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Exhibit 10.15.3
February 26, 1999
Xx. Xxxxxx X. Xxxxxxx
0000 Xxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Re: Employment Agreement
Dear Xx. Xxxxxxx:
This letter is intended to memorialize the basic terms of certain agreed
amendments, supplements and other changes to the terms of the Employment
Agreement, effective on and as of March 5, 1996, as amended by letter agreement
dated March 24, 1998 (such original agreement, as so amended, the "Employment
Agreement"), currently in place between you and Nextel Communications, Inc.
("Nextel"). Such amendments, supplements and other changes are in consideration
for and/or reflect your agreements to extend the term of your employment with
Nextel for an additional year, to enter into a post-employment consulting
relationship with Nextel, and to further defer distribution of 1,000,000 shares
of Nextel Common Stock awarded to you as deferred shares in connection with
your entry into the Employment Agreement.
Specifically, we have agreed that, effective upon the execution of this
letter agreement, certain provisions of the Employment Agreement shall be
amended, supplemented or otherwise changed to read as indicated below:
A. The last sentence of Section 2.b. of the Employment Agreement
shall be replaced in its entirety by the following sentence:
"Notwithstanding the foregoing, (i) Executive may continue to
serve as a director of America Online, Inc. and American
Express Company, (ii) Executive may serve as a director of
other corporations (but while his employment continues
hereunder, only with the consent of the Operations Committee)
and (iii) nothing in the foregoing shall be construed so as to
limit or prohibit personal investments by Executive; provided
that while his employment continues hereunder, such investments
shall not amount to a controlling interest in any entity."
B. Each of Sections 3 and 4.c.(i)(A) of the Employment Agreement
shall be amended by replacing the date "March 5, 1999" each
time it appears in such Sections with the date "March 5, 2000".
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C. The third sentence of Section 4.c.(ii) of the Employment
Agreement shall be replaced in its entirety by the following
sentence: "If Executive's employment hereunder is terminated on
or after March 5, 1999 but prior to March 5, 2006 for any
reason by either Executive or Employer, then Executive's right
to vesting of the Inducement Options shall be forfeited (it
being understood that Executive's right to receive all
1,000,000 Deferred Shares shall then be vested and
nonforfeitable), the Inducement Options shall thereupon expire
unexercised (except as provided in subparagraphs (iii) and (iv)
below); and thereafter Executive shall have no further rights,
claims or interest in or to any of the Inducement Options,
except as provided in subparagraphs (iii) and (iv) below."
D. The third sentence of the first paragraph of Section 4.c.(iv)
of the Employment Agreement shall be replaced in its entirety
by the following sentence: "The Vested Portion shall mean (1)
for any Termination Date prior to March 5, 1999, 2,000,000
multiplied by a fraction, the numerator of which is the number
of days from the Commencement Date to and including the Vesting
Reference Date (as defined below) and the denominator of which
is 1825 (i.e., the number of days from the Commencement Date to
and including the fifth anniversary of the Commencement Date
("Fraction") and (2) for any Termination Date on or after March
5, 1999, (x) 1,000,000 multiplied by the lesser of (A) one or
(B) the Fraction plus (y) 1,000,000 (i.e., the number of vested
and nonforfeitable Deferred Shares)."
E. The first sentence of the penultimate paragraph of Section
4.c.(iv) of the Employment Agreement shall be replaced in its
entirety by the following sentence: "By way of illustrative
example, if Executive's employment were terminated as of March
5, 2000, whether upon prior written notice to Executive
pursuant to Section 10.b.(ii) below or to Employer pursuant to
Section 10.b.(iii) below, then the Vesting Reference Date would
be March 5, 2000 (i.e., the Termination Date); the Vested
Portion would be 1,800,000 (i.e., 1,000,000 x (1460/1825, or
0.80, plus 1,000,000), with 1460 being the number of days from
the Commencement Date to and including the Termination Date);
Executive would already have received (or would have
nonforfeitable rights to receive) all 1,000,000 of the Deferred
Shares pursuant to subparagraphs (i) and (ii) above; and,
accordingly, the number of shares subject to the
Purchase/Exercise Options would be 800,000."
