eliminated from the shares of Class A Preferred Stock which theCorporation

shall be authorized to issue.

 

        10.5 Record Holders. TheCorporation and its transfer agent, if any, for

the Class A Preferred Stock may deem and treat the record holderof any shares

of Class A Preferred

 

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<PAGE>   18

 

 

Stock as the sole true and lawful owner thereof for all purposes,and neither

the Corporation nor any such transfer agent shall be affected byany notice to

the contrary.

 

Class  B ConvertiblePreferred Stock

 

     1.Class B Stated Value. Each share of Class B Convertible Redeemable

Preferred Stock of the par value $.01 per share (the "Class BPreferred Stock")

shall have a stated value of $1.00 per share (the "Class BStated Value").

 

     2.Dividends.

 

        2.1 No dividend or otherdistribution shall be declared or paid on the

Common Stock of the Corporation unless a dividend is declared orpaid on each

share of the Class B Preferred Stock in an equal amount per share.Except as and

to the extent provided in the preceding sentence and except forany dividend

pursuant to Section 2.2, which shall rank senior in all respectsto the dividend

rights of any shares of any other series or class of stock of theCorporation,

the dividend and distribution rights of the Class B PreferredStock shall be

subordinate and junior in all respects to the dividend anddistribution rights

of any shares of any other series or class of the preferred stockof the

Corporation, whether now or hereafter authorized, unless the termsof such class

or series shall expressly state that the dividend or distributionrights of

shares of such series or class shall be pari passu with, or junioror

subordinate to, those of the Class B Preferred Stock.

 

        2.2 If at any time theCorporation shall have incurred an obligation

pursuant to Section 3.3(b) of the Securities Purchase Agreement topay a lump

sum payment in the amount of $25,000,000 and any portion of thatamount remains

unpaid 15 days following the date such amount first becomespayable thereunder

(such amount, the "Amount Due"), and funds are legallyavailable for the payment

of dividends, a dividend in the amount of the Amount Due in theaggregate,

automatically and immediately, without further action by the Board,shall be

declared and immediately paid on and with respect to theoutstanding shares of

Class B Preferred Stock (to be shared in an equal amount pershare). Upon such

payment, the obligation pursuant to Section 3.3(b) of theSecurities Purchase

Agreement shall be extinguished in an amount equal to the amountof such

payment.

 

     3.Class B Liquidation Rights.

 

        3.1 In the event of anyliquidation, dissolution or winding up of the

business of the Corporation, whether voluntary or involuntary, eachholder of

Class B Preferred Stock shall be entitled to receive, for eachshare thereof,

out of assets of the Corporation legally available therefor, apreferential

amount in cash equal to One Dollar ($1.00). All preferentialamounts to be paid

to the holders of Class B Preferred Stock in connection with suchliquidation,

dissolution or winding up shall be paid after the payment orsetting apart for

payment of any amount for, or the distribution of any assets ofthe Corporation

to, the holders of the Class A Preferred Stock and the Class CPreferred Stock,

and the holders of any other class or series of preferred stock ofthe

Corporation, whether now or hereafter authorized, unless the termsof such class

or series shall expressly state that the rights of the holders ofthe Class B

Preferred Stock in the distribution of any amount or assets madein connection

with the dissolution, liquidation or

 

                                      18

 

 

<PAGE>   19

 

 

winding up of the Corporation shall be pari passu with, orsuperior or senior

to, the rights of the holders of such other class or series ofpreferred stock,

but the holders of Class B Preferred Stock shall be paid beforethe payment or

setting apart for payment of any amount for, or the distributionof any assets

of the Corporation to, the holders of Common Stock.

 

        3.2 Neither a merger norconsolidation of the Corporation into or with

another corporation nor a merger or consolidation of any othercorporation into

or with the Corporation, nor a sale, transfer, mortgage, pledge orlease of all

or any part of the assets of the Corporation shall be deemed to bea

liquidation, dissolution or winding up of the Corporation forpurposes of this

Section 3.

 

     4.Class B Voting Rights.

 

        4.1 Except as otherwiserequired by law or as otherwise provided herein,

the holders of Class B Preferred Stock shall have no voting rightsor powers. On

all matters as to which they are entitled to vote, the holders of Class B

Preferred Stock shall be entitled to one vote per share of Class BPreferred

Stock and shall vote separately as a single class.

 

        4.2 The holders ofshares of Class B Preferred Stock, voting separately

as a class (but with such holders entitled to vote only after allother classes

or series of the capital stock of the Corporation, which areentitled to vote in

the election of any Directors of the Corporation, have voted inthe election of

Directors at any general or special meeting of the stockholdersheld for such

purpose), shall be entitled to elect that number of Directors, ifany, that

would cause the percentage of the Board of Directors elected bythe holders of

the Class B Preferred Stock to be equal to the aggregate VotingPower Ownership

Percentage of that holder of Class B Preferred Stock who, togetherwith its

Controlled Affiliates (collectively, the "MajorityHolder"), owns a majority of

the outstanding shares of the Class B Preferred Stock (determinedas of the

record date for determining shares eligible to vote on suchmatter) (rounded

down to the nearest whole number of Directors) (such total numberof Directors

entitled to be elected by the holders of the Class B PreferredStock, reduced as

indicated in the following proviso, referred to as the"Proportionate Number of

Directors"); provided, however, that for purposes of thisSection 4.2, the

number of Directors entitled to be elected by the holders of theClass B

Preferred Stock shall be reduced by the number of Directors thatare members of

the Corporation's Board of Directors who were nominees of, or wereelected by,

the Majority Holder (or any of its Affiliates) (whether bycontract or pursuant

to the terms of any other class or series of the Corporation'scapital stock).

Those individuals elected to the Board of Directors by vote of theClass B

Preferred Stock pursuant to this Section 4.2 are referred toherein as the

"Class B Directors." For purposes of this Section 4, theaggregate Voting Power

Ownership Percentage of the Majority Holder shall be calculated(i) with respect

to any election of Directors, as of the date as of which a recordis to be taken

to determine the holders of securities entitled to vote at suchelection, or

(ii) with respect to the filling of any vacancy among the Class BDirectors, as

of the date such vacancy was created.

 

        4.3 Except as providedin Section 4.4, Class B Directors may only be

removed from office by the vote of the holders of a majority ofshares of Class

B Preferred Stock outstanding, voting separately as a singleclass. Any vacancy

among the Class B Directors may be filled only by the vote of theholders of a

majority of shares of Class B Preferred Stock

 

                                      19

 

 

<PAGE>   20

 

 

outstanding, voting separately as a single class, or, so long asany shares of

Class B Preferred Stock are outstanding, by vote of the remainingClass B

Directors then in office.

 

        4.4 If an eventconstituting Cause occurs with respect to any Class B

Director and such Class B Director has not been removed orreplaced within 10

days after the earlier of the day the Original Majority Holderbecomes aware of

such event or the day the Corporation gives notice to the OriginalMajority

Holder of such an event, the Board of Directors shall have theright, by

majority vote, to remove such Class B Director.

 

        4.5 No amendment to theCertificate of Incorporation which alters or

changes the powers, preferences or special rights of the Class BPreferred Stock

so as to affect them adversely shall be effective and no issuanceof any shares

of Class B Preferred Stock, other than as part of the package ofsecurities of

the Corporation issued in connection with the original issuance ofshares of

Class A Preferred Stock to the original holders thereof, shall bepermitted,

unless it has been approved by the vote of the holders of amajority of shares

of the Class B Preferred Stock outstanding, voting separately as asingle class.

