Amendment dated as of April 26, 1996 to
Warrant Agreement dated as of November 1, 1991 by and between
Motorola, Inc. and Nextel Communications, Inc. (f/k/a Fleet Call, Inc.)
This Amendment ("Amendment") is entered into as of this 26th day of
April, 1996 by and among Motorola, Inc., a Delaware corporation with
offices at 0000 X. Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (hereinafter
"Motorola," which term shall also mean, where the context requires,
Motorola subsidiaries), Nextel Communications, Inc., a Delaware corporation
with its principal place of business at 000 Xxxxx 00 Xxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000 (hereinafter "Nextel" or the "Company"), Van Xxxxxx Xxxxxxx
Prime Rate Income Trust ("Xxx Xxxxxx"), Nomura Securities International,
Inc. ("Nomura"), Applied Telecommunications Technologies, Inc. ("ATTI"),
Estate of Xxxxx X. Xxxxxxxxxxx ("Xxxxxxxxxxx"), Xxxxx X. Xxxxxxx
("Xxxxxxx") and Xxxxx X. Xxxxx, III ("Xxxxx," and together with Van Kampen,
Nomura, ATTI, Zeytoonjian and Xxxxxxx, collectively referred to herein as
the "Warrant Assignees").
WHEREAS, Motorola and Nextel have previously entered into a Warrant
Agreement dated as of November 1, 1991 (the "Warrant Agreement"), pursuant
to which Nextel granted to Motorola warrants for the purchase of its Class
A common stock, par value $0.001 per share (the "Common Stock"), pursuant
to the terms set forth therein;
WHEREAS, Motorola has agreed to assign a portion of the warrants
granted to it by Nextel under the Warrant Agreement to the Warrant
Assignees and desires to obtain Nextel's consent to such assignment;
WHEREAS, the Company consents to the assignment of warrants to the
Warrant Assignees as provided herein;
WHEREAS, Motorola and the Company desire to confirm the dates of
Commercial Service of the Los Angeles, San Francisco and Chicago Systems,
which also constitute the dates of vesting of the warrants relating to each
such system;
WHEREAS, the Warrant Assignees agree to be bound by the terms of the
Warrant Agreement by signing this Amendment and the accompanying
Certificate of Investor; and
WHEREAS, capitalized terms used herein without definition shall have
the meanings ascribed thereto in the Warrant Agreement;
NOW THEREFORE, in consideration of the premises, and other goods and
valuable consideration, the sufficiency and receipt of which is hereby
acknowledged the parties hereby agrees as follows:
1. Nextel previously granted to Motorola warrants to purchase
3,000,000 shares of Common Stock of Nextel ("Warrant Shares") in the
amounts and becoming exercisable as described in the Warrant Agreement.
(The 3,000,000 shares were increased from 300,000 following the
effectiveness of a 10:1 stock split. All amounts of Warrant Shares set
forth reflect the 10:1 stock split).
2. Of the warrants for 700,000 Warrant Shares relating to the Los
Angeles System, Motorola hereby assigns warrants for an aggregate of
110,000 Warrant Shares to the Warrant Assignees as follows:
(a) Xxx Xxxxxx: 60,000 Warrant Shares;
(b) Nomura: 30,833 Warrant Shares;
(c) ATTI: 2,313 Warrant Shares;
(d) Zeytoonjian 6,552 Warrant Shares;
(e) Xxxxxxx: 6,552 Warrant Shares; and
(f) Xxxxx: 3,750 Warrant Shares.
The Company hereby acknowledges such assignment and agrees to issue
warrant certificates to each Warrant Assignee for the respective number of
Warrant Shares set forth above and to issue a replacement warrant
certificate to Motorola for the 590,000 Warrant Shares retained by
Motorola, each warrant certificate to be in the form set forth in Exhibit A
hereto, concurrently with the execution of this Amendment.
3. The Company hereby acknowledges that all of the warrants relating
to the Los Angeles system vested on October 1, 1994 following first
Commercial Service of the System for Los Angeles. The Company further
acknowledges that the warrants relating to the San Francisco system (which
warrants have not been transferred by Motorola), likewise vested on October
1, 1994 following first Commercial Service of the System for San Francisco,
and the warrants relating to the Chicago system (which warrants have not
been transferred by Motorola), vested on October 10, 1994, following first
Commercial Service of the System for Chicago. Finally, the Company
acknowledges that the warrants relating to the New York system (which
warrants have not been transferred by Motorola) vested on December 20, 1995
following first Commercial Service of the System for New York.
