Exhibit 10.2(e)


 


AMENDMENT NO. 5


TO


THE AMENDED AND RESTATED SHAREHOLDERS’
AGREEMENT


 


THIS AMENDMENT
NO. 5 TO THE AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT (“Amendment”) is
effective as of June 13, 2002 and is entered into by and among Nextel Partners,
Inc., a Delaware corporation (the “Company”), and the shareholders listed on
the signature pages hereto (collectively, the “Signatories”).


 


WHEREAS, the
parties hereto are parties to that certain Shareholders’ Agreement, dated as of
January 29, 1999, as amended and restated on February 18, 2000, by and among
the Company and the other parties specified therein, 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, as further
amended by Amendment No. 2 thereto effective as of March 20, 2001, by and among
the Company and the other parties specified in such Amendment No. 2, as further
amended by Amendment No. 3 thereto effective as of April 18, 2001, by and among
the Company and the other parties specified in such Amendment No. 3, and as
further amended by Amendment No. 4 thereto effective as of July 25, 2001, by
and among the Company and the other parties specified in such Amendment No. 4
(collectively, 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.                                       Amendments
to Section 2.01.  Existing Section
2.01(a) of the Shareholders’ Agreement is hereby deleted and replaced in its
entirety with the following new Section 2.01(a):


 


“SECTION 2.01                                          Composition of the Board. (a) The Board
shall consist of seven members, of whom two shall be designated in accordance
with the Company’s Restated Certificate of Incorporation (the “Certificate”)
and Bylaws, one of whom shall be nominated by DLIMB (such director, a “DLIMB Nominee”), but who will otherwise be
elected in accordance with the Certificate and Bylaws, one of whom shall be
designated by NWIP (such director, a “NWIP
Designee”), one of whom shall be designated by Eagle River (such
director, an “Eagle River Designee”),
one of whom shall be designated by MDP (such director, an “MDP Designee”), and one of whom shall be
the chief executive officer of the Company.”


 


In addition, the reference in
Section 2.01(c) of the Shareholders’ Agreement to “six” members of the Board of
Directors is hereby amended to “seven.”


 


2.                                       Amendment
to Section 3.04(a). Section 3.04(a) of the Shareholders’ Agreement is
hereby amended such that the reference to “30%” contained in Section 3.04(a)(i)
is changed to “38%.”


 

















 


3.                                       New
Section 3.11.  There is hereby
inserted into the Shareholders’ Agreement a new Section 3.11, immediately after
existing Section 3.10 and immediately prior to new Section 3.12 which shall
read as follows:


 


“SECTION 3.11                                          Special Eagle River Transfer Right.  The parties to the Shareholders’ Agreement
consent to, acknowledge and agree that Eagle River may transfer 7,378,549 of
Eagle River’s Shares to Cascade Investment, LLC., a Washington limited
liability company (“Cascade”). It is understood and agreed that (i) such
transfer of the Shares 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 except that such transfer of Shares shall count
towards the 38% limit imposed on Eagle River as set forth in Section 3.04(a)(i)
as modified by this Amendment No. 5, (ii) such transfer of the Shares 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 such
transfer shall be solely responsible for assuring such compliance; (iii) the
transferred Shares, immediately following the transfer to Cascade, shall no
longer be subject to any of the provisions of the Shareholders’ Agreement,
except as provided in clause (iv); and (iv) in the event that any of the Shares
transferred to Cascade are subsequently transferred to Eagle River, any other
member of the McCaw Group or any of their respective Permitted Transferees,
such Shares thereupon shall immediately again become subject to the provisions
of this Agreement, and this Section 3.11 shall not operate to exempt such
Shares from the restrictions on transfer and related processes imposed pursuant
to other paragraphs of Article 3.”


