AMENDMENT NO. 2 TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
Exhibit 10.2(b)
AMENDMENT
NO. 2
TO
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
THIS AMENDMENT NO. 2 TO THE AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT is effective as of March 20, 2001 and is entered into by and among Nextel Partners, Inc., a Delaware corporation (the “Company”) and the shareholders listed on the signature pages hereto.
WHEREAS, the parties hereto are parties to that certain Shareholders’ Agreement, dated as of January 29, 1999(the “Original Shareholders’ Agreement”) as amended and restated on February 18, 2000, by and among the Company and the other parties specified therein and as further amended by Amendment No. 1 thereto effective as of February 22, 2000, by and among the Company and the other parties specified in such Amendment No. 1 (the “Shareholders’ Agreement”);
WHEREAS, the parties have determined to amend the Shareholders’ Agreement in accordance with Section 8.04 thereof, as provided herein;
NOW, THEREFORE, each of the parties hereto agrees to amend the Shareholders’ Agreement as follows:
1. New Section 3.09. There is hereby inserted into the Shareholders' Agreement a new Section 3.09, immediately after existing Section 3.08 and immediately prior to existing Article 4, which shall read as follows:
"Section 3.09 Special Eagle River Transfer Rights. Notwithstanding anything in this Agreement to the contrary : (a) Eagle River and any member of the XxXxx Group that would be a Permitted Transferee of Eagle River (as determined in accordance with clause (vii) of the defined term "Permitted Transferee" appearing in Section 1.01 of this Agreement) may, in the context of a bona fide loan transaction in which such party or parties is or are extended credit by one or more financial institutions or other lenders, transfer any or all of the Shares owned by such party or parties, by way of a pledge of such Shares as collateral security for the loan(s) so extended, to or for the benefit of the financial institutions or other lenders extending such loans (a "Pledgee Lender") and (b) each Pledgee Lender (or any agent acting on its behalf) may take possession of and subsequently transfer, in the context of a bona fide enforcement repossession of the Shares as collateral security for a loan or loans (following a declaration of default regarding such loan or loans), any or all of the Shares that have been pledged to or for the benefit of such Pledgee Lender. It is understood and agreed that (i) any transfer of Shares permitted by the foregoing clauses (a) and /or (b) need not be made in compliance with any of the restrictions on transfer and related processes imposed pursuant to any other provisions of this Agreement, (ii) any transfer of Shares permitted by the foregoing clauses (a) and (b) nonetheless shall only be made in compliance with, and to the extent permitted by, applicable laws, rules, regulations or statutes, and that the parties involved in any such transfer shall be solely responsible for assuring such compliance and (iii) if, following a transfer of the type described in clause (a) above, the Shares subject to any such pledge arrangement are transferred (whether by return of or on behalf of the Pledgee Lender(s) upon satisfaction of the relevant loan obligations, in substitution for other collateral security, by release or otherwise) to Eagle River, any other member of the XxXxx Group or any of their respective Permitted Transferees, such Shares thereupon shall immediately again become subject to the provisions of Article 3 of this Agreement, and this Section 3.09 shall not operate to exempt such shares from the restrictions on transfer and related processes imposed pursuant to the other provisions of Article 3 (except in the context of a subsequent pledge of such Shares made in accordance with clause (a) of this Section 3.09)."
2. Definitions and Miscellaneous.
(a) Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Shareholders’ Agreement.
(b) Each of the Shareholders identified on Annex A hereto confirms that, as of March 20, 2001, it is the beneficial owner and holder of record of that number of shares of the Company's Capital Stock that constitute Voting Stock, as set forth opposite such Shareholder's name on Annex A, and that such Shareholder has sole voting and dispositive power over such shares.