F. The first sentence of the final paragraph of Section 4.c.(iv)
of the Employment Agreement shall be replaced in its entirety
by the following sentence: "The Purchase/Exercise Options (and
any Inducement Options vested pursuant to subparagraph (iii)
above) will
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be exercisable (x) in the event of a termination of Executive's
employment by reason of death, Permanent Disability of
Constructive Termination, for a period of one year following
the Termination Date, (y) in the event of a termination of
employment by Employer for any other reason (but subject to
clause (z) below), for a period of six months following the
Termination Date and (z) in the event of a termination of
employment by Executive or by Employer for any other reason
that is followed by Executive accepting the consulting
relationship contemplated by Section 21 hereof, for the longer
of (1) the period provided in clause (y) above, where
applicable or (2) thirty (30) days after termination of
Executive's post-employment consulting relationship with
Employer pursuant to Section 21."
G. The second sentence of Section 4.c.(v) of the Employment
Agreement shall be replaced in its entirety by the following
sentence: "Any such election shall be irrevocable and set a
specific date for receipt of such Deferred Shares; provided
that if Executive makes such election while he is employed
hereunder and at least six months prior to the end of the
Initial Term, Executive may also specify that, in lieu of
distribution of such applicable Deferred Shares to Executive on
the final day of the Initial Term or any specific later date,
the applicable Deferred Shares shall be distributed to
Executive on (x) such later date on which Executive's
employment hereunder is terminated or (y) such later date on
which Executive's post-employment consulting relationship with
the Company, as described in Section 21 hereof, is terminated,
as indicated by Executive in the written notice delivered to
the Company."
H. The following four sentences shall be inserted immediately
after the existing last sentence of Section 5 of the Employment
Agreement: "For a period of five years after the termination
of Executive's employment hereunder, the Company shall furnish
Executive, free of charge, with two subscriber units (to be
reasonably selected by Executive) and shall provide a full
package of multi-functional wireless communications services
(of the types then generally being marketed by the Company),
including local and long distance interconnect service, also
without charge, to Executive (it being understood that such
free phones and service are intended to be principally for use
by Executive and members of his immediate family). For a
period of one year after the termination of Executive's
employment hereunder (or, if sooner, until the date of a
Disqualifying Event, as defined below), Employer will permit
Executive to continue his participation (on a family coverage
basis) in all group major medical, dental, vision and other
group health benefits plans maintained by Employer and provided
generally to its executive officers, on the same terms as apply
to participation therein by
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management generally and as if Executive's employment hereunder
were continuing during such one year period. At the expiration
of such one year period (but only if no Disqualifying Event has
occurred), Employer shall permit Executive to continue
participation for an additional eighteen month period (or, if
sooner, the date of a Disqualifying Event), by purchasing (at
Executive's sole expense) continuing medical or other
appropriate benefit coverage under Employer's medical benefit
and other welfare benefit plans and programs maintained by it,
but only as and to the extent required by Part 6 of Subtitle B
of Title I of the Employee Retirement Income Security Act of
1974, as amended ("COBRA"), if COBRA were applicable and
required such coverage to be provided during the entirety of
such period. Executive acknowledges and agrees (1) that the
continuation of coverage arrangements described in the
preceding two sentences satisfies any and all rights of
Executive to continuation of coverage under Employer's group
health and welfare benefit plans pursuant to COBRA and (2) that
upon the earliest to occur of (w) Executive's death, (x)
termination of Executive's employment hereunder for Cause, (y)
termination of Executive's consulting relationship with the
Company for Material Breach (as defined in Section 21) and (z)
Executive obtaining employment with any person or entity that
makes available to Executive medical insurance coverage that is
substantially comparable to (including the payment by such
person or entity of the employer's portion of the related
coverage premiums) that then being maintained by Employer (each
of the events described in the foregoing clauses (w), (x), (y)
and (z) a "Disqualifying Event"), Executive's rights under the
preceding two sentences shall automatically and completely
terminate, and Executive then shall be entitled only to such
rights to continue participation in medical or other health or
welfare benefit plans then being maintained by Employer as is
specifically provided elsewhere in this Agreement or as may be
required pursuant to applicable law, including, without
limitation, COBRA."
I. The following proviso shall be inserted immediately prior to
the end of the first sentence of the first paragraph of Section
10(b) of the Employment Agreement: "provided, that on or after
March 6, 1999, Employer shall be entitled to terminate
Executive's employment hereunder for any other reason or for no
reason upon 60 days' prior written notice to Executive."
