EXHIBIT 10.84
EMPLOYMENT AGREEMENT
This agreement, dated as of February 24, 2005 is entered into between
Nextel Partners Operating Corp., a Delaware corporation, Nextel Partners, Inc.,
a Delaware corporation (collectively the "Company"), and Xxxxx Xxxxx,
("Executive").
WHEREAS, the Company desires to employ Executive and to enter into an
agreement embodying the terms of such employment (the "Agreement"), and
Executive desires to accept such employment and enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the Company and Executive, intending to be legally bound, hereby agree as
follows:
1. Employment.
(a) Agreement to Employ. Upon the terms and subject to the
conditions hereof the Company shall employ Executive as Vice President of Sales
and Marketing and, effective May 9, 2005, as Chief Operating Officer of Nextel
Partners, Inc. and Nextel Partners Operating Corp. until the Expiration Date (as
defined in Section 1(b)), any date to which this Agreement shall have been
extended pursuant to section 1(b) or any earlier termination of this Agreement
pursuant to the provisions hereof. Executive's office shall be located in the
Seattle, Washington metropolitan area. During the term of his employment
hereunder, Executive will devote substantially all of his business time to the
performance of his duties hereunder.
(b) Employment Period. Unless earlier terminated pursuant to the
provisions hereof, the initial term of Executive's employment with the Company
shall be for a period commencing on the date of this Agreement and continuing
until February 24, 2006 (the "Expiration Date"). The term of this Agreement
shall automatically extend for successive one-year terms commencing on the
Expiration Date unless Executive or the Company's Board of Directors provides
written notice to the other party at least thirty (30) calendar days prior to
the end of the then current term indicating that the party giving notice does
not wish to extend the Agreement. In such event, the Agreement shall terminate
at the end of the then current term.
2. Responsibility. Executive shall be responsible for establishment,
maintenance and operation of all strategic sales, marketing, and public affairs
functions at the Company and for such other duties commensurate with his
position that may be assigned from time to time by the Chief Executive Officer.
Executive shall report directly to the Chief Executive Officer or such other
corporate officer as the Chief Executive Officer may designate, and shall be
subject to the overall supervision of the Chief Executive Officer or such other
designated officer.
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3. Compensation and Benefits.
(a) Salary, Bonus and Benefits.
(i) From February 24, 2005 through May 8, 2005, the Company
shall pay Executive a base salary in the annual amount of $250,000 and from May
9, 2005 and thereafter Company shall pay Executive a base salary in the annual
amount of $300,000 payable bi-weekly or in such other manner as is consistent
with the Company's normal payroll practices.
(ii) The Company shall (subject to the review and approval by
the compensation committee of the board of directors) establish a performance
based program pursuant to which Executive shall receive, if performance targets
are met, an additional annual cash payment of up to one hundred percent (100%)
of Executive's then current base salary (or such higher amount as the
compensation committee may approve).
(iii) The Company shall offer to Executive a benefits package
equivalent to that provided to the Company's other employees and senior-level
executives (including, without limitation, participation in the Company's
medical, dental, vision, life and disability insurance programs, the Company's
401(k) plan, the Company's stock purchase program, and such other plans or
programs as may be made available). In addition, the Company shall maintain a
life insurance policy on the life of Executive and payable upon death of the
Executive to a beneficiary or beneficiaries designated by Executive, in an
amount not less than $500,000.
(iv) For so long as this Agreement is renewed, the
compensation committee of the board of directors shall each year on or before
the anniversary date of this Agreement review the Executive's base salary and
bonus payment in light of the performance of Executive and the Company, and may
increase (but not decrease) such base salary and bonus payment by an amount it
determines to be appropriate.
(b) Expenses. Executive shall maintain his own automobile and shall
carry liability insurance in the minimum amount of $300,000. The Company shall
reimburse Executive monthly for business use of his automobile at the prevailing
IRS rate per mile. Executive shall also be reimbursed monthly for all other
reasonable out-of-pocket expenses incurred or paid by Executive while
representing the Company or conducting Company business. Executive shall be
responsible for maintaining records reasonably satisfactory to support all
claimed business usage of his automobile and to substantiate all out-of-pocket
expenses incurred for which reimbursement is sought and shall furnish such
records to the Company in accordance with its policies.