SIGNATURE PAGES TO FOLLOW
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to Amended and Restated Shareholders’ Agreement to be duly executed by their respective authorized officers.
| NEXTEL PARTNERS, INC., a Delaware corporation | |
| By: /s/ Xxxxxx X. Xxxxxxx
|
|
| Name: Xxxxxx X. Xxxxxxx | |
| Title: Vice President & General Counsel | |
| Date: March 20, 2001 | |
| NEXTEL WIP CORP., a Delaware corporation | |
| By: /s/ Xxxxxxx X. Xxxxxxx
|
|
| Name: Xxxxxxx X. Xxxxxxx | |
| Title: Vice President | |
| Date: Xxxxx 00, 0000 | |
| XXX MERCHANT BANKING PARTNERS II, L.P., a Delaware Limited Partnership | |
| By: DLJ Merchant Banking II, Inc., as managing general partner | |
| By: /s/ Xxxx Xxxx
|
|
| Name: Xxxx Xxxx | |
| Title: Managing Director | |
| Date: |
| DLJ MERCHANT BANKING PARTNERS II - A, L.P., a Delaware Limited Partnership | |
| By: DLJ Merchant Banking II, Inc., as managing general partner | |
| By: /s/ Xxxx Xxxx
|
|
| Name: Xxxx Xxxx | |
| Title: Managing Director | |
| Date: | |
| DLJ OFFSHORE PARTNERS II, C.V., a Netherlands Antilles Limited Partnership | |
| By: DLJ Merchant Banking II, Inc., as advisory general partner | |
| By: /s/ Xxxx Xxxx
|
|
| Name: Xxxx Xxxx | |
| Title: Managing Director | |
| Date: | |
| DLJ DIVERSIFIED PARTNERS, L.P., Inc., a Delaware Limited Partnership | |
| By: DLJ Diversified Partners, Inc., as managing general partner | |
| By: /s/ Xxxx Xxxx
|
|
| Name: Xxxx Xxxx | |
| Title: Managing Director | |
| Date: | |
| DLJ DIVERSIFIED PARTNERS-A, L.P., Inc., a Delaware Limited Partnership | |
| By: DLJ Diversified Partners, Inc., as managing general partner | |
| By: /s/ Xxxx Xxxx
|
|
| Name: Xxxx Xxxx | |
| Title: Managing Director | |
| Date: |
| DLJ MILLENIUM PARTNERS, L.P., a Delaware Limited Partnership | |
| By: DLJ Merchant Banking II, Inc., as managing general partner | |
| By: /s/ Xxxx Xxxx
|
|
| Name: Xxxx Xxxx | |
| Title: Managing Director | |
| Date: | |
| DLJ MILLENIUM PARTNERS-A, L.P. | |
| By: DLJ Merchant Banking II, Inc., as advisory general partner | |
| By: /s/ Xxxx Xxxx
|
|
| Name: Xxxx Xxxx | |
| Title: Managing Director | |
| Date: | |
| DLJMB FUNDING II, INC., a Delaware Corporationp | |
| By: /s/ Xxxx Xxxx
|
|
| Name: Xxxx Xxxx | |
| Title: Managing Director | |
| Date: | |
| DLJ LBO Plans Management Corporation, as manager | |
| By: /s/ Xxxx Xxxx
|
|
| Name: Xxxx Xxxx | |
| Title: Managing Director | |
| Date: |
| DLJ
EAB PARTNERS, L.P. |
||
| By: |
DLJ
LBO Plans Management Corporation, as managing general partner |
|
| By: | /s/ Xxxx Xxxx
|
|
| Name: | Xxxx Xxxx | |
| Title: | Managing Director | |
| Date: | ||
| DLJ
ESC II, L.P. |
||
| By: |
DLJ
LBO Plans Management Corporation, as manager |
|
| By: | /s/ Xxxx Xxxx
|
|
| Name: | Xxxx Xxxx | |
