Exhibit 10.20(a)
AMENDED AND RESTATED
RESTRICTED STOCK PURCHASE AGREEMENT
(XXXXX XXXXX)
THIS RESTRICTED STOCK PURCHASE AGREEMENT, is amended and restated as
of May 9, 2005 between Nextel Partners, Inc., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxx (the "Purchaser").
WHEREAS, the Purchaser is an executive officer of each of the Company
and Nextel Partners Operating Corp., a Delaware corporation and a wholly owned
subsidiary of the Company, and his continued participation 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 sold to the Purchaser, and the
Purchaser purchased from the Company, shares of the Company's Class A Common
Stock, in accordance with the terms and conditions of the Restricted Stock
Purchase Agreement dated as of August 18, 2003 (the "RSPA");
WHEREAS, the Compensation Committee of the Board has agreed that it is
in the best interest of the Company to amend and restate the RSPA, and Purchaser
desires also to amend and restate the 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 (1) 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 (2) 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
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excluding any pay-in-kind preferred stock, other "debt equivalents" and
mandatorily redeemable "nominal equity" securities.
"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) a willful
and material refusal to comply with specific written directions of the Board
consistent with the Purchaser'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 Purchaser's 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
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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 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) or
"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 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;
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(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 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;
"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 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
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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.
"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 arithmetic average of the closing sales price for the
Company's common stock on a national stock exchange or NASDAQ National Market
for the twenty trading days immediately preceding the date as of which Fair
Market Value is to be determined.
"Good Reason" means (i) a material adverse change in the Purchaser's
duties, responsibilities or reporting relationships, (ii) a relocation of the
Purchaser'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 Purchaser, 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 Purchaser'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 Purchaser
specifying the particulars in reasonable detail.
"Nextel" means NEXTEL Communications, Inc. and its successors and
assigns.
"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.
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"Shares" has the meaning set forth in Section 2(a).
"Trading Days" with respect to a securities exchange or automated
quotation system means a day on which such exchange or system is open for a full
day of trading.
"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.
2. Purchase and Sale.
(a) The Company has sold to the Purchaser, and the Purchaser has
purchased from the Company, an aggregate of fifty thousand (50,000) shares
of the Company's Class A Common Stock, par value $.001 per share (the
"Shares"), at the price of $.01 per share.
(b) The Purchaser has delivered to the Company a check payable to the
Company in the amount of the aggregate purchase price of the Shares, and
the Company has delivered to the Escrow Agent, to be held in escrow as
herein provided, a duly executed certificate evidencing the Shares issued
in the name of the Purchaser.
(c) This Agreement shall not confer upon the Purchaser any right with
respect to continuation of his employment with the Company, 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 on
August 1, 2007 so long as the Purchaser is continuously employed by the
Company or a subsidiary of the Company, subject to the provisions of
Section 3(b) below.
(b) Accelerated Vesting. Notwithstanding the provisions of Section
3(a) to the contrary:
(i) Upon a Change in Control of the Company all of the Unvested
Shares shall vest immediately;
(ii) Upon termination of the Purchaser's employment on account of
death or disability, or by the Company without Cause, all of his
Unvested Shares
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shall vest immediately;
(iii) Upon resignation of the Purchaser for Good Reason, all of
his Unvested Shares shall vest immediately;
(iv) If the Purchaser resigns without Good Reason prior to August
1, 2007, his Unvested Shares shall vest in accordance with the
following schedule:
Resignation without Good Reason Shares Vested
------------------------------- -------------
On 8/1/03 and on or before 7/31/04 0
On 8/1/04 and on or before 7/31/06 12,500
On 8/1/06 and on or before 7/31/07 37,500
On or after 8/1/07 50,000
4. Repurchase Rights.
(a) Unvested Shares. Subject to the provisions of Section 3, in the
event of termination of the Purchaser's employment with the Company for any
reason or for no reason, the Company shall, for 90 days following the date
of termination, 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) $.01 per share.
(b) Exercise by the Company. Any repurchase by the Company pursuant to
this Section 4 shall be exercisable by written notice to the Purchaser or
his executor (with a copy to the Escrow Agent) 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 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 by the Escrow Agent 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 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. In the event that the Company fails to exercise
its repurchase rights hereunder within the stated time periods, all such
repurchase rights of the Company shall immediately lapse and no longer
apply to the Shares.