(c) Vacation. Executive shall be entitled to 15 vacation days each
calendar year, any or all of which may be carried over into a new calendar year,
for a maximum accrual of 30 days. Executive shall also be entitled to any paid
or unpaid
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holidays provided by the Company in accordance with its generallyapplicable
personnel policies. Upon termination of Executive's services under this
Agreement, Executive will be paid for unused and accrued vacation time earned
through the last completed day of service.
(d) Indemnification. The Company shall indemnify and hold Executive
harmless in accordance with the terms of the Company's certificate of
incorporation and bylaws, in each case as in effect on the date hereof.
(e) D&O Insurance. The Company shall maintain directors and
officers' liability insurance coverage covering Executive in amounts customary
for similarly situated companies in the telecommunications industry and with
reputable insurers. All such policies shall provide for coverage to Executive on
the same terms and conditions applicable to the coverage provided under such
policies to the Company's other directors and officers.
4. Nondisclosure of Proprietary and Confidential Information.
(a) Confidential Information. Executive agrees to refrain (whether
during or after his employment with the Company) from disclosing or using,
except as permitted by this Agreement or otherwise authorized by the Company's
board of directors, any secrets or confidential information with respect to the
Company or any of the Company's direct or indirect wholly owned subsidiaries
(collectively the "Covered Entities"), including without limitation its trade
secrets, patents, affairs, business plans, strategic, commercial or financial
information other than information that is or becomes publicly available through
no fault of Executive (the "Confidential Information"). Confidential Information
may be used solely for the benefit of the Company, and Executive shall not make
any other use of such information. Executive agrees that all materials relating
to the business of any Covered Entity that are provided or made available to
Executive, or created by Executive, during the course of Executive's services to
the Company shall be and remain the property of the Company and/or the
applicable Covered Entity (subject to the terms of any separate agreement
between the Company and/or the affected Covered Entity), whether or not such
materials constitute or contain Confidential Information, and all copies of such
materials shall be returned to the Company immediately upon the termination of
Executive's services to the Company. In the event that the Company notifies the
Executive that it has entered into a confidentiality agreement with a Covered
Entity or with any affiliate of the Company with respect to confidential
information provided to the Company, the Executive shall comply with such
reasonable obligations thereunder as are applicable to the Executive.
(b) Innovations; Inventions. Executive hereby sells, transfers and
assigns to the Company all right, title and interest of Executive in and to any
and all inventions, ideas, disclosures and improvements of any kind or nature
whatsoever, whether patented or unpatented, and any and all copyrightable
materials, in either case whether made or conceived in whole or in part by
Executive alone or together with others during the initial term of this
Agreement or any renewal term, that (i) relate to any methods, designs,
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products, processes, apparatus, service or devices sold, leased used or under
construction or development by the Company or the Covered Entities, (ii) relate
to the business, functions or operations of the Company or the Covered Entities,
or (iii) arise from, in whole or in part, the efforts of Executive on behalf of
the Company. Executive will communicate and disclose to the Company promptly all
information, data and details pertaining to any inventions, ideas, disclosures
and improvements described above, in such form or format as the Company may
reasonably request. During the term of this Agreement or any renewal term and
thereafter, Executive will execute, acknowledge or deliver to the Company (at
the Company's expense) such formal transfers and assignments and such other
papers and documents as may be required of Executive to permit the Company to
file and prosecute any patent applications the Company desires to file and
prosecute relating to any of the foregoing, and, as to copyrightable material,
to obtain copyright thereon. Notwithstanding the foregoing, Executive
understands that this Agreement requires disclosure, but not assignment, of any
invention that qualifies under Section 49.44.140 of the Revised Code of
Washington, which provides, in part:
(1) A provision in an employment agreement which provides that an
employee shall assign or offer to assign any of the employee's rights in
an invention to the employer does not apply to an invention for which no
equipment, supplies, facilities, or trade secret information of the
employer was used and which was developed entirely on the employee's own
time, unless (a) the invention relates (i) directly to the business of the
employer, or (ii) to the employer's actual or demonstrably anticipated
research or development, or (b) the invention results from any work
performed by the employee for the employer. Any provision which purports
to apply to such an invention is to that extent against the public policy
of this state and is to that extent void and unenforceable.
(c) Notwithstanding the foregoing provisions of this Section 4 or
any other provision of this Agreement, nothing in this Agreement shall prohibit
or restrict Executive from: (i) providing information to, or testifying or
otherwise assisting in any investigation or proceeding brought by any federal
regulatory or law enforcement agency or legislative body, or any self-regulatory
organization; (ii) providing information to or assisting in an investigation by
the Company's designated legal, compliance and/or human resources officers; or
(iii) testifying, participating or otherwise assisting in a proceeding relating
to an alleged violation of any federal, state or municipal law relating to fraud
or any rule or regulation of the Securities and Exchange Commission or any
self-regulatory organization.
