EXHIBIT 10.19(b)
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT, dated as of
____________, is by and between Nextel Partners, Inc., a Delaware corporation
(the "Company"), and _________ (the "Purchaser").
WHEREAS, the Purchaser is a member of the Board of Directors of
the Company and of Nextel Partners Operating Corp., a Delaware corporation and a
wholly owned subsidiary of the Company, and his continued participation on the
Boards of Directors is considered by the Company to be important for the
development of the Company's business; and
WHEREAS, in recognition of Purchaser's anticipated and highly
valued contribution to the Company, the Company wishes to sell to the Purchaser,
and the Purchaser wishes to purchase from the Company, shares of the Company's
Class A Common Stock, in accordance with the terms and conditions of this
Restricted Stock Purchase Agreement (this "Agreement" or "RSPA");
WHEREAS, the Board of Directors of the Company, with Purchaser
abstaining, has determined that, in order to attract and retain qualified
individuals, the Company must provide adequate compensation to such individuals
and has therefore approved the execution of this RSPA;
NOW, THEREFORE, the parties agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings set forth below:
"Beneficial Owner" means a beneficial owner as defined in Rules
13d-3, 13d-5 or 16a-1 under the Exchange Act (or any successor rules), including
the provision of such Rules that a Person shall be deemed to have beneficial
ownership of all securities that such Person has a right to acquire within 60
days, but such provision of the Rules will apply only if (i) all conditions
(other than payment of the purchase or acquisition price of such securities) to
such Person's exercise of such rights have been satisfied and (ii) such
securities (if options, warrants, or similar derivatives) are "in-the-money,"
provided that in all cases a Person shall not be deemed a Beneficial Owner of,
or to own beneficially, any securities if such beneficial ownership (x) arises
solely as a result of a revocable proxy delivered in response to a proxy or
consent solicitation made pursuant to, and in accordance with, the Exchange Act
and the applicable rules and regulations thereunder, and (y) is not also then
reportable on Schedule 13D under the Exchange Act.
"Board" means the Board of Directors of the Company.
"Capital Stock" of any Person means any and all shares,
interests, participation or other equivalents (however designated) of stock of,
or other ownership interests in, such Person, but excluding any pay-in-kind
preferred stock, other "debt equivalents" and mandatorily redeemable "nominal
equity" securities.
1
"Cause" means (i) the Purchaser's conviction of a felony
evidencing criminal dishonesty or moral turpitude, (ii) a willful and material
breach of the Purchaser's duty of loyalty to the Company or any of its
subsidiaries or (iii) after 20 business days following the Purchaser's receipt
of a written notification from the Company specifying the particulars in
reasonable detail, the Purchaser's failure to comply with or to cure, as
applicable, a willful and material breach of the Purchaser's fiduciary duty or
duty of due care to the Company.
"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 date
hereof, 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
2
Company on the date hereof, 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
directors of the Company then in office; provided, that no change in the
composition of the Board 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 (i) 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) or (ii) merely by reason of a transfer by Eagle River
Investments, LLC ("Eagle River") to another Person of the Capital Stock
of the Company owned by Eagle River so long as Xxxxx X. XxXxx ("XxXxx")
controls (as defined in Section 4.01(h) of the Shareholders' Agreement)
such Person whether or not XxXxx owns a majority of the equity interests
of such Person, unless such transfer referred to in this clause (ii),
alone or in conjunction with other transactions, results in the
occurrence of an event of the type described in any of clauses (a), (b),
(c) or (d) above.
"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) other than
a Permitted Holder (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 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;
3
(b) Nextel sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any
Person (other than a Permitted Holder or a direct or indirect wholly
owned subsidiary of Nextel);
(c) Nextel, directly or indirectly, consolidates with, or merges
with or into, another Person (other than a Permitted Holder), or any
Person (other than a Permitted Holder), 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
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 hereof, 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;
provided that it is expressly understood and agreed that (A) the transfer of
Nextel Voting Stock and/or Capital Stock in Nextel by a Permitted Holder to an
Affiliate of XxXxx or the estate of XxXxx, or any successive transfer by such or
another Affiliate to another Affiliate of XxXxx, or the estate of XxXxx, shall
not by itself be a Nextel Sale (provided that, for this purpose, any such
Affiliate shall not be controlled by any person or group other than XxXxx or the
estate of XxXxx) and (B) the direct or indirect sale or other disposition of all
or any portion of the Nextel Voting Stock and/or the Capital Stock in Nextel
held now or in the future by any Permitted Holder to any Person other than
another Permitted Holder shall not by itself be a Change in Control of Nextel,
unless such sale or disposition, alone or in conjunction with other
transactions, results in the occurrence of an event of the type described in any
of clauses (a), (b), (c) or (d) above.