 

     5.Operations Committee Membership. If at any time, (i) there shall be an

Operations Committee, and (ii) none of the shares of Class APreferred Stock are

outstanding, a sufficient number of Class B Directors shall bemembers of the

Operations Committee such that a majority of the members of theOperations

Committee shall be Investor Directors.

 

     6.Conversion.

 

        6.1 Upon (i) any sale,transfer or other disposition of Voting

Securities by the Original Majority Holder or any of its QualifiedControlled

Affiliates, if, immediately following such sale, transfer ordisposition, the

Voting Power Ownership Percentage of the Original Majority Holderand its

Qualified Controlled Affiliates is less than 5%, (ii) any date onwhich the

Original Majority Holder and its Controlled Affiliates hold, inthe aggregate,

less than (51%) of the total number of shares of the Class BPreferred Stock at

the time outstanding, (iii) any transfer or other disposition ofany shares of

Class B Preferred Stock by the Original Majority Holder or any ofits Qualified

Controlled Affiliates to any Person who is not a QualifiedControlled Affiliate,

or the continued holding of such shares by any such Person who wasa Qualified

Controlled Affiliate upon such Person's failure to meet thecriteria required to

be a Qualified Controlled Affiliate or (iv) the consummation ofany transaction

that constitutes a Change of Control, each outstanding share of Class B

Preferred Stock automatically shall be converted, without furtheraction by any

of the holders of the Class B Preferred Stock or the Corporation,into one fully

paid and nonassessable share of Common Stock.

 

        6.2 Upon (or promptlyafter the Corporation becomes aware of any

occurrence or condition resulting in) any automatic mandatoryconversion of any

shares of Class B Preferred Stock pursuant to Section 6.1, theCorporation shall

promptly give confirmatory written notice to each holder of ClassB Preferred

Stock whose shares have been so converted at the address of suchholder as set

forth in the records of the Corporation, provided, however, thatno failure to

give such confirmatory notice nor any defect therein shall affectthe

effectiveness of any automatic mandatory conversion of any sharesof Class B

Preferred Stock pursuant to this Section 6. Any such holders shalldeliver to

the Corporation the certificates representing the

 

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<PAGE>   21

 

 

shares of Class B Preferred Stock being so converted and each suchholder shall

be entitled to receive in exchange therefor a certificate orcertificates

representing the number of shares of Common Stock into which theshares of Class

B Preferred Stock so surrendered have been converted. Until suchtime as the

certificate or certificates representing Class B Preferred Stockwhich has been

converted are surrendered to the Corporation and a certificate orcertificates

representing the shares of Common Stock into which such shares of Class B

Preferred Stock has been converted have been issued and delivered,the

certificate or certificates representing the shares of Class BPreferred Stock

which have been converted shall represent the shares of CommonStock into which

such shares of Class B Preferred Stock have been converted. TheCorporation

shall pay all documentary, stamp or similar issue or transfer taxdue on the

issue of such shares of Common Stock issuable upon conversion ofthe Class B

Preferred Stock.

 

     7.Prohibition on Transfer. No holder of shares of Class B Preferred Stock

shall make any sale, transfer, pledge, assignment or otherdisposition of Class

B Preferred Stock or any interest therein, except for transfers toQualified

Controlled Affiliates.

 

     8.Cancellation of Shares of Class B Preferred Stock. No share or shares of

Class B Preferred Stock acquired by the Corporation by any reasonshall be

reissued, and all such shares shall be cancelled, retired andeliminated from

the shares of Class B Preferred Stock which the Corporation shallbe authorized

to issue.

 

Class C Convertible Redeemable Preferred Stock

 

     1.Class C Stated Value. Each share of Class C Convertible Redeemable

Preferred Stock of the par value $.01 per share (the "Class CPreferred Stock")

shall have a stated value of $36.75 (the "Class C StatedValue"). The

Corporation shall issue fractional shares of Class C PreferredStock upon the

original issuance, transfer or exchange of a Class C PreferredStock share,

unless the Corporation and the holder of such Class C PreferredStock share

agree upon a payment in lieu of any such fractional share.

 

     2.Dividends. No dividend or other distribution shall be declared or paid

on the Common Stock of the Corporation unless a dividend isdeclared or paid on

each share of the Class C Preferred Stock in an amount equal tothe amount that

would have been paid on the number of shares of Common Stock intowhich such

share of Class C Preferred Stock would be convertible as of therecord date for

such declaration or payment if all such shares of Common Stock hadbeen issued

upon conversion of the Class C Preferred Stock on such record dateand such

dividends or distributions payable on the Class C Preferred Stockpursuant to

this Section 2 shall be declared and paid in the same medium asthat in which

the dividends or distributions on the Common Stock giving risethereto has been

declared and is to be paid.

 

     3.Class C Liquidation Rights.

 

        3.1 In the event of anyliquidation, dissolution or winding up of the

business of the Corporation, whether voluntary or involuntary,each holder of

Class C Preferred Stock shall be entitled to receive, for eachshare thereof,

out of assets of the Corporation legally available therefor, apreferential

amount in cash equal to (and not more than) the sum of (A) itsClass C Stated

Value, plus (B) an amount equal to the amount of all declared butunpaid

 

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<PAGE>   22

 

 

dividends or distributions thereon payable pursuant to Section2.1. All

preferential amounts to be paid to the holders of Class CPreferred Stock in

connection with such liquidation, dissolution or winding up shallbe paid before

the payment or setting apart for payment of any amount for, or thedistribution

of any assets of the Corporation to, the holders of (i) any seriesof Preferred

Stock whose terms provide that the holders of Class C PreferredStock should

receive preferential payment with respect to such distribution (tothe extent of

such preference) or (ii) Common Stock. If in any such distributionthe assets of

the Corporation shall be insufficient to pay the holders of theoutstanding

shares of the Class C Preferred Stock (or the holders of any classor series of

capital stock ranking on a parity with the Class C Preferred Stockas to

distributions in the event of a liquidation, dissolution orwinding up of the

Corporation) the full amounts to which they shall be entitled,such holders

shall share ratably in any distribution of assets in accordancewith the sums

which would be payable on such distribution if all sums payablethereon were

paid in full. In liquidation, shares of Class A Preferred Stockand Class C

Preferred Stock shall rank on a pari passu basis.

 

        3.2 Holders of shares of Class C Preferred Stock shall not be entitled

to receive any amounts with respect to any liquidation, dissolutionor winding

up of the Corporation other than the amounts provided in thisSection 3. Neither

a merger nor consolidation of the Corporation into or with anothercorporation

nor a merger or consolidation of any other corporation into orwith the

Corporation, nor a sale, transfer, mortgage, pledge or lease ofall or any part

of the assets of the Corporation shall be deemed to be aliquidation,

dissolution or winding up of the Corporation for purposes of thisSection 3.

 

     4.Class C Voting Rights.