4. The Company and Motorola acknowledge that the registration rights
provisions of the Warrant Agreement have been superseded and replaced in
their entirety by the registration rights provisions of that certain
Registration Rights Agreement dated July 28, 1995 between Nextel and
Motorola (the "Registration Rights Agreement"). The Company and Motorola
further agree that the registration rights set forth in Section 2 of the
Registration Rights Agreement with respect to the Registrable Securities
(as defined in the Registration Rights Agreement) issuable upon exercise of
the warrants covered by this Agreement are not transferable by Motorola;
provided however that with respect to the warrants transferred to the
Warrant Assignees, the Piggyback Registration rights pursuant to Section
2.1 of the Registration Rights Agreement shall be transferred to the
Warrant Assignees.
5. The definition of "Holder" as used in the Warrant Agreement is
hereby amended to include all of the Warrant Assignees, as fully as if they
were originally parties to the Warrant Agreement, and each of such Warrant
Assignees, by executing this Amendment in the spaces provided below, agrees
to be bound by the terms of the Warrant Agreement in all respects as if
such Warrant Assignee had executed the Warrant Agreement, except that:
(a) the warrant amounts and vesting provisions set
forth in Section 1 of the Warrant Agreement shall
not apply to the Warrant Assignees and shall apply
only to Motorola;
(b) the Warrant Assignees shall have no Requested
Registration rights pursuant to Section 2.2 of the
Registration Rights Agreement; and
(c) the Piggyback Registration rights pursuant to Section
2.1 of the Registration Rights Agreement are not
transferable by the Warrant Assignees.
6. Whenever any notice is to be given to a Holder in accordance with
the terms of the Warrant Agreement or the Registration Rights Agreement,
such notice shall be given to Motorola and to the Warrant Assignees at the
addresses provided below their respective signatures in this Amendment or
at such address as the Warrant Assignees shall provide to the Company in
writing, in each case in accordance with the terms of the Registration
Rights Agreement.
7. Motorola may, at its option, extend the exercise period of any
warrant issued pursuant to the Warrant Agreement and outstanding as of the
date of this Amendment by delivering a written notice of extension
("Extension Notice") to the Company no later than the expiration date and
time for the exercise of such warrant. Motorola may extend the exercise
period of any such warrant for an additional two years (to begin at the
expiration date of the warrant), so that such warrant shall expire five
years from the date of first Commercial Service for the Area to which such
warrant relates. Upon receipt of an Extension Notice in substantially the
form set forth in Exhibit B hereto, the Company shall deliver to the Holder
of the respective warrant a replacement warrant reflecting the extended
exercise period. The rights set forth in this Section 7 shall be
exercisable solely by Motorola and shall not be assignable or transferable
by Motorola.
8. The Warrant Agreement, as amended by this Amendment, and the
warrant certificates constitute the entire understanding of the parties
with respect to the subject matter of the Warrant Shares and supersedes all
prior discussions, agreements and representations, whether oral or written,
and whether or not executed by Motorola and Nextel.
9. It is understood and agreed that the new warrant certificates being
issued concurrently with this Amendment replace the warrant certificates
issued to Motorola by Nextel pursuant to the Warrant Agreement and that the
original warrant certificates shall be returned by Motorola to Nextel
simultaneously with the delivery of the new warrant certificates. It is
further understood that the warrant certificates for the warrants that have
not yet vested will be issuable to Motorola upon first Commercial Service
of the remaining systems, pursuant to the terms of the Warrant Agreement.
10. Nothing herein contained shall in any way alter, waive, annul,
vary or affect any terms, conditions or provisions of the Warrant
Agreement, except as specifically provided herein or in the Certificate of
Investor, it being the intent of the parties hereto that all of the terms,
conditions, and provision of the Warrant Agreement shall continue in full
force and effect, except as hereby amended.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly executed officers
or representatives as of the day and year first above written.
MOTOROLA, INC. NEXTEL COMMUNICATIONS, INC.
By:________________________ By: _________________________
Name: ________________ Name: ________________
Title: _______________ Title: _______________
NOMURA SECURITIES VAN XXXXXX XXXXXXX
INTERNATIONAL, INC. PRIME RATE INCOME TRUST
By:________________________ By:__________________________
Name:_________________ Name:________________
Title:________________ Title:_______________
Address: Address:
2 World Financial Center - Bldg. 0 Xxx Xxxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000 Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
APPLIED TELECOMMUNICATIONS ESTATE OF XXXXX X. XXXXXXXXXXX
TECHNOLOGIES, INC.
