Exhibit 10.38


 


EMPLOYMENT AGREEMENT


 


This
Employment Agreement, dated as of February 24, 2003 is entered into between
Nextel Partners Operating Corp., a Delaware corporation, Nextel Partners, Inc.,
a Delaware corporation (collectively the “Company”), and Mark Fanning,
(“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 People Development
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 of one year commencing on the date of this Agreement and
continuing until February 24, 2004 (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 human resources and
organizational development 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 and shall be subject to
the overall supervision of the Chief Executive Officer.


 

















 


3.                                       Compensation
and Benefits.


 


(a)  Salary and Bonus.


 


(i)  The Company shall pay Executive a base
salary in the annual amount of $210,000 payable in accordance with the
Company’s normal payroll practices.


 


(ii)  The Company shall (subject to 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
seventy-five percent (75%) of Executive’s then current base salary (or such
higher amount as the Compensation Committee may approve), and shall offer to
Executive a benefits package equivalent to that provided to the Company’s other
senior executive’s, including, but not limited to, 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.


 


(iii)  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.  Upon termination of Executive’s services under this Agreement,
Executive will be paid for unused vacation time earned through the last
completed month of service, computed at the rate of ten hours per month.


 


(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


 


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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, 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”).  Executive may disclose
or communicate only such information as is reasonable required or specifically
approved by the Board of Directors or authorized management personnel of the
Company designated by the Board of Directors in connection with Executive’s services.  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 its Parent Companies and 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,
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


 


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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.


 


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 or by the Executive for Good Reason:


 


(i)  Executive will not directly or indirectly
assist or become associated with any wireless voice communication service
provider 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.


 


(b)  If Executive violates any
provision of Section 4 or Section 5(a), the Company shall be entitled to
receive from Executive reimbursement for any and all 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


 


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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.


 


(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.  The execution, delivery and performance by
Executive of this Agreement does not and will not (i) violate any applicable
law, rule, regulation, judgment, injunction, order or decree or (ii) require
any consent or other action by any person under, constitute a default under
(with due notice or lapse of time or both), or give rise to any right of termination,
cancellation or acceleration of any right or obligation of Executive or to a
loss of any material benefit to which Executive is entitled under any provision
of any agreement or other instrument binding upon Executive, to the extent that
any of the foregoing would have a material adverse effect on Executive or would
prevent or otherwise render unable Executive to perform his obligations under
this Agreement.


 


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 of Executive.


 


(b)  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.


 


(c)  The Expiration Date or the
scheduled expiration date of any renewal or extension thereof in compliance
with Section 1(b).


 


(d)  By the Company for Cause.


 


(e)  By the 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, whereupon Executive shall be
entitled to compensation set forth in Section 8(b).


 


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(f) Upon not less than 30 days written notice from Executive to the
Company of his voluntary resignation; provided 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.


 


8.                                       Effect
of Termination.


 


(a)  Upon termination of this
Agreement pursuant to Sections 7(a), (b), (c), (d) or (f), 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, 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)  If Executive resigns for
Good Reason or his employment with the Company is terminated without Cause, the
Company shall thereupon pay Executive the following amounts 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).


 


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) 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, responsibilities or reporting relationships, (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 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), or any other material
adverse change in his working conditions, and (iv) a material breach by the


 


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Company of other obligations under Executive’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
Executive specifying the particulars in reasonable detail.


 


“Shareholders’ Agreement” means that certain Amended and Restated
Shareholders’ Agreement dated as of February 18, 2000 among Nextel Partners,
Inc. and the shareholders named therein, as such agreement may be amended and
modified from time to time.


 


10.                                 Miscellaneous.


 


(a)  Merger; Amendment.  This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, 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), provided that Executive shall not remain bound by this
Agreement unless such successor assumes all of the obligations of the Company
hereunder.  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 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


 


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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.


 


(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.


4500 Carillon Point


Kirkland, WA 98033


Attention: General Counsel


Facsimile: 425-576-3666


 


If to Executive:


 


Mark Fanning


4500 Carillon Point


Kirkland, WA 98033


Facsimile: 425-576-3666


 


And to:


 


Mark Fanning


8614 NE 121st
Place


Kirkland,
WA  98034


 


(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.


 


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(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.


 


(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.


 


IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.


 


	
   

  	
   

  	
   

  	
   

  	
  NEXTEL PARTNERS OPERATING CORP.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By: 

  	
  /s/ John Chapple

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  President, Chief Executive Officer and

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Chairman of the Board

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  NEXTEL PARTNERS, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By: 

  	
  /s/ John Chapple

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  President, Chief Executive Officer and

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Chairman of the Board

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Mark Fanning

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Mark Fanning

  	
   

  
									



 


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