 

        4.1 Except as otherwiserequired by law or as otherwise provided herein,

the holders of Class C Preferred Stock (and the holders of anyother series of

Preferred Stock entitled to vote as a single class with the holdersof Voting

Common) shall vote together with the holders of Voting Common as asingle class

on all matters as to which the Voting Common is entitled to vote,and the

holders of Class C Preferred Stock shall be entitled to a numberof votes equal

to the number of shares of Voting Common into which their sharesof Class C

Preferred Stock are, as of the record date for determining sharesentitled to

vote on such matter, convertible pursuant to Section 5 hereof.

 

        4.2 No amendment to theCertificate of Incorporation which alters or

changes, in any way, the powers, preferences or rights of theClass C Preferred

Stock shall be effective if such alteration or change adverselyaffects the

holders of Class C Preferred Stock unless it has been approved bythe vote of

the holders of a majority of shares of Class C Preferred Stockoutstanding,

voting separately as a single class.

 

     5.Conversion into Voting Common.

 

        5.1 Class C ConversionRight and Mandatory Conversion.

 

           5.1.1 Unless previously converted under Section 5.1.2, each holder

of Class C Preferred Stock may at any time, and from time to time,convert any

or all of such holder's shares of Class C Preferred Stock intofully paid and

non-assessable shares of Voting

 

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<PAGE>   23

 

 

Common in an amount equal to the quotient of (i) the aggregateClass C Stated

Value of the shares of Class C Preferred Stock which are beingconverted to

Voting Common divided by (ii) the Class C Conversion Price(determined as

provided in Section 5.2) in effect at the time of such conversion.In order to

exercise the conversion privilege under this Section 5.1.1, theholder of any

shares of Class C Preferred Stock to be converted shall givewritten notice to

the Corporation at its principal office that such holder elects toconvert such

shares of Class C Preferred Stock or a specified portion thereofinto shares of

Voting Common as set forth in such notice. In the event theCorporation has

called the Class A Preferred Stock for redemption in connectionwith a

prospective Change of Control, such notice of conversion from theholder may

condition conversion upon consummation of such Change of Control.

 

           5.1.2 All shares of Class C Preferred Stock then outstanding

automatically shall be converted, without further action by any ofthe holders

of shares of Class C Preferred Stock or the Corporation, intoshares of Voting

Common as hereinafter provided upon the soonest to occur of (a)the one hundred

eightieth (180th) day after the expiration of the covenant setforth in Section

8.3(b) of the Securities Purchase Agreement, (b) tenth anniversaryof the

Original Issuance Date, (c) any day after the second anniversaryof the Original

Issuance Date on which the Voting Power Ownership Percentage ofthe Original

Majority Holder and its Qualified Controlled Affiliates exceedstwenty-five

percent (25%) of the total voting power of all outstanding sharesof capital

stock of the Corporation, (d) the occurrence of a Trigger Eventfollowing any of

the actions set forth in Subsections (i) (other than an eventidentified in

Section 3.3(e)(i) of the Securities Purchase Agreement withrespect to Craig O.

McCaw) and (iii) through (vi), inclusive, of the definition of"Approved Trigger

Event" set forth below under the heading Defined Terms, and(e) immediately upon

any sale, transfer or other disposition of Voting Securities bythe Original

Majority Holder or any of its Qualified Controlled Affiliates, if,immediately

following such sale, transfer or disposition, the Voting PowerOwnership

Percentage of the Original Majority Holder and its QualifiedControlled

Affiliates is less than 5%. If there is any transfer or otherdisposition of

shares of Class C Preferred Stock ("Transferred Class CShares") by the Original

Majority Holder or any Qualified Controlled Affiliate to anyPerson who is not a

Qualified Controlled Affiliate (or the continued holding of sharesof Class C

Preferred Stock by any Person who was a Qualified ControlledAffiliate upon such

Person's failure to meet the criteria required to be a QualifiedControlled

Affiliate ("Retained Class C Shares")) (a "Class CTransfer Event"), then

effective immediately upon such Class C Transfer Event, eachTransferred Class C

Share and/or Retained Class C Share shall automatically beconverted, without

further action by any of the holders of shares of Class CPreferred Stock or the

Corporation, into shares of Voting Common as hereinafter provided.Upon

conversion, shares of Class C Preferred Stock shall convert intofully paid and

non-assessable shares of Voting Common in an amount equal to thequotient of (i)

the aggregate Class C Stated Value of the shares of Class CPreferred Stock

which are being converted to Voting Common divided by (ii) theClass C

Conversion Price (determined as provided in Section 5.2) in effectat the time

of such conversion. Upon (or promptly after the Corporationbecomes aware of any

occurrence or condition resulting in) any automatic mandatoryconversion of any

shares of Class C Preferred Stock pursuant to this Section 5.1.2,the

Corporation shall promptly give confirmatory written notice toeach holder of

Class C Preferred Stock whose shares have been so converted at theaddress of

such holder as set forth in the records of the Corporation,provided, however,

that no failure to give such notice nor any defect therein shallaffect the

 

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<PAGE>   24

 

 

effectiveness of any automatic mandatory conversion of any sharesof Class C

Preferred Stock pursuant to this Section 5.1.2.

 

           5.1.3 At such time as the certificate or certificates representing

the Class C Preferred Stock which has been converted aresurrendered to the

Corporation, the Corporation shall issue and deliver a certificateor

certificates representing the number of shares of Voting Commondetermined

pursuant to Section 5.1.1 or 5.1.2. In case of conversion underSection 5.1.1 of

only a part of the shares of Class C Preferred Stock representedby a

certificate surrendered to the Corporation, the Corporation shallforthwith

issue and deliver a new certificate for the number of shares of Class C

Preferred Stock which have not been converted. Until such time asthe

certificate or certificates representing Class C Preferred Stockwhich has been

converted are surrendered to the Corporation and a certificate orcertificates

representing the Voting Common into which such Class C PreferredStock has been

converted have been issued and delivered, the certificate orcertificates

representing the shares of Class C Preferred Stock which have beenconverted

shall represent the shares of Voting Common into which such sharesof Class C

Preferred Stock have been converted. The Corporation shall pay alldocumentary,

stamp or similar issue or transfer tax due on the issue of sharesof Voting

Common issuable upon conversion of the Class C Preferred Stock.

 

        5.2 Class C ConversionPrice. The price for the conversion of the Class

C Preferred Stock into Voting Common (the "Class C ConversionPrice") shall,

subject to adjustment as hereinafter provided, be $12.25 for eachshare of

Voting Common.

 

        5.3 Adjustment of theClass C Conversion Price. The Class C Conversion

Price shall be subject to adjustment as follows:

 

           5.3.1 In case the Corporation shall at any time subdivide or combine

the outstanding shares of Common Stock, or make a dividend orother distribution

on the Common Stock in shares of Common Stock, the Class CConversion Price

shall forthwith be proportionately decreased in the case of asubdivision,

dividend or distribution, or increased in the case of acombination.

 

            5.3.2 Shares of CommonStock issuable by way of dividend or other

distribution on any capital stock of the Corporation shall bedeemed to have

been issued immediately after the opening of business on the dayfollowing the

date fixed for the determination of stockholders entitled toreceive such

dividend or other distribution and without consideration.

 

           5.3.3 Whenever the Class C Conversion Price is adjusted as herein

provided, the Corporation shall forthwith cause a copy of a noticeto be sent by

first-class mail, postage prepaid, to each holder of Class CPreferred Stock,

showing in reasonable detail the facts requiring such adjustmentand the Class C

Conversion Price after such adjustment.

