AMENDMENT NO. 1 TO RESTRICTED STOCK PURCHASE AGREEMENT, dated as of
January 29, 1999, between Nextel Partners, Inc., a Delaware corporation (the
"Company"), and (the "Purchaser").
WHEREAS, the Company and the Purchaser have entered into a Restricted
Stock Purchase Agreement, dated as of November 20, 1998 (the "Purchase
Agreement"); and
WHEREAS, the parties hereto desire to amend the Purchase Agreement as
hereinafter set forth;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. Capitalized terms used in this Amendment without
definition shall have the meanings given to such terms in the Purchase
Agreement.
2. Amendments to Purchase Agreement. The Purchase Agreement is hereby
amended as follows:
(a) The reference in the definition of Commitment Letter to "August 13,
1998" shall be deleted and replaced with a reference to "December 4, 1998."
(b) The last paragraph of the definition of "Change in Control of the
Company" shall be deleted and replaced with the following:
"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."
(c) (i) Paragraph (a) of the definition of "Change in Control of
Nextel" shall be amended by adding, after the words "by contract or otherwise",
and before the comma, the following:
"(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)"
(ii) The last paragraph of the definition of "Change in Control of
Nextel" shall be deleted and replaced with the following:
"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 X. XxXxx or the estate of
Xxxxx X. XxXxx, or any successive transfer by such or another Affiliate to
another Affiliate of Xxxxx X. XxXxx, or the estate of Xxxxx X. 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 X.
XxXxx or the estate of Xxxxx X. 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."
(d) The reference in the definition of DLJ Investors to "Sprout Capital
VIII, L.P." shall be deleted, and the reference in such definition to "$125
million" shall be deleted and replaced with a reference to "$74,249,720."
(e) Clause (iv) of the proviso to the first sentence of the definition
of "EBITDA" shall be renumbered as clause (v), and a new clause (iv) shall be
added as follows:
"(iv) out-of-pocket costs and expenses incurred by the Company (or incurred
by others and reimbursed by the Company) in connection with (A) the
transactions contemplated by Section 4.18 of the Joint Venture Agreement,
dated as of January 29, 1999, among the Company, Nextel Partners Operating
Corp. and Nextel WIP Corp. and (B) the matters set forth on Schedule D to
the Subscription and Contribution Agreement, dated as of January 29, 1999,
among the Company and the investors named therein,"
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[(f) clause (i) of the first sentence of the definition of "Good
Reason" shall be deleted and replaced with the following:
"(i) a material adverse change in the Purchaser's duties,
responsibilities or reporting relationships, including without limitation
Purchaser's not being elected to the Board as contemplated by Section 2.01
of the Shareholders' Agreement or his removal from the Board other than
for "cause" in accordance with the provisions of Section 2.02 of the
Shareholders' Agreement."][FN1]
(f) The second sentence of the definition of "Good Reason" shall be
deleted and replaced with the following:
"Notwithstanding the foregoing, a termination with Good Reason under clause
(v) above shall not be deemed effective until 120 days following written
notice by the Purchaser to the Company of the occurrence of any of the
foregoing and only if the foregoing continue to occur as of such 120th day."
(g) A new definition of "Joint Venture Agreement" shall be added to
Section 1 as follows:
"'Joint Venture Agreement' means the Joint Venture Agreement of even
date herewith among the Company, Nextel Partners Operating Corp. and Nextel
Sub."
(h) The definition of "Required Build" shall be deleted and replaced
with the following:
"'Required Build' means the completion of the Build Out of all Initial
Sections (as defined in the Joint Venture Agreement) assigned to the first
or second Build Year (as defined in the Joint Venture Agreement), and of any
Option Sections (as defined in the Joint Venture Agreement) assigned to the
first or second Build Year that are included in the Territory (as defined in
the Joint Venture Agreement) through the Company's election under
Section 6.2B of the Joint Venture Agreement, but excluding any such Option
Sections that are included in the Territory as a result of the Company's
response to a notice given pursuant to Section 6.2C of the Joint Venture
Agreement."
(i) The definition of "Spectrum Price" shall be deleted, all references
in the Purchase Agreement shall be deleted and replaced with references to
"Equity Value," and a new definition of "Equity Value" shall be added to
Section 1 as follows:
"'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."
(j) Clause (i) of the first sentence of the definition of "Total Common
Equity" shall be deleted and replaced with the following:
"(i) the aggregate number of shares of fully diluted common stock of
the Company on such day and"
[FN1] Included in Amendment with Xxxx Xxxxxxx (with remaining provisions
renumbered accordingly).
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(k) The proviso to Section 4(c) shall be deleted and replaced with the
following:
"provided that in no event shall the Company be required to repurchase
Shares from the Purchaser pursuant to this clause (ii), together with
options and shares of Class A Common Stock issued upon exercise thereof
repurchased from the Purchaser pursuant to Section 6(c)(ii) of any Stock
Option Agreement between the Company and Purchaser in the form of Exhibit B
to the Company's 1999 Nonqualified Stock Option Plan, in excess of
$5,000,000 in aggregate Fair Market Value."