5. Escrow of Shares.
(a) Shares that are subject to repurchase by the Company pursuant to
Section 4 (collectively, "Escrowed Shares") shall be either (i) held in
escrow by the Secretary of the Company as escrow agent (the "Escrow Agent")
together with one or more stock
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powers executed in blank and in a form legally sufficient to effect the
transfer of such Escrowed Shares; or (ii) held in a single brokerage
account designated by the Purchaser and approved by the Company, which
approval shall not be unreasonably withheld. If the Purchaser chooses to
place the Escrowed Shares in a designated brokerage account pursuant to
this Section 5(a), the Purchaser will make diligent and reasonable efforts
to obtain from the broker and provide to the Company's General Counsel a
copy of a "Broker Instruction/Representation Form" signed by the broker and
in substantially the same form as attached hereto as Exhibit A, which form
may be modified and amended by the Company from time to time in the
Company's discretion as necessary or appropriate to maintain compliance
with applicable laws, rules and regulations regarding transactions in the
Company's securities. Shares that are no longer subject to repurchase by
the Company pursuant to Section 4 shall be released from escrow at the
Purchaser's request, and the Escrow Agent shall promptly cause a new
certificate to be issued for such released Shares and shall deliver such
certificate to the Purchaser.
(b) The Escrow Agent is hereby directed to permit transfers of
Escrowed Shares only in accordance with this Agreement or upon receipt of
instructions signed by both parties. In the event further instructions are
desired by the Escrow Agent, he shall be entitled to rely upon directions
executed by a majority of the authorized number of the Company's directors
(excluding the Purchaser if he is then a member of the Board). The Escrow
Agent shall have no liability for any act or omission hereunder while
acting in good faith in the exercise of his own judgment, and shall be
entitled to indemnification from the Company to the full extent permitted
by applicable law in respect of his 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
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 or otherwise held in accordance with this Section 5, including
without limitation, the right to vote the Escrowed Shares and to receive
any cash dividends and other distributions declared thereon, provided that
any non-cash dividends or distributions shall be immediately deposited with
the Escrow Agent to be held in escrow together with the Escrowed Shares or
placed in the brokerage account designated by the Purchaser in accordance
with this Section 5. If, from time to time prior to the termination of the
Company's repurchase rights, there is (i) any stock dividend, stock split
or like change in the Shares or (ii) any 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 ownership of Escrowed Shares shall be immediately
subject to this Section 5 and deposited with the Escrow Agent or placed in
the designated brokerage account and included thereafter as "Escrowed
Shares" for purposes of this Agreement.
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6. Legends; Transfer Restrictions.
(a) The certificates evidencing the Shares shall be endorsed with the
following legend (and any other legend required to be placed thereon by
applicable state 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.
In addition, the certificates evidencing the Escrowed Shares shall be
endorsed with the following legend:
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.
(b) Except as otherwise permitted by, and subject to the provisions of
each of, this Agreement, any stockholders' agreement to which the Purchaser
is a party, the restated certificate of incorporation of the Company, as
amended from time to time, or the Purchaser's employment agreement with the
Company or a subsidiary of the Company, none of the Escrowed Shares (or any
beneficial interest therein) shall be transferred, encumbered or otherwise
disposed of in any way.
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
purchase of the Shares.
8. Investment Representations; Restriction on Transfer. In connection with
the purchase of the Shares, the Purchaser represents to the Company the
following:
(a) He 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. He is
purchasing these securities for investment for his 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) He 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
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herein. In this connection, he understands that, in the view of the SEC,
the statutory basis for such exemption may not be present if his
representations meant that his 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.
(c) He 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. He
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 he is
an "executive officer" as defined in Regulation 501 or otherwise is an
"accredited investor", the Purchaser is aware that the Company is a
"development stage" company with no significant business operations or
history and may be dependent for its future success on matters that cannot
now be foreseen or predicted, and the Purchaser is not making this
investment in the Company based on any representation or warranty made to
him by the Company.
(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 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 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.
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(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.
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, as amended and restated, 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
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If to Executive:
Xxxxx X. Xxxxx
______________
______________
Facsimile:
(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 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. The arbitrator shall be selected in
a manner that is mutually agreeable to the Company and the Purchaser. Any
party may demand such arbitration in accordance with the procedures set out
in those rules. The arbitration shall be conducted in New York, New York,
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 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.
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(h) The Purchaser understands that he (and not the Company) shall be
responsible for his own federal, state, local or foreign tax liability and
any of his 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 tax advisors or his 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 and Nextel Partners Operating Corp. 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 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.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
NEXTEL PARTNERS, INC.
By
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Name:
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Title:
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Xxxxx X. Xxxxx
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