 

           5.3.4 No adjustment of the Class C Conversion Price shall be made if

the amount of such adjustment shall be less than five cents pershare of Voting

Common, but in such case any adjustment that would otherwise berequired then to

be made shall be carried forward and shall be made at the time andtogether with

the next subsequent adjustment which, together

 

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<PAGE>   25

 

 

with any adjustment so carried forward, shall amount to not lessthan five cents

per share; provided that if the Corporation shall at any timesubdivide or

combine the outstanding shares of Common Stock or issue anyadditional shares of

Common Stock as a dividend, such amount of five cents per share(as theretofore

increased or decreased, if such amount shall have been adjusted inaccordance

with the provisions of this Section 5.3.4) shall forthwith beproportionately

increased in the case of a combination or decreased in the case ofsuch a

subdivision or stock dividend so as appropriately to reflect thesame.

 

           5.3.5 In case of any Organic Change, the holder of each share of

Class C Preferred Stock then outstanding shall thereafter have theright to

receive upon conversion the kind and amount of shares of stock andother

securities and property receivable upon such Organic Change by aholder of the

number of shares of Common Stock which the holder of such share of Class C

Preferred Stock would have had the right to receive uponconversion immediately

prior to such Organic Change, at a price equal to the Class CConversion Price

then in effect pertaining to such share of Class C PreferredStock.

 

           5.3.6 No adjustment of the Class C Conversion Price shall be made

and no deemed conversion into Common Stock as contemplated bySection 5.3.5

shall occur upon the consolidation of the Corporation with or itsmerger,

directly or indirectly, with or into any other corporation if (i)the

corporation resulting from such consolidation or surviving suchmerger shall

have consolidated net worth at least equal to the consolidated networth of the

Corporation immediately before the merger, (ii) the surviving orresulting

corporation shall have no class of shares (either authorized oroutstanding)

ranking prior to or on a parity with any then outstanding Class CPreferred

Stock (other than any such class of shares with terms identical toany class of

capital stock of the Corporation in existence on or prior to theeffective time

of such consolidation or merger), (iii) the surviving or resultingcorporation

shall have authorized shares of a class or series of preferredstock equal in

number and having the same express rights and preferences as anythen

outstanding shares of Class C Preferred Stock, and (iv) eachholder of Class C

Preferred Stock immediately preceding such consolidation or mergershall receive

in the consolidation or merger the same number of shares with thesame rights

and preferences of the resulting or surviving corporation. In theevent of a

merger or consolidation of the Corporation with or into anothercorporation the

consolidated net worth of the Corporation and the consolidated networth of the

resulting or surviving corporation each shall be calculated (inthe case of such

resulting or surviving corporation, on a pro forma basis) as ofthe end of the

calendar quarter immediately preceding the proposed consolidationor merger.

 

           5.3.7 Irrespective of any adjustments in the Class C Conversion

Price or the number or kind of shares purchasable upon conversionof shares of

Class C Preferred Stock, certificates representing shares of ClassC Preferred

Stock theretofore or thereafter issued may continue to express thesame price

and number and kind of shares previously stated in thecertificates for shares

of Class C Preferred Stock.

 

           5.3.8 The Corporation may retain a firm of independent public

accountants of recognized standing, which may be the firmregularly retained by

the Corporation, selected by the Board of Directors of theCorporation, to make

any computation required under this Section 5.3, and acertification by such

firm shall be conclusive evidence of the correctness of anycomputation made

under this Section 5.3.

 

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<PAGE>   26

 

 

        5.4 FractionalInterests. The Corporation may, but shall not be required

to, issue fractions of shares of Voting Common on the conversionof Class C

Preferred Stock. If any fraction of a share of Voting Commonwould, except for

the provisions of this Section 5.4, be issuable on the conversionof any Class C

Preferred Stock, the Corporation may, in lieu of issuing suchfractional share,

either (a) pay cash in an amount equal to the current value ofsuch fraction,

computed on the basis of (i) if the Voting Common is listed on anational

securities exchanger or the NASDAQ-NMS, the last sales price or(ii) if the

Voting Common is not listed on a national securities exchange orthe NASDAQ-NMS

but is regularly quoted in the automated quotation system of theNASD, or any

successor thereto, the last bid price, or if there is no reportedlast bid, the

average of the bid prices, in either case on the last business dayprior to the

date of exercise, or, if such computations cannot be made asaforesaid, as the

Board of Directors of the Corporation may in good faith determineor (b) round

such fraction up to a whole share of Voting Common.

 

     6.Redemption of Class C Preferred Stock.

 

        6.1 Corporation's Rightto Redeem. Upon or at any time after a Change of

Control, all of the outstanding shares of Class C Preferred Stockshall be

redeemable effective not earlier than upon the consummation of anytransaction

that constitutes a Change of Control at the option of theCorporation, out of

funds legally available therefor, in whole but not in part, at aredemption

price of $36.75 per share of Class C Preferred Stock, plus anamount equal to

all accrued or declared but unpaid dividends thereon (the"Class C Redemption

Price").

 

        6.2 Class C RedemptionNotice.

 

           6.2.1 If an event constituting a Change of Control occurs, or the

Corporation's Board of Directors approves, or the Corporationenters into an

agreement providing for, a transaction, event or development thatconstitutes

(or would constitute if consummated) a Change of Control, theCorporation may

call the outstanding shares of Class A Preferred Stock forredemption and set a

date for the redemption which date shall not be earlier than thedate such

Change of Control is consummated (the "Class C RedemptionDate"). In the event

of a prospective Change of Control, the redemption shall beconditioned upon the

consummation of such Change of Control. Notice of such proposedredemption (the

"Class C Redemption Notice") shall be mailed at least 45days prior to the Class

C Redemption Date to all holders of shares of Class C PreferredStock at their

respective addresses as the same shall appear on the stock recordbooks of the

Corporation. The Class C Redemption Notice shall be conclusivelypresumed to

have been given with respect to the shares of Class C PreferredStock whether or

not the holders thereof receive the Class C Redemption Notice.Each Class C

Redemption Notice shall state (i) the Class C Redemption Date,(ii) the Class C

Redemption Price, (iii) the place or places where such shares of Class C

Preferred Stock are to be surrendered, and (iv) that dividends onshares of

Class C Preferred Stock to be redeemed shall cease to accrue onthe Class C

Redemption Date. No defect in any such notice as to any shares of Class C

Preferred Stock shall affect the proceedings for the redemption ofany shares of

Class C Preferred Stock.

 

           6.2.2 Upon surrender in accordance with the Class C Redemption

Notice of the certificates for any shares of Class C PreferredStock so redeemed

(properly endorsed or

 

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<PAGE>   27

 

 

assigned for transfer, if the Board of Directors shall so requireand the notice

shall so state), such shares of Class C Preferred Stock shall beredeemed by the

Corporation which shall make payment to the surrendering holder inan amount

equal to the product of the applicable Class C Redemption Pricemultiplied by

the number of shares of Class C Preferred Stock being surrenderedby such holder

for redemption.

 

         6.2.3Notwithstanding the foregoing, if the Corporation's Class C

Redemption Notice has been given pursuant to this Section 6 andany holder of

shares of Class C Preferred Stock shall, prior to the close ofbusiness on the

third Business Day preceding the Class C Redemption Date, givewritten notice to

the Corporation in accordance with the provisions of Section 5.1.1that it

desires to convert its shares of Class C Preferred Stock(accompanied by a

certificate or certificates for such shares of Class C PreferredStock, duly

endorsed or assigned to the Corporation), then the conversion ofsuch shares of

Class C Preferred Stock shall become effective as provided inSection 5.