"Class A Common Stock" means the Class A Common Stock, par value
$.001 per share, of the Company.
"Closing Price" on any Trading Day with respect to the per share
price of any shares of Capital Stock of any Person means the last reported sale
price regular way or, in case no such
4
reported sale takes place on such day, the average of the reported closing bid
and asked prices regular way, in either case on the New York Stock Exchange or
if such shares of Capital Stock are not listed or admitted to trading on such
exchange, on the principal national securities exchange on which such shares are
listed or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on the NASDAQ Stock Market or, if such shares are
not listed or admitted to trading on any national securities exchange or quoted
on the NASDAQ Stock Market and the issuer and principal securities exchange do
not meet such requirements, the average of the closing bid and asked prices in
the over-the-counter market as furnished by any New York Stock Exchange member
firm of national standing that is selected from time to time by such Person for
that purpose.
"Common Stock" of any Person means Capital Stock of such Person
that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Company" has the meaning set forth in the preamble.
"control" of a Person means the power, direct or indirect, (i) to
vote or direct the voting of more than 50% of the outstanding shares of Voting
Stock of such Person, or (ii) to direct or cause the direction of the management
and policies of such Person whether by contract or otherwise.
"Equity Value" has the meaning set forth in the Joint Venture
Agreement, provided, that Equity Value as determined thereunder shall be subject
to challenge by the Purchaser in accordance with the same procedures and other
provisions applicable to challenges by Nextel Sub of such determination.
"Escrow Agent" has the meaning set forth in Section 5(a).
"Escrow Shares" has the meaning set forth in Section 5(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any Shares repurchased
by the Company hereunder, the Equity Value in effect on the date of consummation
of such repurchase.
"Joint Venture Agreement" means the Joint Venture Agreement dated
as of January 29, 1999 among the Company, Nextel Partners Operating Corp. and
Nextel Sub.
"Nextel" means NEXTEL Communications, Inc. and its successors and
assigns.
"Nextel Sub" means Nextel WIP Corp., a Delaware corporation and a
wholly owned indirect subsidiary of Nextel.
5
"Permitted Holders" means, collectively, XxXxx and any entity or
entities (i) that is controlled directly or indirectly by XxXxx or the estate of
XxXxx and (ii) a majority of the equity interests of which are owned, directly
or indirectly, by XxXxx and his family, his brothers and their families,
officers and employees of such entities, ex-spouses of such persons and estates
of, or trusts for the primary benefit of, the foregoing persons (collectively,
the "XxXxx Group"); provided that "Permitted Holders" also includes a group of
entities that is each controlled by XxXxx or the estate of XxXxx and through
which the XxXxx Group collectively own, directly or indirectly, a majority of
the equity interests of Nextel (it being understood that if the XxXxx Group
collectively owns 50% of an entity that owns 20% of Nextel's equity interests,
the XxXxx Group will be deemed to indirectly own 10% of Nextel's equity interest
though such entity).
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Purchaser" has the meaning set forth in the preamble.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholders' Agreement" shall mean that Amended and Restated
Shareholders Agreement dated as of February 22, 2000, as amended, by and among
the Company and the parties named therein.
"Shares" has the meaning set forth in Section 2(a).
"Total Common Equity" of any Person means, as of any day of
determination, the product of (i) the aggregate number of fully diluted shares
of common stock of such Person on such day and (ii) the average Closing Price of
such common stock over the 20 consecutive Trading Days immediately preceding
such day. If no such Closing Price exists with respect to shares of any such
class, the value of such shares for purposes of clause (ii) of the preceding
sentence shall be determined by the board of directors of such Person in good
faith and evidenced by a resolution of such board of directors.
"Unvested Shares" means Shares that are not Vested Shares.
"Vested Shares" means Shares that are vested in accordance with
Section 3.
"Voting Stock" of any Person means Capital Stock of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
6
2. Purchase and Sale.
(a) The Company hereby agrees to sell to the Purchaser, and the
Purchaser hereby agrees to purchase from the Company, an aggregate of
________ (_____) shares of the Company's Class A Common Stock (the
"Shares"), at the price of $___ per share.
