Exhibit 10.18(f)
NEXTEL PARTNERS, INC.
STOCK OPTION AGREEMENT
(SENIOR MANAGER)
STOCK OPTION AGREEMENT dated as of _______________, between Nextel
Partners, Inc., a Delaware corporation (the "Company"), and ___________, a
senior manager of the Company or a Parent Corporation or a Subsidiary of the
Company (the "Optionee").
WHEREAS, the Company has adopted the 1999 Nonqualified Stock Option
Plan initially effective as of January 29, 1999 and amended and restated from
time to time (the "Plan") a copy of which has been provided to the Optionee;
WHEREAS, the committee of the Board of Directors of the Company
responsible for administering and making grants under the Plan has determined
that the Optionee is eligible to receive, and should receive as an inducement to
join the Company, to remain in the service of the Company or its Subsidiaries
and as an incentive for increased efforts during such service, options to
purchase shares of the Company's Class A Common Stock, par value $.001 per share
(the "Shares"), subject to the Plan and the terms set forth herein (the
"Option");
WHEREAS, if the Optionee is a Director of the Company, the grant of
said Option has been approved with the Optionee abstaining from voting;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Definitions. To the extent any capitalized words used in this
Agreement are not defined, they shall have the definitions stated for them in
the Plan. As used herein, the following terms shall have the following meanings
set forth below:
"Cause" means (i) the Optionee's conviction of a felony evidencing
criminal dishonesty or moral turpitude, (ii) a willful and material breach of
the Optionee's duty of loyalty to the Company or any of its Subsidiaries or
(iii) after 20 business days following the Optionee's receipt of a written
notification from the Company specifying the particulars in reasonable detail,
the Optionee's failure to comply with or to cure, as applicable, (A) a willful
and material refusal to comply with specific written directions of the Board
consistent with the Optionee's employment agreement with the Company or any
Subsidiary of the Company and capable of being performed by him or (B) a willful
and material breach of the Optionee's duty of due care to the Company.
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"Change in Control of the Company" means the occurrence of any of
the following events:
(a) any person or group (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act and the regulations thereunder) (i) is or
becomes the Beneficial Owner of more than 50% of the total Voting Stock or
Total Common Equity of the Company, or (ii) otherwise has the power to
direct the management and policies of the Company, directly or through one
or more intermediaries, whether through the ownership of voting
securities, by contract or otherwise, except that no change of control
will be deemed to have occurred under this clause (ii) as a result of
customary rights granted (A) in any indenture, credit agreement or other
agreement for borrowed money or (B) to holders of non-convertible,
mandatorily redeemable, preferred stock unless and until action occurs
that would otherwise cause a "Change in Control of the Company" as herein
defined, provided that such rights were granted pursuant to a transaction
in the financial markets and not as part of a strategic alliance or
similar transaction;
(b) the Company sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any Person
(other than to a direct or indirect wholly owned subsidiary of the
Company);
(c) the Company, directly or indirectly, consolidates with, or
merges with or into, another Person, or any Person, directly or
indirectly, consolidates with, or merges with or into, the Company, and
pursuant to such transaction (or series of transactions) either: (i) the
outstanding Voting Stock of the Company is converted into or exchanged for
cash, securities or other property, but excluding a transaction (or series
of transactions) where (A) the outstanding Voting Stock of the Company is
converted into or exchanged for Voting Stock of the surviving or
transferee Person and (B) the holders of Voting Stock of the Company
immediately preceding such transaction receive more than 50% of the total
Voting Stock and Total Common Equity of the surviving or transferee Person
in substantially the same relative proportions as such holders had prior
to such transaction; or (ii) new shares of Voting Stock of the Company are
issued so that immediately following such transaction, the holders of
Voting Stock of the Company immediately preceding such transaction own
less than 50% of the Voting Stock and Total Common Equity of the surviving
Person; or
(d) during any period of two consecutive years following the Closing
Date, individuals who at the beginning of such period constituted the
board of directors of the Company (together with any directors who are
members of the board of directors of the Company on the date of the
Closing, and any new directors whose election by such board of directors
or whose nomination for election by the stockholders of the Company was
approved by a vote of 66-2/3% of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason
to constitute a majority of the board of
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directors of the Company then in office; provided, that no change in the
composition of the Board in connection with the Closing, or by reason of
any substitution of one director for another so long as both directors are
nominated by the same Person, shall constitute a Change in Control of the
Company for purposes of this paragraph (d).
Notwithstanding the foregoing, no "Change of Control of the Company"
shall occur merely by reason of any creditor of the Company foreclosing on or
otherwise causing the sale, transfer or other disposition of all or any
substantial part of the Company's assets (including, without limitation, the
Company's equity interests in its subsidiaries).