 

    6.3 Payment Prior to Class C Redemption Date.

 

         6.3.1 If suchClass C Redemption Notice shall have been duly given as

provided above, or if the Corporation shall have given to the bankor trust

company hereinafter referred to irrevocable authorization to giveor complete

such Class C Redemption Notice, and if prior to the applicableClass C

Redemption Date the funds necessary for such redemption shall havebeen

deposited by the Corporation with a bank or trust company in goodstanding

(which bank or trust company shall have been identified in awritten notice

given to the holders whose shares of Class C Preferred Stock areto be

redeemed), organized under the laws of the United States ofAmerica or a State

thereof, having a capital surplus and undivided profitsaggregating at least

$100,000,000 according to its last published statement ofcondition, in trust

for the pro rata benefit of the holders of the shares of Class CPreferred Stock

so called for or otherwise subject to redemption, so as to be, andto continue

to be, available therefor, then, notwithstanding that anycertificate for shares

of Class C Preferred Stock so called for or otherwise subject toredemption

shall not have been surrendered for cancellation, all shares of Class C

Preferred Stock so called for or otherwise subject to redemptionshall no longer

be deemed to be outstanding on and after such Class C RedemptionDate, and all

rights with respect to such shares shall forthwith cease andterminate at the

close of business on such Class C Redemption Date, except only theright of the

holders thereof to receive, out of the funds so set aside intrust, the amount

payable on redemption thereof, without interest. Any interestaccrued on any

funds so deposited shall be the property of the Corporation andshall be paid to

the Corporation from time to time.

 

         6.3.2 Any fundsset aside or deposited, as the case may be, in

accordance with Section 6.3.1 above that remain unclaimed at theend of one year

from the applicable Class C Redemption Date shall be released orrepaid to the

Corporation, after which the holders of the shares of Class CPreferred Stock so

called for redemption shall look only to the Corporation forpayment of the

amount payable on redemption thereof, without interest, subject tothe

applicable law of escheat.

 

        6.4 Corporation's Rightto Designate a Purchaser. Notwithstanding the

foregoing, if the Corporation is entitled to call for redemptionall of the

outstanding shares of

 

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<PAGE>   28

 

 

Class C Preferred Stock pursuant to Section 6.1, each holder ofClass C

Preferred Stock shall, at the request of the Corporation, sell toa Person

designated by the Corporation all (but not less than all) of itsshares of Class

C Preferred Stock for a cash purchase price equal to the Class CRedemption

Price. No such sale shall occur earlier than the date of theChange of Control

relating to the Corporation's right to call all of the outstandingshares of

Class C Preferred Stock for redemption, and any holder of Class CPreferred

Stock shall be entitled to convert any outstanding shares of ClassC Preferred

Stock into shares of Voting Common as provided in Section 5 bygiving written

notice to the Corporation in accordance with the provisions ofSection 5.1.1

(accompanied by a certificate or certificates for such shares ofClass C

Preferred Stock, duly endorsed or assigned to the Corporation),which conversion

may be conditioned upon the consummation of such Change ofControl.

 

     7.Other Provisions.

 

        7.1 Reservation ofVoting Common. The Corporation shall at all times

reserve from its authorized Voting Common a sufficient number ofshares to

provide for conversion of all Class C Preferred Stock from time totime

outstanding. As a condition precedent to the taking of any actionwhich would

cause an adjustment reducing the Class C Conversion Price, theCorporation will

take such corporate action as may be necessary in order that itmay validly and

legally issue to holders of Class C Preferred Stock uponconversion fully paid

and non-assessable shares of Voting Common at such adjusted ClassC Conversion

Price. If the Voting Common issuable upon conversion of the ClassC Preferred

Stock is listed on any national securities exchange or automatedquotation

system of NASD, the Corporation will cause within 60 days of anysuch conversion

all shares reserved for such conversion to be listed on suchexchange or

automated quotation system, subject to official notice of issuanceupon such

conversion.

 

        7.2 Notice of CertainEvents. If, at any time, the Corporation shall:

 

           7.2.1 Declare any dividend or other distribution upon its Common

Stock;

 

           7.2.2 Propose any capital reorganization or any reclassification of

capital stock of the Corporation, or any consolidation or mergerof the

Corporation with or into another corporation, or any conveyance ofall or

substantially all the assets of the Corporation, or any voluntarydissolution or

liquidation (or if any involuntary dissolution or liquidation ofthe Corporation

shall be effected); or

 

           7.2.3 Propose to issue to holders of its Common Stock rights to

purchase or subscribe for capital stock or securities convertibleinto or

exchangeable for capital stock; then, and in each such case, theCorporation

shall cause to be given to the holders of the Class C PreferredStock, at least

30 days prior to the date specified in clause (x) or (y) below, asthe case may

be, a notice containing a brief description of the proposed actionand stating

the date on which (x) a record is to be taken for the purpose ofsuch dividend,

distribution or rights, or (y) such reclassification,reorganization,

consolidation, merger, conveyance, dissolution, or liquidation isto take place

and the date, if any is to be fixed, as of which the holders ofCommon Stock of

record shall be entitled to exchange their shares of Common Stockfor securities

or

 

                                      28

 

 

<PAGE>   29

 

 

other property deliverable upon such reclassification,reorganization,

consolidation, merger, conveyance, dissolution, or liquidation.Such mailing

shall be a condition precedent to the taking of the actionproposed to be taken

by the Corporation.

 

        7.3 Adjustments to Class C Conversion Price. Before takingany action

which would cause an adjustment reducing the Class C ConversionPrice below the

then par value (if any) of the shares of Voting Common issuableupon conversion

of Class C Preferred Stock, the Corporation will take anycorporate action which

may, in the opinion of its counsel, be necessary in order that theCorporation

may validly and legally issue fully paid and non-assessable sharesof such

Voting Common at such adjusted Class C Conversion Price.

 

        7.4 Cancellation ofShares. No share or shares of Class C Preferred

Stock acquired by the Corporation for any reason shall bereissued, and all such

shares shall be cancelled, retired and eliminated from the sharesof Class C

Preferred Stock which the Corporation shall be authorized toissue.

 

        7.5 Record Holders. TheCorporation and its transfer agent, if any, for

the Class C Preferred Stock may deem and treat the record holderof any shares

of Class C Preferred Stock as the sole true and lawful ownerthereof for all

purposes, and neither the Corporation nor any such transfer agentshall be

affected by any notice to the contrary.

 

Defined Terms

 

     For purposes hereof, the following terms shall have the meanings

specified below:

 

        (a)     "Affiliate"means, as to any Person, another Person that

               directly or indirectly through one or more intermediaries,

               Controls, or is Controlled by, or is under common Control with,

               such Person. For the purposes of this definition, "Control"when

               used with respect to any Person, means the possession, directly

               or indirectly, of the power to direct or cause the direction of

               the management and policiesof such Person, whether through the

               ownership of voting securities, by contract or otherwise; the

               terms "Controlling" and "Controlled" have meaningscorrelative

               to the foregoing; provided, that the term "ControlledAffiliate"

               as used herein includes Craig O. McCaw and any Affiliate of

               Craig O. McCaw that is, at the relevant time, Controlled by

               Craig O. McCaw; and further provided, that the Corporation and

               the Original Majority Holder shall not be deemed to be direct or

               indirect Affiliates of each other.

