EXHIBIT 10.7
[EXECUTION COPY]
First Amendment
to
Registration Rights Agreement
This is First Amendment to Registration Rights Agreement, dated as of
June 18, 1997, (this "Amendment") by and among Nextel Communications, Inc., a
Delaware corporation (the "Issuer"), Digital Radio, L.L.C., a Washington
limited liability company (the "Investor"), and Option Acquisition, L.L.C., a
Washington limited liability company ("Option Acquisition"), amending the
Registration Rights Agreement, dated July 28, 1995 by and among the Issuer and
the Investor (the "Original Agreement"). Capitalized terms that are used but
not otherwise defined herein are used as defined in the Original Agreement.
Introductory Statement
Option Acquisition and the Investor are both "controlled" by Xxxxx X.
XxXxx ("Individual"). Issuer has agreed, in the Option Purchase Agreement,
dated as of June 16, 1997, by and among Issuer, its wholly owned subsidiary
Unrestricted Subsidiary Funding Company, and Option Acquisition (the "Option
Purchase Agreement"), that shares of its Class A
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Common Stock, par value $.001 per share ("Issuer Common Stock") acquired by
Option Acquisition upon the exercise of two options being issued to Option
Acquisition on the date of this Amendment (the "New Options") will be entitled
to the benefits of the Original Agreement under certain circumstances, as set
forth in this Agreement.
Agreement
NOW, THEREFORE, in consideration of the foregoing, the covenants of
the Option Purchase Agreement and this Amendment, the parties agree as follows:
1. Expand Definition of Registrable Securities. Recital D of the
Original Agreement is hereby amended to delete the parentheses and
parenthetical text, and Section 1(ix) of the Original Agreement is hereby
amended to read in its entirety:
(x) "Registrable Securities" means, except as otherwise stated in
this Section (x), (A) Issuer Common Shares that the Investor and/or any of
the Qualified Controlled Affiliates may purchase from the Issuer or
receive upon conversion of any of its Issuer Preferred Shares or upon
exercise of any of the Options; (B) Secondary Common Shares that the
Investor and/or any of the Qualified Controlled Affiliates may purchase
form Supplier
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and Secondary Option Shares received upon exercise of the Supplier
Option; and (C) Qualified New Option Shares; but does not include any
other Issuer Common Shares or other securities of the Issuer which may
now or hereafter be held or acquired by any holder of Registrable
Securities. Securities will cease to be Registrable Securities upon the
first to occur of the following: (i) such securities have been sold
pursuant to a registration or pursuant to Rule 144 promulgated by the
Securities and Exchange Commission (or any similar rule then in force);
(ii) with respect to Issuer Common Shares issued upon exercise of the
Incentive Stock Options, to the extent such securities have been
previously registered if they may be resold by the holder thereof without
registration or limitation; and (iii) such securities have been exchanged,
substituted or replaced by securities which have been registered under the
Securities Act. For all purposes of this Agreement, a holder of
Registrable Securities shall be deemed to hold any Registrable Securities
issuable to such holder upon conversion or exercise of, or in exchange
for, Convertible Securities of the types described in clause (A) or (B) of
this Section (x), disregarding any legal, regulatory or
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contractual restrictions on such conversion, exercise or exchange.
2. Add Definition of Qualified New Option Shares. Section 1(xiii) of
the Original Agreement is hereby renumbered to be Section 1(ix), Section 1(x)
is hereby renumbered Section 1(xi). A new Section 1(viii) is added as follows:
(viii) "Qualified New Option Shares" means Issuer Common Shares, if
any, owned by Option Acquisition acquired as a result of the exercise of a
New Option, except that (A) no such shares are Qualified New Option Shares
until January 1, 1999, (B) any such shares shall cease being Qualified New
Option Shares from and after the first day that Individual and/or Members
of the XxXxx Family (as defined in Section 4 of the First Amendment to
Registration Rights Agreement dated as of June 16, 1997 among the Issuer,
Investor and Option Acquisition) no longer control Option Acquisition, (C)
no such shares are Qualified New Option Shares from and after the time
that the number of Issuer Common Shares held by Option Acquisition is less
than 1% of the outstanding Issuer Common Shares and the holding period
under Rule 144 of the Securities Act applicable to Option Acquisition has
been satisfied.
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3. Notices to Option Acquisition. From and after January 1, 1999,
the Issuer will send to Option Acquisition (at the address specified for
notices under the Option Purchase Agreement) a copy of any notice that the
Issuer sends to the Investor under the Original Agreement (as amended by this
Amendment, and as the same may be further amended, the "Investor Registration
Rights Agreement").
4. Change in Control of Option Acquisition. (a) If Option Acquisition
becomes aware that it is no longer controlled by Individual and/or Members of
the XxXxx Family (as defined below), Option Acquisition will notify Issuer of
that fact and this Amendment will be void and without further force or effect.
Solely for purposes of the Introductory Statement (as it relates to control of
Option Acquisition) and Section 4 of this Amendment, and for purposes of
Section 1 (viii) (B) of the Original Agreement (as amended by this Amendment),
the terms "controls" and "controlled by" shall mean that Individual and/or
Members of the XxXxx Family have the sole possession of at least 2/3 of the
voting and investment power over management and policies of Option Acquisition
including, without limitation, the sole authority to make all decisions with
respect to the Option Purchase Agreement and the purchase, sale and voting of
any
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securities of the Company owned or available for purchase by Option
Acquisition pursuant to the Option Purchase Agreement and the New Options. For
purposes of Section 4 of this Amendment and Section 1(viii) of the Original
Agreement (as amended by this Amendment), "Members of the XxXxx Family" means
Xxxxx X. XxXxx, Xxxx X. XxXxx, Xxxxx X. XxXxx, Xxxxxx X. Xxxxxxxx, their
respective lineal descendants, any entity controlled by any such persons
(including, without limitation, KMMK Limited Partnership), and any trust or
foundation established by any such persons that holds all or any part of
such persons' interests in Option Acquisition either during the lifetime or
upon the death of any such persons.
(b) At any time that Option acquisition is exercising any rights as a
holder of Registrable Securities pursuant to the Investor Registration Rights
Agreement, the Issuer may require Option Acquisition and Individual (or a
Member of the XxXxx Family if Individual is deceased on incapacitated at the
time) to certify that Individual and/or Members of the XxXxx Family control
Option Acquisition.
5. Reaffirmation of Original Agreement. Except as expressly stated
in this Amendment, the Original Agreement remains in full force and effect.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed on their behalf, as of the day and year first above written.
NEXTEL COMMUNICATIONS, INC.
By: /s/Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Vice President
DIGITAL RADIO, L.L.C.
By: /s/C. Xxxxx Xxxxxx
OPTION ACQUISITION, L.L.C.
By: /s/C. Xxxxx Xxxxxx
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