"Change in Control of Nextel" means the occurrence of any of the
following events:
(a) any person or group (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act and the regulations thereunder) (i) is or
becomes the Beneficial Owner of more than 50% of the total voting stock of
Nextel ordinarily entitled to vote in the election of directors ("Nextel
Voting Stock") or Total Common Equity of Nextel, or (ii) otherwise has the
power to direct the management and policies of Nextel, directly or through
one or more intermediaries, whether through the ownership of voting
securities, by contract or otherwise (without limiting the generality of
this clause (ii), any person or group that succeeds to the rights
currently held by Xxxxx X. XxXxx and his Affiliates in respect of Nextel,
or otherwise has powers and rights comparable thereto, shall be deemed for
purposes of this definition to have the power to direct the management and
policies of Nextel), except that no change of control will be deemed to
have occurred under this clause (ii) as a result of customary rights
granted (A) in any indenture, credit agreement or other agreement for
borrowed money unless and until there has been a default under the terms
of that agreement and the trustee or lender exercises the rights granted
therein or (B) to holders of non-convertible, mandatorily redeemable,
preferred stock unless and until action occurs that would otherwise cause
a "Change in Control of Nextel" as herein defined, provided that such
rights were granted pursuant to a transaction in the financial markets and
not as part of a strategic alliance or similar transaction;
(b) Nextel sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any Person (other
than a direct or indirect wholly owned Subsidiary of Nextel);
(c) Nextel, directly or indirectly, consolidates with, or merges
with or into, another Person or any Person directly or indirectly,
consolidates with, or merges with or into, Nextel, and pursuant to such
transaction (or series of transactions) either: (i) the outstanding Nextel
Voting Stock is converted into or exchanged for cash, securities or other
property, but excluding a transaction (or series of transactions) where
(A) the outstanding Nextel Voting Stock is converted into or exchanged for
Voting Stock of the surviving or transferee Person and (B) the holders of
Nextel Voting Stock immediately preceding such transaction receive more
than 50% of the total Voting Stock and Total
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Common Equity of the surviving or transferee Person in substantially the
same relative proportions as such holders had prior to such transaction;
or (ii) new shares of Nextel Voting Stock are issued so that immediately
following such transaction, the holders of Nextel Voting Stock immediately
preceding such transaction own less than 50% of the Voting Stock and Total
Common Equity of the surviving Person; or
(d) during any period of two consecutive years, individuals who at
the beginning of such period constituted the board of directors of Nextel
(together with any directors who are members of the board of directors of
Nextel on the date of the Closing, and any new directors whose election by
such board of directors or whose nomination for election by the
stockholders of Nextel was approved by a vote of 66-2/3% of the directors
then still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the board of
directors of Nextel then in office.
"Good Reason" means (i) a material adverse change in the Optionee's
duties, responsibilities or reporting relationships, (ii) a relocation of the
Optionee's principal office to a location more than 30 miles away from his then
current office, (iii) a reduction of salary not agreed to by the Optionee, or
material diminution of other employee benefits (other than any change in
employee benefits approved by the Board and implemented in a non-discriminatory
fashion with respect to all participating employees), or any other material
adverse change in his working conditions, and (iv) a material breach by the
Company of other obligations under the Optionee's employment agreement with the
Company or a Subsidiary of the Company that are not cured after 20 business days
following the Company's receipt of a written notification from the Optionee
specifying the particulars in reasonable detail.
"Issued Shares" means Shares issued upon exercise of the Option.
2. Incorporation of the Plan. All terms and conditions of the Plan
that are consistent with the terms and conditions of this Agreement are hereby
incorporated into this Agreement by reference and shall be deemed to be part of
this Agreement, without regard to whether such terms and conditions are not
otherwise set forth in this Agreement. Further, for all purposes hereof, and
unless the context provides otherwise, any reference in this Agreement to the
"Company" shall be deemed to refer to the Company or a Subsidiary, as the case
may be.
3. Grant of Option. In consideration of the Optionee's service to
date on behalf of the Company and for other good and valuable consideration, the
Company hereby irrevocably grants to the Optionee as of __________ the Option to
purchase up to ________ Shares upon the terms and conditions set forth in the
Plan and this Agreement.
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4. Purchase Price. The purchase price of each Share covered by the
Option shall be $_____ without commission or other charge, subject to adjustment
as provided in Section 2.3 of the Plan.
5. Accelerated Vesting.
(A) This Section 5(A) shall apply in the event that a merger
is completed between Sprint Corporation and Nextel Communications, Inc. pursuant
to the Agreement and Plan of Merger dated December 15, 2004 (the "Sprint Nextel
Merger") on or before May 31, 2006. Upon a Change in Control of the Company
caused by the Class A stockholders of the Company exercising their put right set
forth in Article 5.1(b)(A) of the Company's Restated Certificate of
Incorporation as a result of the closing of the Sprint Nextel Merger (the
"Sprint Nextel Put"), all of the unvested Options then held by the Optionee
shall vest immediately if, at the time of the Change in Control of the Company,
the Company has achieved its 2005 Operating Cash Flow objective, unaffected by
any expenses or costs related to a merger or potential merger or sale of the
Company, on a cumulative basis as of the end of the most recently completed
calendar quarter as established by the Compensation Committee of the Board of
Directors of Nextel Partners, Inc. at its January 27, 2005 meeting.