 

        (b)     "ApprovedTrigger Event" shall mean that the Board of Directors,

               by the lesser of (1) the Required Vote or (2) the vote of a

               majority of all Directors then in office, has diminished,

               changed, amended or granted exceptions or exclusions from the

               authority of the Operations Committee, or terminated the

               Operations Committee, after:

 

               (i)     aCause event applicable to Craig O. McCaw, the Original

                       Majority Holder or any Qualified Controlled Affiliate

                       other than an event that would permit removal of an

                       Investor Director (other

 

                                      29

 

 

<PAGE>   30

 

 

                               than Craig O. McCaw) under Section 3.8 of the

                               Securities Purchase Agreement;

 

                       (ii)    advanceapproval of any such action by the vote

                               of a majority of the members of the Operations

                               Committee;

 

                       (iii)   the failure ofthe Original Majority Holder or

                               any of its Controlled Affiliates to purchase,

                               prior to the expiration of any Option, at least

                                662/3% of the shares of Common Stock that were

                               available for purchase under that Option on the

                               Original Issuance Date (after any adjustments

                               pursuant to Section 1 of suchOption Agreement

                               but disregarding any adjustments pursuant to

                               Section 1 thereof resulting from the failure to

                               exercise in full any preceding Option tranche);

 

                       (iv)    thefailure of the Common Stock Holdings of the

                               Original Majority Holder and its Qualified

                               Controlled Affiliates for (A) any period of 90

                               consecutive days or (B) an aggregate of 100 days

                               in any period of 180 consecutive days, to be at

                               least 66-2/3% of the Original Majority Holder's

                               Common Stock Holdings as of the most recent of

                               (i) the Original Issuance Date and (ii) the date

                               of exercise of any Option, prior to commencement

                               ofsuch 90 or 180 consecutive day period;

 

                       (v)     theOriginal Majority Holder or any of its

                               Affiliates has breached any of the covenants set

                               forth in Section 8.3(b) or 8.3(c) of the

                               Securities Purchase Agreement, or the Original

                               Majority Holder has materially breached its duty

                               to negotiate in good faith with respect to the

                               matters set forth in Section 8.3(d) of the

                               Securities Purchase Agreement;

 

                       (vi)    Craig O.McCaw has breached any of the covenants

                               setforth in Section 8.3(i) of the Securities

                               Purchase Agreement or at any time prior to April

                               4, 2005, Craig O. McCaw shall no longer serve as

                               an Investor Director and as a member of the

                               Operations Committee (other than an event

                               identified in Section 3.3(e)(i) of the

                               Securities Purchase Agreement with respect to

                               Craig O. McCaw); or

 

                       (vii)   the OperationsCommittee Termination Date.

 

               (c)    "Cause" has the meaning set forth in Section 3.3(e) of

                       the Securities Purchase Agreement.

 

               (d)    "Change of Control" shall have occurred if at any time

                       any of the following events shall have occurred:

 

                       (i)     TheCorporation is merged or consolidated or

                               reorganized into or with another corporation or

                               other legal person, and as a result of

 

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<PAGE>   31

 

 

                               such merger, consolidation or reorganization

                               less than a majority of the combined voting

                               power of the then-outstanding securities of such

                               corporation or person immediately after such

                               transaction is held in the aggregate by the

                               holders of Voting Securities of the Corporation

                               immediately prior to such transaction, including

                                VotingSecurities issuable upon exercise or

                               conversion of options, warrants or other

                               securities or rights;

 

                       (ii)    TheCorporation sells or otherwise transfers all

                               or substantially all of its assets to any other

                               corporation or other legal person, and as a

                               result of such sale or other transfer of assets,

                               less than a majority of the combined voting

                               power of the then-outstanding securities of such

                               corporation or person immediately after such

                               sale or transfer is held in the aggregate by the

                               holders of Voting Securities of the Corporation

                               immediately prior to such sale or transfer,

                               includingVoting Securities issuable upon

                               exercise or conversion of options, warrants or

                               other securities or rights;

 

                       (iii)   There is areport filed on Schedule 13D or

                               Schedule 14D-1 (or any successor schedule, form

                               or report), each as promulgated pursuant to the

                               Securities Exchange Act of 1934, as amended (the

                               "Exchange Act"), disclosing that any person (as

                               the term "person" is used in Section 13(d)(3) or

                               Section 14(d)(2) of the Exchange Act) has become

                               thebeneficial owner (as the term "beneficial

                               owner" is defined under Rule 13d-3 or any

                               successor rule or regulation promulgated under

                               the Exchange Act) of securities representing 40%

                               or more of the Voting Securities of the

                               Corporation, including Voting Securities

                               issuable upon exercise or conversion of options,

                               warrants or other securities or rights;

 

                       (iv)    TheCorporation files a report or proxy

                               statement with the Securities and Exchange

                               Commission pursuant tothe Exchange Act

                               disclosing in response to Form 8-K or Schedule

                               14A (or any successor schedule, form or report

                               or item therein) that a change in control of the

                               Corporation has occurred; or

 

                       (v)    During any period of two consecutive years,

                               beginning on the date when Class A Directors

                               first are elected or appointed to the Board of

                               Directors of the Corporation, individuals who at

                               the beginning of any such period constitute the

                               Directors of the Corporation cease for any

                               reason to constitute at least a majority

                               thereof, unless the election, or the nomination

                                forelection by the Corporation's stockholders,

                               of each Director of the Corporation first

                               elected during such period was approved by a

                               vote of atleast two-thirds of the Directors of

                               the Corporation then still in office who were

                               Directors of the Corporation at the beginning of

                               any such period.

 

                                      31

 

 

<PAGE>   32

 

 

               Notwithstanding the foregoing provisions of Subsections (iii)

               and (iv) of this definition, a "Change of Control" shall notbe

               deemed to have occurred solely because (i) the Corporation, (ii)

               an entity in which the Corporation directly or indirectly

               beneficially owns 50% or more of the voting securities, or (iii)

               any Corporation-sponsored employee stock ownership plan or other

               employee benefit plan of the Corporation, either files or

               becomes obligated to file a report or proxy statement under or

               in response to Schedule 13D, Schedule 14D-1, Form 8-K or

               Schedule 14A (or any successor schedule, form or report or item

               therein) under the Exchange Act, disclosing beneficial ownership

               by it of Voting Securities, whether in excess of 50% or

               otherwise, or because the Corporation reports that a change of

               control of the Corporation has or may have occurred or will or

               may occur in the future by reason of such beneficial ownership.

 

               (e)    "Common Stock" shall mean Voting Common and all other

                       classes of the Corporation's common stock.

 

               (f)    "Common Stock Holdings" means (i) the shares of Voting

                       Commonissued by the Corporation to the Original

                       Majority Holder on April 4, 1995 pursuant to the

                       Securities Purchase Agreement plus (ii) the shares of

                       Voting Common issued or issuable as a result of the

                       conversion of the Class A Preferred Stock (and any

                       shares of Class C Preferred Stock into which shares of

                       Class A Preferred Stock have been converted) and/or the

                       Class B Preferred Stock plus (iii) any shares of Voting

                       Common acquired pursuant to exercise of the Options, in

                       each case subject to any adjustments to reflect changes

                       in theCorporation's capital structure.