 


4.                                       New
Section 3.12.  There is hereby
inserted into the Shareholders’ Agreement a new Section 3.12, immediately after
new Section 3.11 and immediately prior to new Section 3.13, which shall read as
follows:


 


“SECTION 3.12. Special Eagle River Restrictions. Eagle River agrees that on
or before December 31, 2002, it shall not sell any Shares of the Company’s
capital stock held by Eagle River (i) in a transaction or series of
transactions directly with a “market maker,” as that term is defined in Section
3(a) (38) of the Securities Exchange Act of 1934, or (ii) in any Public
Offering (as defined in the Shareholders’ Agreement); provided, that, the
foregoing shall not restrict Eagle River’s ability to transfer or sell shares
to its Permitted Transferees (as defined in the Shareholders’ Agreement).”


 


5.                                       New
Section 3.13. There is hereby inserted into the Shareholders’ Agreement a
new Section 3.13, immediately after new Section 3.12 and immediately prior to
existing Article 4, which shall read as follows:


 


“SECTION 3.13. In Kind Distributions. The parties to the Shareholders’ Agreement
consent to, acknowledge and agree that each of DLIMB and MDP may make
distributions in kind of their respective Company Common Stock (the
“Distributed Shares”) to their respective limited partners (the “In-Kind
Distributions”). It is understood and agreed that (i) the In-Kind Distributions
need not be made in compliance


 


2

















 


with any of
the restrictions on transfer and related processes imposed pursuant to any
other provisions of this Agreement, (ii) the In–Kind Distributions shall only
be made in compliance with, and to the extent permitted by, applicable laws,
rules, regulations or statutes, and the parties involved in such transfer shall
be solely responsible for assuring such compliance, (iii) the Distributed
Shares, immediately following the In-Kind Distribution shall no longer be
subject to any of the provisions of the Shareholders’ Agreement, (iv) DLIMB and
MDP shall be allowed to make the In-Kind Distributions not more often than once
each calendar quarter, and (v) DLIMB and MDP shall be  allowed to distribute no more than three million Shares each per
calendar year and no more than one million shares each per calendar quarter.”


 


6.                                       Removal
of Janet Thompson from Shareholders’ Agreement. The parties to the
Shareholders’ Agreement hereby agree that from and after the date of this
Amendment (i) Janet Thompson shall no longer be a party to the Shareholders’
Agreement and shall not be subject to any of the obligations or accorded any of
the rights and benefits thereunder; (ii) all Shares now held by Janet Thompson
or that may be hereafter transferred to her by John Thompson shall no longer be
subject to the provisions of the Shareholders’ Agreement, and (iii) the
restrictive legend set forth in Section 3.02 of the Shareholders’ Agreement may
be removed from the Shares held by or hereafter transferred to Janet Thompson
by John Thompson.


 


7.                                       Amendment
to Section 6.03. Existing Section 6.03 of the Shareholders’ Agreement is hereby
deleted and replaced in its entirety with the following new Section 6.03:


 


SECTION 6.03                    Holdback Agreements.                   With respect to
each and every Underwritten Public Offering: (a) each Shareholder agrees not to
effect any public sale or distribution, including any sale pursuant to Rule
144, or any successor provision, under the Securities Act, of any Registrable
Securities (in each case, other than as part of such Underwritten Public
Offering) during the 10 business days preceding the date scheduled for the
beginning of the “road show” to be conducted by the Company executives in
connection with such offering (as determined by the managing underwriter in
good faith) or, if a shorter time period upon the date of receipt of notice of
the date scheduled for such Underwritten Public Offering, and ending not later
than the earlier to occur of (i) 90 days following the effective date of the
registration statement filed in connection with the Underwritten Public
Offering, (ii) the date that the Company and the managing underwriter determine
not to complete the Underwritten Public Offering within 10 days following the
completion of the road show, or (iii) 60 days after the start of the holdback
period if the offering has not commenced by that date; provided, however, that
the holdback period for such Underwritten Public Offering shall not exceed 120
days in aggregate.  A holdback period
for a subsequent Underwritten Public Offering shall not begin sooner than 120
days after the end of a prior holdback period; provided that this 120-day
interval period shall not apply where the Company and the managing underwriter
have determined not to proceed with the Underwritten Public Offering following
the road show, provided further, if the Company provides notice of a new
holdback period within the 120-day period following termination of the prior
holdback


 


3

















 


period (as a
result of a determination not to proceed with the Underwritten Public Offering)
then in such case the maximum number of days for which the new holdback period
may apply shall be 120 days less the number of days during which the prior
holdback period was effective.


