EXHIBIT 10.74(a)
AMENDED AND RESTATED
RESTRICTED STOCK PURCHASE AGREEMENT
(DIRECTORS)
THIS AMENDED AND RESTATED RESTRICTED STOCK PURCHASE AGREEMENT, dated
as of May 9, 2005 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 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 that certain Restricted
Stock Purchase Agreement dated as of _________, _____ (collectively this
"Agreement" or "RSPA");
WHEREAS, the Compensation Committee of the Board of Directors of the
Company, with Purchaser abstaining, 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 (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.
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"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.
"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
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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 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 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 merely by reason of any creditor of the Company foreclosing on
or otherwise causing the sale, transfer or other disposition of all or any
substantial part of the Company's assets (including, without limitation,
the Company's equity interests in its subsidiaries).
"Change in Control of Nextel" means the occurrence of any of the
following events:
(a) any person or group (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act and the regulations thereunder) (i) is or
becomes the Beneficial Owner of more than 50% of the total voting stock of
Nextel ordinarily entitled to vote in the election of directors ("Nextel
Voting Stock") or Total Common Equity of Nextel, or (ii) otherwise has the
power to direct the management and policies of Nextel, directly or through
one or more intermediaries, whether through the ownership of voting
securities, by contract or otherwise (without limiting the generality of
this clause (ii), any person or group that succeeds to the rights
currently held by XxXxx and his Affiliates in respect of Nextel, or
otherwise has powers and rights comparable thereto, shall be deemed for
purposes of this definition to have the power to direct the management and
policies of Nextel), except that no change of control will be deemed to
have occurred under this clause (ii) as a result of customary rights
granted (A) in any indenture, credit agreement or other agreement for
borrowed money unless and until there has been a default under the terms
of that agreement and the trustee or lender exercises the rights granted
therein or (B) to holders of non-convertible, mandatorily redeemable,
preferred stock unless and until action occurs that would otherwise cause
a "Change in Control of Nextel" as herein defined, provided that such
rights were granted pursuant to a transaction in the financial markets and
not as part of a strategic alliance or similar transaction;
(b) Nextel sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any Person (other
than a direct or indirect wholly owned subsidiary of Nextel);
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(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 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;
"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 involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
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"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.
"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).
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"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.
2. Purchase and Sale.
(a) The Company has sold to the Purchaser, and the Purchaser has
purchased from the Company, an aggregate of _____________ (_______) shares
of the Company's Class A Common Stock (the "Shares"), at the price of $.01
per share.
(b) The Purchaser has delivered to the Company a check payable to
the Company in the amount of ____________________ ($______) representing
the aggregate purchase price of the Shares, and the Company has delivered
to the Escrow Agent 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.
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(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) $.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 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.
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(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 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.
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(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.
(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
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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 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. To
the extent that the Purchaser is a party to a prior restricted stock
purchase agreement governing the Shares, such prior agreement shall be
superceded in its entirety by this Agreement.
(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:
_________
_________
_________
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(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. 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
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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 ___________________________
Name:
Title:
_______________________________
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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 ________ ________ ________
Shares Vested (Annual) _______ ______ _______
Shares Vested (Cumulative) _______ _______ _______
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