 

               (g)    "Currently Announced Transactions" shall have the

                       meaning set forth in Section 4.19 of the Securities

                       Purchase Agreement.

 

               (h)    "Eligible Secured Party" shall mean any broker,

                       investment bank, bank or other financial institution to

                       whom shares of Class Preferred Stock have been assigned

                       or pledged as collateral that has agreed, by written

                       agreement in form and substance reasonably satisfactory

                       to the Corporation, (i) to sell to a Person designated

                       by the Corporation, upon the request of the Corporation,

                       all (but not less than all) of any shares of Class C

                       Preferred Stock held by it that the Corporation is

                       entitled to call for redemption pursuant to Section 6.1

                       under the heading Class C Convertible Redeemable

                       Preferred Stock for a cash purchase price equal to the

                       Class C Redemption Price, provided that such sale shall

                        notoccur earlier than the date of the Change of Control

                       relating to the Corporation's right to call the Class C

                       Preferred Stock for redemption and until such purchase

                       the Eligible Secured Party shall be entitled to convert

                       any such shares of Class C Preferred Stock into shares

                       of Voting Common (which conversion may be conditioned

                       upon the consummation of such Change of Control) and

                       (ii) to transfer any shares of Class A Preferred Stock

                       or Class C Preferred Stock, or any interest therein,

                       only to a Person that has agreed, by written agreement

                       in form and substance reasonably

 

                                      32

 

 

<PAGE>   33

 

 

                       satisfactory to the Corporation, (A) to comply with (i)

                       above with respect to any interest in any shares of

                       Class A Preferred Stock or Class C Preferred Stock held

                       by such transferee and (B) not to transfer any interest

                       in sharesof Class A Preferred Stock or Class C

                       Preferred Stock unless the transferee agrees, by written

                       agreement in form and substance reasonably satisfactory

                       to the Corporation, to comply with the terms of this

                       clause (ii) with respect to any interest in any shares

                       of Class A Preferred Stock or Class C Preferred Stock

                       held by such transferee.

 

               (i)     "FirstOption" shall mean the option to acquire up to

                       15,000,000 shares of Voting Common (subject to

                       adjustment as provided therein) on or before the second

                       anniversary of the Original Issuance Date, issued by the

                       Corporation to an Affiliate of the Original Majority

                       Holder on the Original Issuance Date.

 

               (j)    "Indentures" shall mean the Indenture dated as of August

                       15, 1993 between the Corporation and The Bank of New

                       York, as Trustee, the Indenture dated as of February 16,

                       1994 between the Corporation and The Bank of New York,

                       as Trustee, and amendments or supplemental indentures

                       from time to time entered into in accordance with the

                       terms thereof, including those to which the Corporation

                       wouldbecome subject pursuant to the Currently Announced

                       Transactions.

 

               (k)    "Investor Directors" shall mean all Class A Directors,

                       Class B Directors and any other Directors elected as a

                       member of the Board of Directors pursuant to designation

                       by the Original Majority Holder or its Qualified

                       Controlled Affiliates in accordance with the Securities

                       PurchaseAgreement.

 

               (l)    "NASD" shall mean the National Association of Securities

                       Dealers.

 

               (m)    "NASDAQ-NMS" shall mean the NASD Automated Quotation

                       National Market System.

 

               (n)    "Operations Committee Termination Date" shall mean April

                       4, 2005, or, if the Original Majority Holder acts

                       pursuant to Section 3.3(f) of the Securities Purchase

                       Agreementto renew its rights under the Securities

                       Purchase Agreement with respect to the Operations

                       Committee and the Board of Directors approves such

                       renewal by a Required Vote, April 4, 2015.

 

               (o)    "Options" shall mean the First Option, the Second Option

                       and the Third Option.

 

               (p)    "Organic Change" shall mean any of the following

                       actions:

 

                       (i)     areclassification or change of the outstanding

                               shares of Common Stock (other than a change in

                               par value, or from par value to no par

 

                                      33

 

 

<PAGE>   34

 

 

                               value, or from no par value to par value, or as

                               a result of a subdivision or combination, or the

                               authorization of different classes ofCommon

                               Stock);

 

                       (ii)    a sale orconveyance of another corporation of

                               all or substantially all the assets of the

                                Corporation;or

 

                       (iii)   a consolidationof the Corporation with, or

                               merger of the Corporation with or into, another

                               corporation (other than a consolidation or

                               merger contemplated by Section 6.3.6 under the

                               heading Class A Convertible Redeemable Preferred

                               Stock or contemplated by Section 5.3.6 under the

                               heading Class C Convertible Redeemable Preferred

                               Stock).

 

               (q)    "Original Issuance Date" shall mean the date of initial

                       issuance of Class A Preferred Stock.

 

               (r)    "Original Majority Holder" shall mean that holder of

                       Class A Preferred Stock whose Controlled Affiliates, on

                       the Original Issuance Date, owned a majority of the

                       shares ofClass A Preferred Stock and Class B Preferred

                       Stock.

 

               (s)    "Person" means an individual, partnership, corporation,

                       limited liability company, business trust, joint stock

                       company, trust, unincorporated association, joint

                       venture, governmental authority or other entity of

                       whatever nature or a group, including without limitation

                       any pension, profit sharing or other benefit plan or

                       trust.

 

               (t)    "Qualified Controlled Affiliate" means any Controlled

                       Affiliate of the Original Majority Holder that has

                       agreed,by a written agreement in form and substance

                       reasonably satisfactory to the Corporation, to be bound

                       by all the Transaction Agreements (as such term is

                       defined in Section 10.1 of the Securities Purchase

                       Agreement) with respect to its ownership of securities

                       of the Corporation as fully as if it were the Original

                       Majority Holder.

 

               (u)    "Required Vote" shall mean the vote of the lesser of (i)

                       two-thirds of the members of the Board of Directors, or

                       (ii) at least that number of members as equals (A) the

                       total number ofmembers of the Board of Directors minus

                       (B) the sum of (x) the number of Investor Directors,

                       plus (y) the number of Directors who are designees

                       (whether by contract or pursuant to the terms of any

                       class or series of the Corporation's capital stock) of

                       or Affiliates of any Person having a material direct or

                       indirect pecuniary interest (other than in such Person's

                       capacity as a holder of Voting Common) in the matter

                       with respect to which the Required Vote is taken plus

                       (z) one.

 

                                      34

 

 

<PAGE>   35

 

 

               (v)    "Rescission Event" shall mean the following actions if

                       taken pursuant to a Required Vote:

 

                       (i)     anytermination of employment of a person

                               holding the position ofPresident, Chief

                               Operating Officer or Chief Executive Officer who

                               was elected or appointed to that position

                               pursuant to the nomination of the Operations

                               Committee; or

 

                       (ii)    rescissionof any action taken by the Operations

                               Committee.

 

               (w)    "Second Option" shall mean the option to acquire up to

                       15,000,000 shares of Voting Common (subject to

                       adjustment as provided therein) on or before fourth

                       anniversary of the Original Issuance Date issued by the

                       Corporation to the Original Majority Holder on the

                       Original Issuance Date.