Clause (ii) of the last sentence in the first paragraph of
Section 10(b) of the Employment Agreement shall be replaced in
its entirety by the following new clause (ii): "(ii) for any
other reason or for no reason upon 60 days prior written notice
to Executive."
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J. The following proviso shall be inserted immediately prior to
the end of the first sentence in the first paragraph of
Section 10(c) of the Employment Agreement: " provided, that on
or after March 6, 1999, Executive shall be entitled to
terminate his employment hereunder for any other reason or for
no reason upon 60 days prior written notice to Employer."
Clause (ii) of the last sentence in the first paragraph of
Section 10(c) of the Employment Agreement shall be replaced in
its entirety by the following new clause (ii): "for any other
reason or for no reason upon 60 days prior written notice to
Employer."
K. The final sentence of Section 14 of the Employment Agreement
shall be deleted in its entirety and replaced by the following
sentence: "Subject to applicable law and upon the consent of
the Board of Directors of Employer or the consent of the
Compensation Committee (subject to any required approval of
the Operations Committee) thereof, this Employment Agreement
may be amended, modified and supplemented by written agreement
of Employer and Executive with respect to any of the terms
contained herein."
L. The following new Sections 21 and 22 shall be inserted
immediately following existing Section 20 of the Employment
Agreement:
"21. Post-Employment Consulting Relationship. Upon any
termination of Executive's employment hereunder (other than
pursuant to Section 10(a) hereof or by Employer for Cause or
Permanent Disability pursuant to Section 10(b) hereof),
Employer shall retain Executive for a period of one year
(commencing on the applicable Termination Date), subject to
earlier termination as provided below, to render services as a
consultant to the Company, all on terms and conditions and
otherwise as provided below.
During the term of his services as a consultant to Employer,
Executive shall report to Employer's Chief Executive Officer
and/or President and shall have such duties as such individuals
shall assign to him from time to time; provided, however, that
such duties shall primarily involve the rendering of advice or
views concerning the business, strategic direction and
commercial opportunities of Employer, and shall not require
Executive to devote more than 8 hours in any month, or more
than 16 hours in any calendar quarter, thereto. Executive shall
be entitled to perform such duties at such times and places as
Executive may reasonably select; provided, that upon reasonable
prior notice, Executive shall make himself available for
telephone conferences with appropriate officers, directors,
employees and agents of Employer and shall be present for
meetings (scheduled with reasonable prior notice) at Employer's
principal offices, if requested, not more than 2 day(s) in any
calendar quarter, so long as such
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scheduled meetings do not unreasonably interfere with
Executive's other activities.
As compensation for Executive's service as a consultant
hereunder, Executive shall be compensated at an annual rate of
$60,000, payable $5,000 on the commencement date of his
consultancy, and on each of the subsequent eleven monthly
anniversaries thereof, subject to proration upon termination of
Executive's services as a consultant hereunder prior to the end
of such one year period. Executive shall be responsible for the
full and timely payment of all federal, state, local and other
taxes or similar charges due in connection with Executive's
compensation as a consultant hereunder. Executive may elect to
terminate this consulting relationship at any time upon written
notice to that effect given to Employer; such notice shall be
effective when received, unless a later effective date is
specified therein. Employer shall be entitled to terminate
this consulting relationship only upon (w) Executive's death or
Permanent Disability; (x) Executive being found to have
violated his obligations under Section(s) 8 and/or 9 of this
Employment Agreement; (y) Executive accepting employment with,
or providing a material amount of services to or for the
benefit of, or having any significant ownership interest in
(which shall be deemed to be present only if Executive owns 5%
or more of the outstanding voting capital stock of any publicly
traded issuer or a controlling interest in any private issuer),
any entity whose principal business, directly or indirectly, is
providing mobile wireless communications services in any market
where Employer or its subsidiaries or affiliates is providing
such services; or (z) Executive being found to have materially
breached (and not subsequently cured such breach of) his
obligations under this consulting relationship (the events and
circumstances described in the preceding clauses (y) and (z)
each being a "Material Breach"), by written notice delivered to
Executive to that effect. The procedures and time periods for
terminating (or contesting bases for termination of) this
consulting relationship shall be as nearly as possible
identical to those applicable to a termination of Executive's
employment hereunder, as set forth herein.