(l) The first proviso to the second sentence of Section 4(f) shall be
deleted and replaced with the following:
"provided that in the event of a repurchase of Shares pursuant to Section
4(c)(ii), the Company shall have the option of paying the repurchase price
for such Shares, together with the repurchase price for any options and
shares of Class A Common Stock issued upon exercise thereof repurchased from
the Purchaser pursuant to Section 6(c)(ii) of any Stock Option Agreement
between the Company and the Purchaser in the form of Exhibit B to the
Company's 1999 Nonqualified Stock Option Plan, (i) in a single lump sum or
(ii) in annual installments of $2 million so long as the outstanding balance
of the aggregate repurchase price is $2 million or more, with the first
installment payable within five days after delivery of the Company's notice
of repurchase and the final installment being equal to the outstanding
balance of the aggregate repurchase price;"
(m) The second proviso to Section 4(f) shall be deleted, Section 4(g)
shall be renumbered as Section 4(h), and a new Section 4(g) shall be added as
follows:
"(g) Promissory Note. If the Board determines (pursuant to a duly
adopted resolution of the Board or its compensation committee, a copy of
which shall be delivered to the Purchaser) that the Company is unable to
repurchase all or some portion of the Shares under this Section 4 for cash
without breaching the terms of any debt instruments or other agreements to
which the Company or any of its Subsidiaries is a party, or that such
repurchase would otherwise have a material adverse effect on the financial
condition of the Company, the Company will pay in cash the maximum amount
permitted under such debt instruments, or that would not result in such a
material adverse effect, and deliver to the Purchaser a promissory note for
the balance, payable as soon as (and in the maximum amounts that) the terms
of such debt instruments or other agreements will permit or that will not
have such a material adverse effect, but in no event later than five years
after the date of issuance (or such later date as may be required to comply
with such debt instruments or other agreements), bearing interest at the
highest rate charged from time to time under the Company's senior credit
facility, secured by the Shares being repurchased on terms reasonably
satisfactory to the Company and the Purchaser."
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(n) The words "(net of taxes payable by the Purchaser thereon)" shall
be added after the word "amount" in Section 4(g), renumbered as Section 4(h)
hereby.
(o) So long as the Custodial Agreement of even date herewith among the
Pur chaser, the Custodian named therein and the other parties thereto is in
effect, (i) the provisions of Section 5 of the Purchase Agreement shall have no
force or effect, (ii) the Shares shall be held in custody by the Custodian in
accordance with the terms of the Custodial Agreement, (iii) all references in
the Purchase Agreement to the Escrow Agent shall be replaced with references to
the Custodian, (iv) the words "to be held in escrow as herein provided" in
Section 2(b) shall be deleted and replaced with the words "to be held in custody
as provided in the Custodial Agreement," (v) the words "pursuant to Section
5(a)" in clause (ii) of the second sentence of Section 4(f) shall be deleted and
replaced with the words "pursuant to the Custodial Agreement" and (vi) the words
"Escrowed Shares" in Section 6(b) shall be deleted and replaced with the words
"shares subject to repurchase by the Company pursuant to Section 4."
(p) The words "such dividends or distributions" in the proviso to the
first sen tence of Section 5(d) shall be deleted and replaced with the words
"non-cash dividends or dis tributions."
(q) Schedule I to the Purchase Agreement shall be amended by adding at
the end of the section captioned "Build Shares" a new paragraph as follows:
"The cell site targets set forth in Annex A may be adjusted by the
Board (acting in the good faith exercise of its business judgment) to take
into account circumstances relating to the operation of the Company to the
extent not contem plated by the Company's business plan in effect on the
date hereof (on which the cell targets set forth on Annex A are based)."
(r) Schedule I to the Purchase Agreement shall be amended by adding at
the end of the section captioned "Revenue Shares" a new paragraph as follows:
"The revenue targets set forth in Annex A may be adjusted by the Board
(acting in the good faith exercise of its business judgment) to take into
account circumstances relating to the operation of the Company to the extent
not contem plated by the Company's business plan in effect on the date
hereof (on which the revenue targets set forth on Annex A are based)."
(s) Annex A to Schedule I to the Purchase Agreement shall be deleted
and replaced with a new Annex A in the form annexed hereto.
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[3. The Company hereby acknowledges and consents to the transfer of
Shares made by Purchaser prior to the date of this Amendment.][FN2]
3. Miscellaneous.
(a) No Novation. This Amendment is not intended to be, and shall not be
construed to create, a novation of the Purchase Agreement, which as hereby
modified shall continue in full force and effect.
(b) Entire Agreement. This Amendment (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both oral and written, among the
parties with respect to the subject matter hereof. This Amendment may not be
waived, modified or amended except by an instrument in writing signed on behalf
of each of the parties hereto.
(c) Governing Law. This Amendment shall be governed by and construed
and enforced in accordance with the internal laws of the State of Delaware
without regard to its conflict of laws principles.
(d) Reference to Purchase Agreement. From and after the date of this
Amend ment, all references in the Purchase Agreement to the Purchase Agreement
shall be deemed to be references to the Purchase Agreement as amended hereby.
(e) Headings and Exhibits. The headings of the various Sections herein
are for convenience of reference only and shall not define or limit any of the
terms or provisions hereof.
(f) Assignment. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
(g) Counterparts. This Amendment may be executed in two or more
counterparts each of which shall be deemed an original and all of which together
shall constitute one and the same instrument.
[FN2] Included in Amendment for Xxxx Xxxxxxx and Xxxx Xxxxxxxx (with remaining
provisions renumbered accordingly).
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first above written.
NEXTEL PARTNERS, INC.
By
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Name:
Title:
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[Purchaser]
Agreed to and accepted by:
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[Purchaser's Spouse]