(b) Upon the execution of this RSPA, the Purchaser shall deliver
to the Company a check payable to the Company in the amount of
___________ dollars ($___) representing the aggregate purchase price of
the Shares, and the Company shall deliver to Purchaser or Purchaser's
designee a duly executed certificate evidencing the Shares issued in the
name of the Purchaser.
(c) This RSPA shall not confer upon the Purchaser any right with
respect to the continuation of his or her membership on the Board nor
shall it interfere with or affect in any manner the right or power of
the Company, or a parent or subsidiary of the Company, to terminate any
agreement with the Purchaser in accordance with the terms thereof.
3. Vesting.
(a) Ordinary Vesting. The parties agree that the Shares shall
vest in accordance with Schedule I so long as the Purchaser is a member
of the Board, subject to the provisions of Section 3(b) below.
(b) Accelerated Vesting. Notwithstanding the provisions of
Section 3(a) or Schedule I to the contrary:
(i) Upon a Change in Control of the Company or a Change in
Control of Nextel, all of the Unvested Shares shall vest
immediately.
(ii) Upon termination of the Purchaser's membership on the
Board on account of Purchaser's death or disability, or in the
event Purchaser is requested to resign or is not re-elected by
the Board and/or the Company's stockholders to serve on the Board
other than for Cause, all Purchaser's Unvested Shares shall vest
immediately.
4. Repurchase Rights.
(a) Unvested Shares. Subject to the provisions of Section 3, in
the event of Purchaser's resignation or termination from membership on
the Board for Cause, the Company shall, for 90 days following the date
of such termination or resignation, have the option to repurchase all or
any portion of the Unvested Shares, if any, at a repurchase price equal
to the lesser of (i) Fair Market Value and (ii) $___ per share.
7
(b) Vested Shares/Termination for Cause. In addition to the
rights set forth in Section 4(a) above, in the event Purchaser's
membership on the Board is terminated for Cause, for 90 days following
the date of termination the Company shall have the option to purchase
from the Purchaser all or any portion of the Vested Shares at a
repurchase price per share equal to the lesser of (i) Fair Market Value
and (ii) $___ per share.
(c) Exercise by the Company. Any repurchase by the Company
pursuant to this Section 4 shall be exercisable by written notice to the
Purchaser or Purchaser's executor given within the applicable time
period, and such notice if given shall constitute an irrevocable offer
by the Company to repurchase the Shares covered thereby. Such notice
shall set forth the number of Shares to be repurchased and the aggregate
repurchase price thereof, as determined by the Board, with Purchaser
abstaining, in good faith as of a date no more than ten days prior to
such repurchase. Within five days after delivery of such notice, upon
delivery to the Company of the Shares being repurchased, together with
one or more related stock powers executed by the Purchaser in blank, and
upon receipt by the Company of a representation by the Purchaser that
he/she owns the Shares being repurchased, the Company shall pay to the
Purchaser in immediately available funds an amount equal to the
aggregate repurchase price of the Shares being repurchased determined in
accordance with this RSPA.
5. Escrow of Shares.
(a) Unvested Shares shall be held in escrow ("Escrowed Shares")
by the Secretary of the Company as escrow agent (the "Escrow Agent").
(b) The Escrow Agent is hereby directed to transfer Escrowed
Shares to Purchaser or Purchaser's designee upon Vesting and in
accordance with written instructions from Purchaser. The Escrow Agent
shall have no liability for any act or omission hereunder while acting
in good faith in the exercise of his/her own judgment, and shall be
entitled to indemnification from the Company to the full extent
permitted by applicable law in respect of his/her service as Escrow
Agent.
(c) If the Company or any assignee repurchases Shares pursuant to
Section 4, the Escrow Agent, upon receipt of written notice of such
exercise from the proposed transferee, shall take all steps necessary to
accomplish such transfer.
(d) Subject to the terms hereof, the Purchaser and each of
his/her permitted assigns shall, as a record owner of Shares, have all
the rights of a stockholder with respect to the Escrowed Shares while
they are held in escrow, including without limitation, the right to vote
the Escrowed Shares and to receive any cash dividends and other
distributions declared thereon, provided that any unvested non-cash
dividends or distributions shall be immediately deposited with the
Escrow Agent to be held in escrow together with the Escrowed Shares in
accordance with this Section 5. If, from time to time prior to the
vesting of the Escrowed Shares, there is (i) any stock dividend, stock
split or like change in the Shares or (ii) any
8
merger or sale of all or substantially all of the assets or other
acquisition of the Company, any and all new, substituted or additional
securities to which the Purchaser is entitled by reason of his/her
ownership of Escrowed Shares shall be immediately subject to this
escrow, deposited with the Escrow Agent and included thereafter as
"Escrowed Shares" for purposes of this Agreement.