 

               (x)    "Securities Purchase Agreement" means the Securities

                        PurchaseAgreement dated as of April 4, 1995 by and

                       among the Corporation, the Original Majority Holder and

                       Craig O. McCaw.

 

               (y)    "Third Option" shall mean the option to acquire up to

                       5,000,000 shares of Voting Common (subject to adjustment

                       as provided therein) on or before sixth anniversary of

                       the Original Issuance Date issued by the Corporation to

                        theOriginal Majority Holder on the Original Issuance

                       Date.

 

               (z)    "Voting Common" shall mean shares of Class A Common

                       Stock, par value $.001 per share.

 

               (aa)    "Voting PowerOwnership Percentage" means the percentage

                       ownership calculated by dividing (i) the aggregate

                       number of votes in the election of Directors to which

                       all shares of Voting Securities owned by the applicable

                       Person or Persons and their respective Controlled

                       Affiliates are entitled, howsoever and whenever

                       acquired, by (ii) the aggregate number of votes in the

                       election of Directors to which all issued and

                       outstanding Voting Securities are entitled. For these

                       purposes: (A) Voting Securities issuable upon exercise

                       or conversion of options, warrants or other securities

                       or rights shall not be included, other than the Class A

                       Preferred Stock, which shall be included based on the

                       number of shares of Voting Common into which such shares

                       of Class A Preferred Stock are convertible as of any

                       date as of which Voting Power Ownership Percentage is

                       calculated for purposes hereof, (B)restricted stock of

                       the Corporation that is not treated by the Corporation

                       as outstanding shall not be included and (C) the

                       Corporation's Class B Common Stock shall be deemed to

                       have one vote per share in the election of Directors.

 

               (bb)   "Voting Securities" shall mean Voting Common and all

                       other classes of capital stock of the Corporation that

                       are entitled to vote generally in the election of

                       directors of the Corporation (including, without

                       limitation, the

 

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<PAGE>   36

 

 

                       Class A Preferred Stock and the Class C Preferred Stock,

                       but excluding the Class B Preferred Stock)."

 

               Preferred Stock

 

               Authority is hereby expressly granted to the Board of Directors

               from time to time to issue the Preferred Stock as Preferred

               Stock of one or more series and in connection with the creation

               of any such series to fix by the resolution or resolutions

                providingfor the issue of shares thereof the designation,

               voting powers, preferences, and relative, participating,

               optional, or other special rights of such series, and the

               qualifications, limitations, or restrictions thereof. Such

               authority of the Board of Directors with respect to each such

               series shall include, but not be limited to, the determination

               of the following:

 

               (a)     thedistinctive designation of, and the number of shares

                       comprising, such series, which number may be increased

                       (except where otherwise provided by the Board of

                       Directors in creating such series) or decreased (but not

                       below the number of shares thereof then outstanding)

                       from time to time by like action of the Board of

                       Directors;

 

               (b)     thedividend rate or amount for such series, the

                       conditions and dates upon which such dividends shall be

                       payable, the relation which such dividends shall bear to

                       the dividends payable on any other class or classes or

                       any other series of any class or classes of stock, and

                       whether such dividends shall be cumulative, and if so,

                       from which date or dates for suchseries;

 

               (c)    whether or not the shares of such series shall be

                       subject to redemption by the Corporation and the times,

                       prices, and other terms and conditions of such

                       redemption;

 

               (d)    whether or not the shares of such series shall be

                       subject to the operation of a sinking fund or purchase

                       fund to be applied to the redemption or purchase of such

                       shares and if such a fund be established, the amount

                       thereof and the terms and provisions relative to the

                       application thereof;

 

               (e)     whetheror not the shares of such series shall be

                       convertible into or exchangeable for shares of any other

                       class or classes, or of any other series of any class or

                       classes, of stock of the Corporation and if provision be

                       made for conversion or exchange, the times, prices,

                       rates, adjustments, and other terms and conditions of

                       such conversion or exchange;

 

                (f)     whether or not theshares of such series shall have

                       voting rights, in addition to the voting rights provided

                       by law, and if they are to have such additional voting

                       rights, the extent thereof;

 

               (g)     therights of the shares of such series in the event of

                       any liquidation, dissolution, or winding up of the

                       Corporation or upon any distribution of its assets; and

 

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<PAGE>   37

 

 

        (h)     any other powers,preferences, and relative, participating,

               optional, or other special rights of the shares of such series,

                andthe qualifications, limitations, or restrictions thereof,

               to the full extent now or hereafter permitted by law and not

               inconsistent with the provisions hereof.

 

        Upon the effectivenessof the filing of this Restated Certificate of

        Incorporation, eachshare of common stock, $.01 par value, of the

        Corporation heretoforeoutstanding shall be reclassified, changed and

        converted into 41,670shares of Voting Common and 17,830 shares of

        Non-Voting Common.

 

     5.The Board of Directors is authorized to make, alter or repeal the

by-laws of the Corporation. Election of directors need not be bywritten ballot.

 

     6.Each person who is or was or had agreed to become a Director or officer

of the Corporation, or each such person who is or was serving orhad agreed to

serve at the request of the Board of Directors or an officer ofthe Corporation

as an employee or agent of the Corporation or as a Director,officer, employee

or agent of another corporation, partnership, joint venture, trustor other

enterprise (including the heirs, executors, administrators orestate of such

person), shall be indemnified by the Corporation to the fullextent permitted by

the General Corporation Law of the State of Delaware or any otherapplicable

laws as now or hereafter in effect. Without limiting thegenerality or effect of

the foregoing, the Corporation may enter into one or moreagreements with any

person which provide for indemnification greater or different thanthat provided

in this Article. No amendment to or repeal of this Article 6 shallapply to or

have any effect on the right to indemnity permitted or authorizedhereunder for

or with respect to claims asserted before or after such amendmentor repeal

arising from acts or omissions occurring in whole or in partbefore the

effective date of such amendment or repeal.

 

     7.To the fullest extent permitted by the Delaware General Corporation Law

as the same exists or may hereafter be amended, a director of thisCorporation

shall not be liable to the Corporation or its stockholders formonetary damages

for breach of fiduciary duty as a director. No amendment to orrepeal of this

Article 7 shall apply to or have any effect on the liability oralleged

liability of any Director of the Corporation for or with respectto any acts or

omissions of such Director occurring prior to such amendment orrepeal.

 

     8.Subject to any rights granted to the holders of any class or series of

stock having preference over the Voting Common and Non-VotingCommon as to

dividends or upon liquidation, the directors shall be divided intothree

classes, as nearly equal in number as possible. Upon theconsummation of the

merger of Nextel with and into the Corporation, each class ofdirectors of

Nextel shall be deemed to have been elected for a term expiring atthe annual

meeting of stockholders of the Corporation at which their terms asdirectors of

Nextel would have expired, with members of each class to holdoffice until their

successors are elected and qualified. At each succeeding annualmeeting of the

stockholders held in the third year following the year of theirelection.

 

     9.Subject to any rights granted to the holders of any class or series of

stock having a preference over the Voting Common and Non-VotingCommon as to

dividends or upon liquidation to elect additional directors underspecified

circumstances, any action required or

 

                                      37

 

 

<PAGE>   38

 

 

permitted to be taken by the stockholders of the Corporation mustbe effected at

a duly called annual or special meeting of the stockholders of theCorporation

and may not be effected by any consent in writing of such stockholders.