 


(b) Each
Shareholder agrees that, so long as the DLI Entities or the MDP Entities, as
the case may be, have the right to request one or more Demand Registrations
under Section 6.01, such Shareholder will not effect any public sale or
distribution, including any sale pursuant to Rule 144, or any successor
provision, under the Securities Act, of any Registrable Securities, during the
10 business days preceding the date scheduled for the beginning of the “road
show” to be conducted by the Company executives in connection with such
offering (as determined by the managing underwriter in good faith) or, if a
shorter time period, upon the date of receipt of notice of the date scheduled
for such Underwritten Public Offering, and ending not later than the earlier to
occur of (i) 90 days following the effective date of the registration statement
filed in connection with the Underwritten Public Offering, (ii) the date that
the Company and the managing underwriter determine not to complete the
Underwritten Public Offering within 10 days following the completion of the
road show, or (iii) 60 days after the start of the holdback period if the offering
has not commenced by that date; provided, however, that the holdback period for
such Underwritten Public Offering shall not exceed 120 days in aggregate. A
holdback period for a subsequent Underwritten Public Offering shall not begin
sooner than 120 days after the end of a prior holdback period; provided that
this 120 day interval period shall not apply where the Company and the managing
underwriter have determined not to proceed with the Underwritten Public
Offering following the road show; provided further, if the Company provides
notice of a new holdback period within the 120-day period following termination
of the prior holdback period (as a result of a determination not to proceed
with the Underwritten Public Offering), then in such case the maximum number of
days for which the new holdback period may apply shall be 120 days less the
number of days during which the prior holdback period was effective.


 


8.                                       Capitalized
Terms. Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Shareholders’ Agreement.


 


SIGNATURE PAGES TO FOLLOW


 


4

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Amendment No. 5 to the Amended and
Restated Shareholders’ Agreement to be duly executed by their respective
authorized officers.


 


	
   

  	
  NEXTEL PARTNERS, INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JOHN
  CHAPPLE

  	
   

  
	
   

  	
   

  	
  Name: John
  Chapple

  
	
   

  	
   

  	
  Title:
  President, CEO and Chairman

  
	
   

  	
   

  	
  Date:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEXTEL WIP CORP., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TIMOTHY
  DONAHUE

  	
   

  
	
   

  	
   

  	
  Name:
  Timothy Donahue

  
	
   

  	
   

  	
  Title:
  President and CEO

  
	
   

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DLJ MERCHANT BANKING PARTNERS II, L.P., a

  Delaware Limited Partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ANDREW
  RUSH

  	
   

  
	
   

  	
   

  	
  Name: Andrew
  Rush

  
	
   

  	
   

  	
  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/ ANDREW
  RUSH

  	
   

  
	
   

  	
   

  	
  Name: Andrew
  Rush

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
  Date:

  



 


5

















 


	
   

  	
  DLJ OFFSHORE PARTNERS II, C.V., a Netherlands

  Antilles Limited Partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  DLJ Merchant
  Banking II, Inc., as advisory general

  partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ANDREW
  RUSH

  	
   

  
	
   

  	
   

  	
  Name: Andrew
  Rush

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DLJ DIVERSIFIED PARTNERS, L.P., a Delaware

  Limited Partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  DLJ
  Diversified Partners, L.P., as managing

  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ANDREW
  RUSH

  	
   

  
	
   

  	
   

  	
  Name: Andrew
  Rush

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DLJ DIVERSIFIED PARTNERS-A, L.P., a Delaware

  Limited Partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  DLJ
  Diversified Partners, Inc., as managing