6. Legends; Transfer Restrictions.
The certificates evidencing the Shares shall be endorsed with the
following legends (and any other legend required to be placed thereon by
applicable securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE
STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY.
7. Adjustments for Splits, Etc. All references to the number of Shares
and the purchase price of the Shares in this Agreement shall be automatically
adjusted to reflect any stock split, stock dividend or like change in the shares
of Class A Common Stock which may be made by the Company after the date of this
RSPA.
8. Investment Representations; Restriction on Transfer. In connection
with the purchase of the Shares, the Purchaser represents to the Company the
following:
(a) Purchaser is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the
Shares. Purchaser is purchasing these securities for investment for
Purchaser's own account only and not with a view to, or for resale in
connection with, any "distribution" thereof within the meaning of the
Securities Act.
(b) Purchaser understands that the Shares have not been
registered under the Securities Act by reason of a specific exemption
therefrom, which exemption depends upon, among other things, the bona
fide nature of his investment intent as expressed herein. In this
connection, Purchaser understands that, in the view of the SEC, the
statutory basis for such exemption may not be present if Purchaser's
representations meant that his/her present intention was to hold these
securities for a minimum capital gains period under the tax statutes,
for a deferred sale, for a market rise, for a sale if the market does
not rise, or for a year or any other fixed period in the future.
9
(c) Purchaser further acknowledges and understands that the
Shares must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is
available. Purchaser understands that the certificate evidencing the
Shares will be imprinted with a legend which prohibits the transfer of
the Shares unless they are registered or such registration is not
required in the opinion of counsel for the Company.
(d) The Purchaser is an "accredited investor" within the meaning
of Regulation 501 under the Securities Act of 1933, as amended, in that
Purchaser is a director of the Company as defined in Regulation 501 or
otherwise is an "accredited investor."
(e) The Purchaser's financial situation is such that the
Purchaser can afford to bear the economic risk of holding the Shares
acquired hereunder for an indefinite period of time, the Purchaser has
adequate means for providing for his/her needs and contingencies and can
afford to suffer the complete loss of the investment in the Shares.
(f) The Purchaser's knowledge and experience in financial and
business matters are such that he/she is capable of evaluating the
merits and risks of the investment in the Shares, or the Purchaser has
been advised by a representative possessing such knowledge and
experience.
(g) The Purchaser understands that the Shares acquired hereunder
are a speculative investment which involves a high degree of risk of
loss of the entire investment therein, that there are substantial
restrictions on the transferability of the Shares, and that for an
indefinite period following the date hereof there will be no (or only a
limited) public market for the Shares and that, accordingly, it may not
be possible for Purchaser to sell the Shares in case of emergency or
otherwise.
(h) The Purchaser and his representatives, including his
professional, financial, tax and other advisors, have carefully reviewed
all documents available to them in connection with the investment in the
Shares, and the Purchaser understands and has taken cognizance of all
the risks related to such investment.
(i) The Purchaser and his representatives have been given the
opportunity to examine all documents and to ask questions of, and to
receive answers from, the Company and its representatives concerning the
terms and conditions of the acquisition of the Shares and related
matters and to obtain all additional information which the Purchaser or
his representatives deem necessary.
(j) All information that the Purchaser has provided to the
Company and its representatives concerning the Purchaser and his
financial position is true, complete and correct.
10
9. General Provisions.
(a) This Agreement shall be governed by the internal laws of the
State of Delaware without regard to conflicts of law principles.
(b) This Agreement represents the entire agreement between the
parties with respect to the purchase of the Shares by the Purchaser and
may be modified or amended only by a writing signed by both parties.