| Title: | Managing Director | |
| Date: | ||
| UK
INVESTMENT PLAN 1997 PARTNERS, a Delaware Limited Partnership |
||
| By: |
UK
Investment Plan 1997 Partners, Inc. as general partner |
|
| By: |
/s/
Xxxx Xxxx
|
|
| Name: | ||
| Title: | ||
| Date: | ||
| MADISON
DEARBORN CAPITAL PARTNERS II, L.P. |
||
| By: |
Madison
Dearborn Partners II, L.P., its General Partner |
|
| By: |
Madison
Dearborn Partners, Inc., its General Partner |
|
| By: | /s/ Xxxxxx X. Xxxxxxx
|
|
| Name: | Xxxxxx X. Xxxxxxx | |
| Title: | Managing Director | |
| Date: | 3/21/01 | |
| EAGLE
RIVER INVESTMENTS, LLC, a Washington limited liability company |
||
| By: | /s/ Xxxxxx Xxxxxxxx
|
|
| Name: | Xxxxxx Xxxxxxxx | |
| Title: | President | |
| Date: | ||
| MOTOROLA, INC., a Delaware corporation | ||
| By: | /s/ Xxxxx X. Sane
|
|
| Name: | ||
| Title: | ||
| Date: | ||
| XXXX
XXXXXXX |
||
| /s/ Xxxx Xxxxxxx
|
||
| Date: |
||
| XXXXX
XXXXXXXXX |
||
| /s/ Xxxxx Xxxxxxxxx
|
||
| Date: |
||
| XXXX
XXXXXXX |
||
| /s/ Xxxx Xxxxxxx
|
||
| Date: |
||
| XXXX
XXXXXXXX |
||
| /s/ Xxxx X. Xxxxxxxx
|
||
| Date: |
||
| XXXXX
XXXXXX |
||
| /s/ Xxxxx Xxxxxx
|
||
| Date: |
3/21/01 |
|
| XXXXX
AAS |
||
| /s/ Xxxxx X. Aas
|
||
| Date: |
||
| JDT-JRT
L.L.C. |
||
| By: |
Xxxx
X. Xxxxxxxx, Manager |
|
| By: | /s/ Xxxx X. Xxxxxxxx |
|
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Manager |
|
| Date: |
||
| JRC
COHO L.L.C. |
||
| By: |
Xxxx
X. Xxxxxxx, Manager |
|
| By: | /s/ Xxxx X. Xxxxxxx
|
|
| Name: | Xxxx X. Xxxxxxx | |
| Title: | Manager |
|
| Date: |
||
| PSS-MSS,
LP |
||
| By: |
Xxxxx
Xxxxxxxxx, General Partner |
|
| By: | /s/ Xxxxx Xxxxxxxxx
|
|
| Date: | ||
ANNEX A
TO
AMENDMENT NO. 2
TO
AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT
| Shareholder | Company Capital Stock Beneficially Owned |
| DLJ Merchant Banking Ptr. II LP | 17,973,750 Class A Common |
| DLJ Merchant Banking Ptr. II-A, LP | 715,800 Class A Common |
| DLJ Offshore Partners II, CV | 883,854 Class A Common |
| DLJ Diversified Partners, LP | 1,050,822 Class A Common |
| DLJ Diversified Partners-A, LP | 390,246 Class A Common |
| DLJ EAB Partners, LP | 80,700 Class A Common |
| DLJ ESC II, LP | 3,814,334 Class A Common |
| DLJ First ESC, LP | 34,590 Class A Common |
| DLJ Millenium Partners, LP | 290,616 Class A Common |
| DLJ Millenium Partners-A, LP | 56,676 Class A Common |
| DLJMB Funding II, Inc. | 2,840,980 Class A Common |
| UK Investment Plan 1997 Partners | 400,764 Class A Common |
| Madison Dearborn Capital Ptrs II, LP | 27,218,904 Class A Common |
| Eagle River Investments LLC | 19,500,012 Class A Common |
| Motorola, Inc. | 13,076,376 Class A Common |
| Nextel Partners Management | 9,831,636 Class A Common |
| Nextel WIP Corp. | 79,056,228 Class B Common 13,110,000 Series B Preferred |