  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ANDREW
  RUSH

  	
   

  
	
   

  	
   

  	
  Name: Andrew
  Rush

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
  Date:

  
					



 


6

















 


	
   

  	
  DLJ MILLENNIUM PARTNERS-A, L.P., a Delaware

  Limited Partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DLJ Merchant
  Banking II, Inc., as managing 

  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ANDREW
  RUSH

  	
   

  
	
   

  	
   

  	
  Name: Andrew
  Rush

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
  Date:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DLJ MILLENNIUM PARTNERS-A, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DLJ Merchant
  Banking II, Inc. as managing

  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ANDREW
  RUSH

  	
   

  
	
   

  	
   

  	
  Name: Andrew
  Rush

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DLJMB FUNDING II, INC. a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ANDREW
  RUSH

  	
   

  
	
   

  	
   

  	
  Name: Andrew
  Rush

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
   

  	
  DLJ FIRST ESC, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DLJLBO Plans
  Management corporation, as

  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ANDREW
  RUSH

  	
   

  
	
   

  	
   

  	
  Name: Andrew
  Rush

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
  Date:

  



 


7

















 


	
   

  	
  DLJEAB PARTNERS, L.P.,

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DLJLBO Plans
  Management Corporation, as

  managing general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ANDREW
  RUSH

  	
   

  
	
   

  	
   

  	
  Name: Andrew
  Rush

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
   

  	
  DLJESCII, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DLJLBO Plans
  Management Corporation, as

  manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ANDREW
  RUSH

  	
   

  
	
   

  	
   

  	
  Name: Andrew
  Rush

  
	
   

  	
   

  	
  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/ ANDREW
  RUSH

  	
   

  
	
   

  	
   

  	
  Name: Andrew
  Rush

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
  Date:

  



 


8

















 


	
   

  	
  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/ ANDREW
  SINWELL

  	
   

  
	
   

  	
   

  	
  Name:  Andrew Sinwell

  
	
   

  	
   

  	
  Title:  Managing Director

  
	
   

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
   

  	
  EAGLE RIVER INVESTMENTS, L.L.C., a

  Washington limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DENNIS
  WEIBLING

  	
   

  
	
   

  	
   

  	
  Name:  Dennis Weibling

  
	
   

  	
   

  	
  Title:  Vice Chairman

  
	
   

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
   

  	
  MOTOROLA, INC., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ KEITH J.
  BANE

  	
   

  
	
   

  	
   

  	
  Name:  Keith J. Bane

  
	
   

  	
   

  	
  Title:  Executive Vice President

  
	
   

  	
   

  	
  Date:  June 20, 2002

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ JOHN
  CHAPPLE

  	
   

  
	
   

  	
  JOHN CHAPPLE

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ PERRY
  SATTERLEE

  	
   

  
	
   

  	
  PERRY
  SATTERLEE

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ MARK
  FANNING

  	
   

  
	
   

  	
  MARK FANNING

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ JOHN
  THOMPSON

  	
   

  
	
   

  	
  JOHN
  THOMPSON

  



 


9

















 


	
   

  	
  /s/ DAVID
  THALER

  	
   

  
	
   

  	
  DAVID THALER

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ DAVID
  AAS

  	
   

  
	
   

  	
  DAVID AAS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JRC-JRT, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JOHN D.
  THOMPSON

  	
   

  
	
   

  	
   

  	
  Name: John
  D. Thompson

  
	
   

  	
   

  	
  Title:
  Manager

  
	
   

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JRC COHO, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JOHN H.
  CHAPPLE

  	
   

  
	
   

  	
   

  	
  Name: John
  H. Chapple

  
	
   

  	
   

  	
  Title:
  Manager

  
	
   

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PSS-MSS, LP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ PERRY
  SATTERLEE

  	
   

  
	
   

  	
   

  	
  Name: Perry
  Satterlee

  
	
   

  	
   

  	
  Title:
  General Partner

  
	
   

  	
   

  	
  Date:

  



 


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