5. Non-Competition; Non-Solicitation.
(a) In view of the unique value to the Company of Executive's
services and because of the Confidential Information to be obtained by or
disclosed to Executive as described above, Executive agrees that, during the
term of this Agreement and for a period of one year thereafter, provided that
this Agreement is not terminated by the Company without Cause (as defined below)
or by the Executive for Good Reason (as defined below):
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(i) Executive will not directly or indirectly assist or become
associated with any Communication Service Provider (as defined below) in any
business of such provider that competes in any of the markets of any of the
Covered Entities, whether as a principal, partner, employee, consultant or
shareholder (other than as a holder of less than 5% of the outstanding voting
shares of any publicly traded company);
(ii) Executive will not directly or indirectly solicit for
employment or employ any employee of any of the Covered Entities, unless such
solicited person shall have ceased to be employed by any such entity for a
period of at least six months; and
(iii) Executive will not directly or indirectly solicit
business from customers of any of the Covered Entities, provided that the
foregoing shall not restrict Executive or any entity with which Executive is
associated from soliciting or doing business with any customer of any of the
Covered Entities, if such solicitation does not interfere with any business
relationship between such solicited customer and any of the Covered Entities.
(iv) For purposes of this Agreement, the term "Communication
Service Provider" means and includes any entity that derives twenty-five percent
or more of its revenues from the provision of voice and/or data communication
services to businesses and/or consumers regardless of the technology used to
provide such services and specifically includes, without limitation, internet
service providers, cable, wireless, satellite, landline, voice over internet
protocol and fixed mobile entities.
(b) If Executive violates any provision of Section 4 or Section
5(a), the Company shall be entitled to receive provable damages caused by such
breach, provided that Executive shall not be liable for indirect, special,
consequential or punitive damages (it being understood and agreed that this
remedy is in addition to, and not a limitation on, any injunctive relief or
other rights or remedies to which the Company is or may be entitled to at law or
in equity). Executive acknowledges and agrees that the Company's (and as
applicable, each Covered Entity's) remedies at law for a breach of any provision
of Section 4 or Section 5(a) would be inadequate and, in recognition of this
fact, Executive agrees that, in the event of such a breach, in addition to any
remedies at law, the Company and, as to Section 4, each Covered Entity, without
posting any bond, shall be entitled to obtain equitable relief in the form of
specific performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be available. As
provided in Section 10(i) hereof, the equitable remedies referenced in this
Section 5(b) shall be in addition to, and not in substitution for or exclusion
of, any other remedies available at law or in equity for any breach of either or
both of Sections 4 or 5. Executive and the Company each specifically acknowledge
and agree that the provisions of Sections 4 and 5 are for the express benefit of
each Covered Entity and that (i) no waiver, amendment or other modification of
Sections 4 or 5 with respect to a Covered Entity shall be effective unless it
has been consented to in writing by such Covered Entity, and (ii) each such
Covered Entity shall be entitled to enforce the provisions of Section 4 and/or 5
hereof (as appropriate) as fully and with the same rights and effect as if such
Covered Entity were a signatory party to this Agreement.
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(c) If any provisions of Section 4 or Section 5(a) are held to be
invalid or unenforceable, the remaining provisions shall nevertheless continue
to be valid and enforceable as though the invalid or unenforceable parts had not
been included.
6. Noncontravention. Executive represents and warrants to the Company that
Executive is free to enter into this Agreement and has no commitment,
arrangement or understanding to or with any party that restrains or is in
conflict with Executive's performance of the covenants, services and duties
provided for in this Agreement. Employee agrees to indemnify the Company and to
hold it harmless against any and all liabilities or claims arising out of any
unauthorized act or acts by Employee that, the foregoing representation and
warranty to the contrary notwithstanding, are in violation, or constitute a
breach of, any such commitment, arrangement or understanding.
7. Termination. This Agreement shall automatically terminate (and the term
of this Agreement shall thereupon terminate) upon the occurrence of any one of
the following events:
(a) Death. This Agreement shall terminate upon the death of
Executive.