The parties hereto acknowledge that the terms of Employer's
Incentive Equity Plan, as currently in effect, would allow
Executive to continue his participation therein, for both
vesting and exercise purposes, during the period of his service
as a consultant to Employer. Notwithstanding the terms of such
Incentive Equity Plan or of any other agreement or
understanding, which are superseded in their entirety hereby,
the parties hereby confirm that: (i) all options that Executive
(or any of his permitted transferees) holds under the Incentive
Equity Plan and that are vested and unexercised as of the
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Termination Date (including any Inducement Options and any
Original Options that vest on an accelerated basis as of the
Termination Date pursuant to the proviso below) shall continue
to be exercisable by him (or such permitted transferees, as
applicable) until the termination of his consulting
relationship hereunder and, as provided by the Incentive Equity
Plan, for 30 days thereafter (or the applicable longer period
in the case of Executive's death or Permanent Disability, all
as provided under the Incentive Equity Plan) and (ii) if the
Termination Date hereunder occurs prior to March 5, 2000,
Executive (and his permitted transferees, as applicable) shall
be entitled to continued or further vesting in any options
granted to Executive under the Incentive Equity Plan that have
not fully vested at or prior to such Termination Date until the
earlier of (A) the termination of Executive's post-employment
consulting relationship with the Company hereunder and (B)
March 5, 2000; provided that if the closing price of a share of
Employer's common stock on the NASDAQ National Market (or such
other exchange or market on which such shares shall be listed
and traded) on the Termination Date is less than $25.00, then
Executive shall be entitled to accelerated vesting of all
Inducement Options and all Original Options that are not vested
as of such Termination Date; and further provided that in the
event of any conflict or inconsistency between the terms of
this Section 21 and those of Section 4(c) hereof in any
circumstances regarding Executive's exercise and/or vesting
rights as to the Inducement Options or the Original Options,
the terms that provide the most favorable treatment to
Executive shall be controlling."
"22. Forgivable Loan. In partial consideration of Executive's
agreement to extend the term of his employment hereunder,
Employer agrees (at Executive's request) to cause a designated
wholly-owned subsidiary of Employer to advance a loan in the
amount of $500,000 to Executive. Such loan shall have a
scheduled term not to exceed three years, shall be unsecured,
shall bear simple interest (payable on each anniversary date of
the original extension of such loan) at an annual rate of 4.75%
and shall provide that the principal thereof, and all accrued
but unpaid interest thereon, shall be forgiven (and deemed
fully and finally discharged) upon the Termination Date of
Executive's employment hereunder. Such loan shall be evidenced
by appropriate documentation to be entered into between
Employer and Executive, and shall be funded by delivery of cash
or wire transfer of funds, as designated by Executive, promptly
following Executive's delivery of executed loan documents to
Employer. Executive shall be solely responsible for, and shall
hold Employer harmless from and against, any federal, state,
local or other income or other tax liability that arises upon
or by reason of the forgiveness of amounts due on or in respect
of such loan."
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The amendments, supplements and other changes to the Employment Agreement
set forth above shall take effect immediately upon your execution of the
enclosed duplicate copy of this letter, and thereafter all references to the
Employment Agreement in the Employment Agreement or any other agreement between
us shall be deemed a reference to the Employment Agreement, as amended by this
letter. Except as specifically set forth herein, the Employment Agreement is
not modified or changed in any respect, and is confirmed by each of us to
continue in full force and effect as amended hereby. The parties also agree
that, at the request of either party made after March 5, 1999, the Employment
Agreement, as amended by this letter, may be restated in its entirety to
incorporate in a single agreement all terms and conditions of the agreement
currently in effect between the parties, but modifying or deleting those
provisions that are no longer operative or relevant to Executive's service as
an employee or a consultant to the Employer after March 5, 1999, and if such a
restated agreement is prepared and signed by each of the parties, such restated
agreement thereafter shall be deemed the Employment Agreement for all of the
purposes noted above.
To signify your agreement with the foregoing, please sign and return the
enclosed duplicate copy of this letter, keeping a fully executed original copy
for your files.
Very truly yours,
NEXTEL COMMUNICATIONS, INC.
By: /s/Xxxxxx X. Xxxxxx
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Its:Vice President
Agreed:
/s/Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