(c) All notices given hereunder shall be in writing and shall be
deemed to have been duly given and received (i) when delivered
personally, with receipt acknowledged in writing by the recipient, (ii)
on the tenth business day after being sent by registered or certified
mail (postage paid, return receipt requested), (iii) one business day
after being sent by a reputable overnight delivery service, postage or
delivery charges prepaid, or (iv) on the date on which a facsimile is
transmitted, in each case to the parties at their respective addresses
stated below; provided, that if the intended recipient of any notice
hereunder refuses to acknowledge receipt thereof in writing, such notice
shall be deemed to have been duly given on the date of such refusal. Any
party may change its address for notice by giving notice of the new
address to the other party in accordance with the provisions of this
paragraph.
If to the Company:
Nextel Partners, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: 000-000-0000
If to Purchaser:
___________________
___________________
___________________
Fax:
(d) The rights and obligations of the Purchaser under this
Agreement may be assigned only with the prior written consent of the
Company.
(e) Either party's failure to enforce any provision of this
Agreement shall not in any way be construed as a waiver of any such
provision, nor prevent that party thereafter from enforcing each and
every other provision of this Agreement. The rights granted both
11
parties herein are cumulative and shall not constitute a waiver of
either party's right to assert all other legal remedies available to it
under the circumstances.
(f) Each party agrees, upon the reasonable request of the other
party, to execute any further documents or instruments necessary or
desirable to carry out the purposes or intent of this Agreement.
(g) Except as otherwise provided herein, any controversies or
claims arising out of, or relating to this Agreement or the breach
thereof, shall be settled by arbitration in accordance with the
commercial rules of the American Arbitration Association, which decision
shall be final and binding on the parties, and judgment upon the award
rendered shall be entered in any court having jurisdiction thereof. Any
party may demand such arbitration in accordance with the procedures set
out in those rules. The arbitration shall be conducted in Seattle,
Washington, or such other location as may be mutually agreed upon by the
parties. Special, consequential, or punitive damages shall not be
awarded by the arbitrator. In the event of any arbitration proceeding
hereunder, the Company will (x) pay the fees and expenses of the
arbitrator and (y) advance the Purchaser's documented out-of-pocket
costs (including reasonable counsel fees and expenses) on a current
basis, provided, that if the Purchaser is determined not to be the
substantially prevailing party on the matters submitted for arbitration
(which determination shall be made by the arbitrator and included in his
or her decision), the Purchaser will promptly reimburse the Company for
any expenses so advanced. The Purchaser acknowledges that the Company is
agreeing to make advances to him/her pursuant to the preceding sentence
in consideration of his agreement to reimburse the Company for any such
advances to the extent required by the preceding sentence. The Company
will in all events pay its own costs (including counsel fees and
expenses) in connection with any arbitration proceeding hereunder.
(h) The Purchaser understands that he/she (and not the Company)
shall be responsible for his/her own federal, state, local or foreign
tax liability and any of his/her other tax consequences that may arise
as a result of the transactions contemplated by this Agreement. The
Purchaser shall rely solely on the determinations of his/her tax
advisors or his/her own determinations, and not on any statements or
representations by the Company or any of its agents, with regard to all
such tax matters. The Purchaser shall notify the Company in writing if
the Purchaser files an election pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, with the Internal Revenue
Service within 30 days from the date of the sale of the Shares
hereunder; and the Company shall file its tax returns and reports in a
manner consistent with such election, provided that such election is
made on the basis disclosed to the Company. The Company intends, in the
event it does not receive from the Purchaser evidence of a proper
filing, to claim a tax deduction for and to calculate and withhold taxes
on any amount which would be taxable to the Purchaser in the absence of
such an election.
(i) To the extent legally required, the Company shall have the
right and is authorized to withhold from any payments due or transfers
in connection with the purchase
12
of the Shares hereunder or from any compensation or other amount owing
to the Purchaser the amount (in cash, Shares, other securities or other
property) of any applicable withholding taxes in respect of the Shares
and to take such other action as may be necessary in the opinion of the
Company to satisfy all obligations for the payment of such taxes, if
applicable.
* * *
13
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the date first above written.
NEXTEL PARTNERS, INC.
By_____________________________________
Name:
Title:
_______________________________________
14
Schedule I
Vesting Schedule
The Shares shall vest in accordance with this Schedule I, subject to
the Purchaser's continued service on the Board (except as otherwise provided in
Section 3).*
--------------------------------------------------------------------------------
Vesting XX/XX/03 XX/XX/03 XX/XX/03
--------------------------------------------------------------------------------
Shares Vested (Annual)
--------------------------------------------------------------------------------
Shares Vested (Cumulative)
--------------------------------------------------------------------------------
15