(b) Disability. This Agreement shall terminate upon the Executive's
disability if Executive shall have been incapacitated from illness, accident or
other disability and unable to perform his normal duties hereunder for a
cumulative period of three months in any period of six consecutive months, and
no reasonable accommodation being available, upon either party giving the other
party not less than 30 days' written notice. In the event of a disagreement over
the nature of Executive's disability or the determination of whether Executive
is disabled, Executive agrees to be examined by a licensed physician that is
mutually agreeable to Executive and the Company.
(c) Expiration of the Agreement. This Agreement shall terminate upon
the Expiration Date or the scheduled expiration date of any renewal or extension
thereof in compliance with Section 1(b).
(d) Termination by the Company With Cause. This Agreement shall
terminate upon the Company's termination of Executive for Cause.
(e) Voluntary Termination by Executive. This Agreement shall
terminate upon Executive's voluntary resignation; provided, that Executive shall
provide the Company with no less than 30 days' written notice; provided,
further, that such voluntary resignation shall not relieve or release Executive
from any breach of this Agreement at or prior to the time of such resignation.
(f) Termination by the Company Without Cause. This Agreement shall
terminate upon the Company's termination of Executive for any reason other than
for Cause; provided, that the Company shall provide Executive with no less than
30 days' written notice of any such termination. For purposes of this Agreement,
the Company's
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failure to renew the Agreement for any subsequent one-year term shall be deemed
to be a termination of Executive without Cause.
(g) Termination by Executive for Good Reason. Upon the occurrence of
any event or the existence of any condition or circumstance constituting Good
Reason, Executive may by notice to the Board of Directors, deem a constructive
termination of this Agreement to have occurred.
8. Effect of Termination.
(a) Upon termination of this Agreement pursuant to Sections 7(a)
through (e), the Company shall compensate Executive (or, in the event of
Executive's death, his surviving spouse, if any, or his estate) for (x) accrued
but unused vacation time, (y) any base salary earned, but unpaid, for services
rendered to the Company on or prior to the date of termination and (z) amounts
which the Executive is otherwise entitled to receive under the terms of or in
accordance with any plan, policy, practice or program of, or contract or
agreement with the Company (including, without limitation, the plans and program
made available to Executive pursuant to Section 3(a)(iii)), as in effect
immediately prior to the date of such termination, at or subsequent to the date
of termination without regard to the performance by Executive of further
services or the resolution of any contingency, but subject to any and all
rights, remedies and claims of the Company against Executive.
(b) Subject to section 8(c) below, if Executive resigns for Good
Reason pursuant to Section 7(g) or his employment with the Company is terminated
without Cause pursuant to 7(f), the Company shall thereupon pay Executive the
following amounts and benefits as severance benefits: (i) all amounts payable
pursuant to Section 8(a), and (ii) a lump sum equal to one year's base salary
hereunder plus an amount equal to the most recent annual bonus, if any, received
by Executive pursuant to Section 3(a)(ii), and (iii) continued coverage for one
year under the Company's benefit plans made available to Executive in accordance
with Section 3(a)(iii) (other than the Company's 401(k) and stock purchase plans
and any life insurance policy previously maintained by the Company on the life
of Executive) on the same terms as other similarly situated employees of the
Company. If coverage under one or more of the Company's benefit plans may not be
continued because such continuation would adversely affect the tax-qualified
status of such benefit plans, Company may pay Executive a cash payment that is
the equal to the value of such continued coverage.
(c) Notwithstanding anything in this Agreement to the contrary,
Executive shall be eligible to receive a retention bonus, severance payment and
any other benefits set forth in that certain Nextel Partners Inc. Retention and
Severance Plan adopted by the Compensation Committee of the Board of Directors
of the Company on or about January 27, 2005, a copy of which is attached hereto
as Exhibit A and incorporated herein by this reference (the "Retention and
Severance Plan"), in accordance with the terms and conditions set forth in the
Retention and Severance Plan. If Executive qualifies for severance and the
continuation of benefits under the Retention and Severance Plan
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and also qualifies for severance and the continuation of benefits as set forth
in Section 8(b)(ii) and (iii) of this Agreement, Executive shall receive the
severance and benefits under the Retention and Severance Plan and not the
severance and benefits set forth in Section 8(b)(ii) and (iii) of this
Agreement; provided, however, that Executive shall be entitled to receive the
amounts set forth in Section 8(b)(i) of this Agreement and shall be eligible for
any retention bonus under the Retention and Severance Plan in addition to any
other applicable severance and benefits received. The retention bonus, severance
and other benefits which Executive is eligible to receive under the Retention
and Severance Plan are hereby incorporated into and made a part of this
Agreement and may not be modified, altered or amended in any manner that is
adverse to Executive without Executive's prior written consent. Any
modifications or amendments to the Retention and Severance Plan that are
consistent with this Agreement and are favorable to Executive shall be
automatically incorporated into this Agreement and made a part hereof.