By:_______________________ By:________________________
Name:________________ Name:_______________
Title:_______________ Title:______________
Address: Address:
00 Xxxxxxx Xxxxxx c/o Xxxxxx Xxxxxxxxxxx, Executrix
Xxxxxxxxx, XX 00000 of the Estate of Xxxxx X.
Xxxxxxxxxxx
00 Xxxxxxx Xxxx
Xxxxx, XX 00000
_________________________ ___________________________
XXXXX X. XXXXX, III XXXXX X. XXXXXXX
Address: Address:
X.X. Xxx 000 00 Xxxx Xxx Xxxxx
Xxxxx, XX 00000 Xxxxxxx, XX 00000
EXHIBIT A
to Amendment to Warrant Agreement by and among
Nextel Communications, Inc., Motorola, Inc., Van Xxxxxx Xxxxxxx Prime Rate
Income Trust, Nomura Securities International, Inc.,
Applied Telecommunications Technologies, Inc., Estate of Xxxxx
X. Xxxxxxxxxxx, Xxxxx X. Xxxxxxx and Xxxxx X. Xxxxx, III
FORM OF WARRANT CERTIFICATES
[FORM OF WARRANT CERTIFICATES FOR L.A. SYSTEM]
NEITHER THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES
ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 0000 XX XXX XXXXXX XXXXXX XX XXXXXXX. SUCH SECURITIES MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
Identifying number: W-LA
Warrant date: _______, 1996
WARRANT FOR COMMON STOCK
THIS CERTIFIES THAT for value received, ---, the registered holder
hereof (the "Holder"), is the owner of this Warrant, which entitles the
Holder to purchase, subject to the provisions set forth below, ---, fully-
paid and nonassessable shares ("Warrant Shares") of Class A Common Stock,
$0.001 par value (the "Common Stock") (for an exercise price and subject to
adjustments as determined in accordance with the Warrant Agreement referred
to below), of Nextel Communications, Inc., a Delaware corporation (the
"Company").
The Terms and Conditions governing this Warrant and the rights of the
Holder are set forth in the Warrant Agreement dated as of November 1, 1991
by and between Motorola, Inc. and the Company, as amended by the Amendment
to the Warrant Agreement dated as of ---, 1996 by and among the Company,
Motorola, Inc. and the Warrant Assignees named therein, which Terms and
Conditions are hereby incorporated herein by reference.
The Warrant issued hereunder is a portion of the Warrants pertaining
to the Los Angeles System, and is exercisable until 5:00 P.M. (New York
time) on October 1, 1997.
This Warrant, together with other Warrants issued concurrently
herewith, replaces the Warrant dated November 1, 1991, previously issued by
the Company to Motorola, Inc.
IN WITNESS WHEREOF, the company has caused this Warrant to be signed
by it Vice President and attested to by its Assistant Secretary.
NEXTEL COMMUNICATIONS, INC.
By:________________________
Name:
Title: Vice President
Attest:
_____________________________
Name:
Title: Assistant Secretary
EXHIBIT B
to Amendment to Warrant Agreement by and among
Nextel Communications, Inc., Motorola, Inc., Van Xxxxxx Xxxxxxx Prime Rate
Income Trust, Nomura Securities International, Inc.,
Applied Telecommunications Technologies, Inc., Estate of Xxxxx
X. Xxxxxxxxxxx, Xxxxx X. Xxxxxxx and Xxxxx X. Xxxxx, III
FORM OF EXTENSION NOTICE
[FORM OF EXTENSION NOTICE]
Pursuant to Section 7 of the Amendment dated as of April 19, 1996 to
the Warrant Agreement dated as of November 1, 1991 by and between Motorola,
Inc. and Nextel Communications, Inc. (f/k/a Fleet Call, Inc.), Motorola,
Inc. hereby extends the exercise period of Warrant Number ______ relating
to the _______ system for an additional two-year period, so that such
warrant shall expire five years from the date of first Commercial Service
of the System for __________ and shall be exercisable until 5:00 P.M. (New
York time) on _______________.
Date: ____________________ MOTOROLA, INC.
By: _________________________
Name:____________________
Title:___________________
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