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EXHIBIT 10.1
AGREEMENT
This Agreement is dated August 9, 2001 by and among Nextel
Communications, Inc., a Delaware corporation ("COMPANY"), Digital Radio, L.L.C.,
a Washington limited liability company ("INVESTOR") and Xxxxx X. XxXxx
("INDIVIDUAL").
BACKGROUND
A. The parties to this Agreement are also parties to the Securities
Purchase Agreement, dated as of April 4, 1995, (the "SECURITIES PURCHASE
AGREEMENT") pursuant to which Investor acquired Class A Convertible Redeemable
Preferred Stock of the Company ("CLASS A PREFERRED") and shares of Class B
Convertible Preferred Stock of the Company ("CLASS B PREFERRED").
B. Under the Securities Purchase Agreement, under the Restated
Certificate of Incorporation of the Company (the "CERTIFICATE") and under the
Bylaws of the Company (the "BYLAWS"), Investor has rights to representation on
the "Operations Committee," a committee of the Board of the Company. Under
certain circumstances, defined in the Securities Purchase Agreement and the
Certificate, there may be certain consequences if the Board acts to abrogate
the power of the Operations Committee or overrule an Operations Committee
decision.
C. Investor recently made distributions of Company stock to members
of Investor, which could, under certain circumstances, change the rights and
remedies of the parties under the Securities and Purchase Agreement and the
Certificate. The parties desire to adjust their relationships as set forth in
this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants of this
Agreement, the parties agree:
1. Investor represents and warrants that the holdings of the Investor
Group (as defined in the Securities Purchase Agreement) of the Company's Common
Stock (including, Class A Preferred and Class B Preferred on an as converted
basis) are 53,103,794 shares.
2. Section 3.3 of the Securities Purchase Agreement is amended to
delete the introductory paragraph of subsection (c) and clauses (i) through (iv)
and to replace them with the following; the remainder of the Section 3.3
(including, clauses (v), (vi), and (vii) of subsection (c)) remain unchanged.
(c) The lump-sum payment described in Section 3.3(b) shall not
occur in connection with a Trigger Event if (x) the Board, by the vote
of a majority of the non-Investor Directors who are Independent (as
defined in Section 3.2), votes to overrule a decision taken by the
Operations Committee or to take action contrary to the recommendation of
the Operations Committee; or (y) the Trigger Event occurs by the lessor
of (1) the Required Vote or (2) the vote of a majority of all the
members of the Board then in office after:
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(i) a Cause event applicable to Individual or any
member of the Investor Group other than an event
that would permit removal of an Investor
Director (other than Individual) under Section
3.8;
(ii) advance approval of the Trigger Event by the
vote of a majority of the members of the
Operations Committee;
(iii) [Reserved];
(iv) at any time after July 28, 2005, the failure of
the Investor Group's holdings of Common Stock
(including, Class A Preferred and Class B
Preferred on an as converted basis) to be at
least 66-2/3% of Investor's Common Stock
Holdings;
3. The definition of "Common Stock Holdings" in Section 10.1 of the
Securities Purchase Agreement is hereby amended to read in its entirety, as
follows:
"COMMON STOCK HOLDINGS" means a number of shares (from whatever
source) equal to the following number of shares: (A) the Initial Common
Shares plus (B) the Common Stock issued or issuable as a result of the
conversion of the Class A Preferred Shares (and any Class C Preferred
Shares into which Class A Preferred Shares have been converted) and/or
the Class B Preferred Shares plus (C) all Common Stock acquired pursuant
to exercise of the Options by Investor or its assignees, in each case
subject to any adjustments to reflect changes in the Company's capital
structure.
4. The parties confirm that Section 3.6 of the Securities Purchase
Agreement is superseded by the express terms of the Class A Preferred and that,
in the event of any inconsistency, the terms of the Class A Preferred control.
The parties confirm that Section 3.7 of the Securities Purchase Agreement is
superseded by the express terms of the Class B Preferred and that, in the event
of any inconsistency, the terms of the Class B Preferred control.
5. Until July 28, 2005, or until the earlier of the termination of the
Operations Committee or the occurrence of an event constituting Cause (as
defined by Section 3.3(e)(i) of the Securities Purchase Agreement) with respect
to Individual, Individual agrees to serve as a member of the Board of the
Company as one of the Investor Directors and as a member of the Operations
Committee and Investor agrees to designate Individual as one of the Investor
Directors pursuant to Section 3.1 and as a member of the Operations Committee
pursuant to Section 3.2.
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IN WITNESS WHEREOF, the parties have executed or caused this Agreement
to be executed as of the date first above written.
DIGITAL RADIO, L.L.C.
By:
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Name: /s/ C. XXXXX XXXXXX
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Title: Vice President
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NEXTEL COMMUNICATIONS, INC.
By:
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Name: Xxxxxxx X. Xxxxxxx
President & Chief Executive
Officer
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Xxxxx X. XxXxx
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