(d) In accordance with the resolutions adopted by the Compensation
Committee of the Board of Directors of the Company on April 15, 2005, the
Company shall make any necessary additional payments (the "Gross-up Payments")
to Executive such that the net amount of the retention and severance payments
and other benefits (whether pursuant to the Retention and Severance Plan, this
Agreement or otherwise) (the "Compensation Payments") received by Executive,
after deduction of any tax imposed by Section 4999 of the Internal Revenue Code
or any successor to Section 4999 on the Compensation Payments and any U.S.
federal, state, and local income or payroll tax imposed on the Gross-up
Payments, but before any deduction for U.S. federal, state and local income or
payroll tax on the Compensation Payments, is equal to the Compensation Payments,
provided that the Company meets or exceeds the operating cash flow objectives
for 2005 adopted at the January 2005 meeting of the Compensation Committee of
the Board of Directors of the Company.
9. Definitions. As used herein, the following terms shall have the
following meanings set forth below:
"Cause" means (i) Executive's conviction of a felony evidencing criminal
dishonesty or moral turpitude, (ii) a willful and material breach of Executive's
duty of loyalty to the Company or (iii) after 20 business days following
Executive's receipt of written notice from the Company specifying the
particulars in reasonable detail, Executive'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 of directors (or specific written directions of the
chief executive officer) that are otherwise consistent with Executive's
employment agreement with the Company or any of their respective subsidiaries
and capable of being performed by him or (B) a willful and material breach of
Executive's duty of due care to the Company.
"Good Reason" means (i) a material adverse change in Executive's duties or
responsibilities, (ii) a relocation of Executive'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
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Executive, or a 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), and
(iv) a material breach by the Company of other obligations under Executive's
employment agreement with the Company or a subsidiary of the Company that is not
cured after 20 business days following the Company's receipt of a written
notification from Executive specifying the particulars in reasonable detail.
10. Miscellaneous.
(a) Merger; Amendment. This Agreement constitutes the entire
agreement between the parties with respect to the terms and conditions of
Executive's employment with the Company, and may be changed, extended or
modified only by an agreement in writing signed by the parties.
(b) Assignment. The rights and obligations of the Company in this
Agreement shall inure to its benefit and be binding upon its successors in
interest (whether by merger, consolidation, reorganization, sale of stock or
assets or otherwise). This Agreement shall also inure to the benefit of
Executive's heirs, executors, administrators and legal representatives. This
Agreement, being for the personal services of Executive, shall not be assignable
by Executive.
(c) Waiver of Breach. The waiver by any party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by any party.
(d) Arbitration. 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. The arbitrator shall be selected in
a manner that is mutually agreed upon by the parties. The arbitrator shall not
award special, consequential, or punitive damages. In the event of any
arbitration proceeding hereunder, the Company will (x) pay the fees and expenses
of the arbitrator and (y) advance the Executive's documented out-of-pocket costs
(including reasonable counsel fees and expenses) on a current basis, provided,
that if Executive 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), Executive will promptly
reimburse the Company for any expenses so advanced. Executive 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
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will in all events pay its own costs (including counsel fees and expenses) in
connection with any arbitration proceeding hereunder.
(e) Notices. 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 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 Executive:
Xxxxx Xxxxx
000 0xx Xxxxxx X.
Xxxxxxxx, XX 00000
(f) Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and the Agreement shall be construed in all respects as though such
invalid or unenforceable provision were omitted.
(g) Survival. The provisions of Sections 3(d), 4, 5, 8 and 10 shall
survive any termination of this Agreement.
(h) Governing Law. This Agreement shall be interpreted according to
the internal laws of the State of Washington, without regard to choice of law
rules that would result in the application of the laws of another state.
(i) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or the
beginning of the exercise of any thereof by any party shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by such
party.
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(j) Waiver of Jury Trial. Each of the parties hereto hereby
irrevocably waives any and all right to trial by jury in any legal proceeding
arising out of or related to this Agreement or the transactions contemplated
hereby.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NEXTEL PARTNERS OPERATING CORP.
By: ________________________________
Title: _____________________________
NEXTEL PARTNERS, INC.
By: ________________________________
Title: _____________________________
____________________________________
Xxxxx Xxxxx
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