(B) In the event that the Sprint Nextel Merger is not
completed on or before May 31, 2006, the provisions of Section 5(A) above shall
no longer apply and this Section 5(B) shall be operative and shall apply. Upon a
Change in Control of the Company or a Change in Control of Nextel, all of the
unvested Options then held by the Optionee shall vest immediately.
(C) Notwithstanding anything in Section 5(A) above to the
contrary, the provisions of this Section 5(C) shall apply at all times:
(1) Upon termination of the Optionee's employment with
the Company (or any Parent Corporation or Subsidiary) on account of death or
disability, or by the Company without Cause, all of his unvested Options shall
vest immediately.
(2) Upon resignation of the Optionee for Good Reason,
all of his unvested Options shall vest immediately.
(3) Notwithstanding anything to the contrary in Section
4.4(c) of the Plan, if Nextel purchases all or is required to purchase all of
the outstanding Company Capital Stock (as defined in the Shareholders'
Agreement) in accordance with of Sections 4.01, 4.02, 7.03 or 7.04 of the
Shareholders' Agreement, or any of the corresponding provisions of the Restated
Certificate of Incorporation of the Company, all of the unvested Options then
held by the Optionee shall vest immediately and in all events at least thirty
(30) days prior to any purchase by Nextel of the outstanding Company Capital
Stock.
6. Transferability.
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(1) The Option granted hereunder may not be transferred,
assigned or otherwise conveyed by the Optionee to any Person; provided, however,
that nothing in this Agreement or the Plan shall prevent (i) transfers by the
Optionee by will or by the applicable laws of descent and distribution or (ii)
transfers by the Optionee to (x) a spouse or lineal descendant (whether natural
or adopted), sibling, parent, heir, executor, administrator, testamentary
trustee, legatee or beneficiary of the Optionee, (y) any trust, the primary
beneficiaries of which, or any corporation, limited liability company or
partnership, the stockholders, members or general or limited partners of which
include only the Persons named in clause (x) or (z) any charitable remainder
trust for the primary benefit of the Optionee.
(2) Any and all Issued Shares shall not be sold,
transferred, assigned, pledged, encumbered or otherwise disposed of except
pursuant to (i) an effective registration statement under the Securities Act and
registration or qualification under any applicable state securities or "blue
sky" laws or (ii) a transaction that does not require registration or
qualification under the Securities Act or applicable state securities or "blue
sky" laws or is otherwise exempted therefrom (provided, if the Company so
requests, that an opinion satisfactory to the Company to such effect is rendered
by counsel satisfactory to the Company). Certificates representing Issued Shares
which have not been registered in accordance with the Securities Act or
applicable state securities or "blue sky" laws shall bear a legend in customary
form so stating. As a condition to the exercise of the Option, the Company may
require the Optionee to make any representation and warranty to the Company as
may be necessary or desirable (as determined in the sole discretion of the
Company) under any applicable law or regulation.
7. Notices. Any notice to be given under the terms of this Agreement
to the Company shall be addressed to the Company in care of its Secretary, and
any notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
8, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Optionee shall, if
the Optionee is then decreased, be given to the Optionee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 8. Any notice shall be
deemed duly given when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service.
8. Titles. Titles are provided herein for convenience only and are
not to serve as basis for interpretation or construction of this Agreement.
9. Construction. This Agreement shall be administered, interpreted
and enforced under the internal laws of the State of Delaware without regard to
its conflict-of-law rules.
10. Entire Agreement. This Agreement embodies the entire agreement
and understanding of the parties hereto with respect to the subject matter
contained herein and supersedes all prior communications, representations and
negotiations in respect thereto. To the
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extent that the Option is in substitution for any prior understandings between
the Optionee and the Company, any and all rights, entitlements or understandings
are hereby extinguished and the Optionee waives any claim to any and all such
prior understandings.
11. Burden and Benefit. This Agreement shall be binding upon, and
shall inure to the benefit of, the Company and the Optionee, and their
respective heirs, personal and legal representatives, successors and assigns.
12. Specific Performance. Strict compliance by the Optionee shall be
required with each and every provision of the Plan and this Agreement.
13. Modifications. No change or modification of this Agreement shall
be valid unless the same is in writing and signed by the parties hereto;
provided, however, that the Optionee hereby covenants and agrees to execute any
amendment to this Agreement which shall be required or desirable (in the opinion
of the Company or its counsel) in order to comply with any rule or regulation
promulgated or proposed by the Internal Revenue Service.
IN WITNESS WHEREOF, this Agreement has been executed and delivered
by the parties hereto as of the date first above written.
NEXTEL PARTNERS, INC.
By _____________________________
Name:
Title:
________________________________
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