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 or a Change in
Control of Nextel, 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 7/31/05 12,500
On 8/1/05 and on or before 7/31/06 25,000
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.
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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 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
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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.
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
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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 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.
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(h) The Purchaser and his representatives, including his
professional, financial, tax and other advisors, have carefully reviewed
all documents available to them in connection with the investment in the
Shares, and the Purchaser understands and has taken cognizance of all the
risks related to such investment.
(i) The Purchaser and his representatives have been given the
opportunity to examine all documents and to ask questions of, and to
receive answers from, the Company and its representatives concerning the
terms and conditions of the acquisition of the Shares and related matters
and to obtain all additional information which the Purchaser or his
representatives deem necessary.
(j) All information that the Purchaser has provided to the Company
and its representatives concerning the Purchaser and his financial
position is true, complete and correct.
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
(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.
(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
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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 ____________________________
Name:
Title:
_______________________________
Xxxxx X. Xxxxx
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