Exhibit 10.38


 


EMPLOYMENT AGREEMENT

Amended and Restated as of February 24, 2004


 


This Employment Agreement, dated as of February 24, 2004 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 – Partner
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, 2005 (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 the
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
Company’s board of directors or the Company’s chief executive officer (to the
extent not inconsistent with the duties assigned to him by the board of
directors).  Executive shall report
directly to the chief executive officer and shall be subject to his supervision
and the overall supervision of the board of directors.


 

















 


3.                                       Compensation
and Benefits.


 


(a)          Salary, Bonus and Benefits.


 


(i)             The Company shall pay Executive a base
salary in the annual amount of $235,000 payable bi-weekly or in such other
manner as is consistent with the Company’s normal payroll practices.


 


(ii)          The
Company shall (subject to the 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).


 


(iii)       The
Company shall offer to Executive a benefits package equivalent to that provided
to the Company’s other employees and senior-level executives (including,
without limitation, participation in the Company’s medical, dental, vision,
life and disability insurance programs, the Company’s 401(k) plan, the
Company’s stock purchase program, and such other plans or programs as may be
made available).  In addition, the
Company shall maintain 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.


 


(iv)      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.  Executive shall also be entitled to any paid or unpaid holidays
provided by the Company in accordance with its generally applicable personnel
policies.  Upon termination of
Executive’s services under this Agreement, Executive will


 

















 


be paid for unused and accrued
vacation time earned through the last completed day of service.


 


(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 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 or otherwise
authorized by the Company’s board of directors, 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”). 
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 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 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.


 


(c)          Notwithstanding the
foregoing provisions of this Section 4 or any other provision of this
Agreement, nothing in this Agreement shall prohibit or restrict Executive from:
(i) providing information to, testifying or otherwise assisting in any
investigation or proceeding brought by any federal regulatory or law
enforcement agency or legislative body, or any self-regulatory organization;
(ii) providing information to or assisting in an investigation by the Company’s
designated legal, compliance and/or human resources officers; or (iii)
testifying, participating or otherwise assisting in a proceeding relating to an
alleged violation of any federal, state or municipal law relating to fraud or
any rule or regulation of the Securities and Exchange Commission or any
self-regulatory organization.


 


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 (as defined below) or by the Executive for Good Reason
(as defined below):


 


(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 provable 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 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.  Executive represents and warrants to the Company
that Executive is free to enter into this Agreement and has no commitment,
arrangement or understanding to or with any party that restrains or is in
conflict with Executive’s performance of the covenants, services and duties
provided for in this Agreement. 
Executive agrees to indemnify the Company and to hold it harmless
against any and all liabilities or claims arising out of any unauthorized act
or acts by Executive that, the foregoing representation and warranty to the
contrary notwithstanding, are in violation, or constitute a breach of, any such
commitment, arrangement or understanding.


 


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.  This Agreement shall terminate upon the
death of Executive.


 

















 


(b)         Disability.  This Agreement shall terminate upon the
Executive’s disability 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.  In the event of a disagreement over the
nature of Executive’s disability or the determination of whether Executive is
disabled, Executive agrees to be examined by a licensed physician that is
mutually agreeable to Executive and the Company.


 


(c)          Expiration of the
Agreement.  This Agreement shall
terminate upon the Expiration Date or the scheduled expiration date of any
renewal or extension thereof in compliance with Section 1(b).


 


(d)         Termination by the
Company With Cause.  This Agreement
shall terminate upon the Company’s termination of Executive for Cause.


 


(e)          Voluntary Termination by
Executive.  This Agreement shall
terminate upon Executive’s voluntary resignation; provided that Executive shall
provide the Company with no less than 30 days’ written notice; provided,
further, 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.


 


(f)            Termination by the
Company Without Cause.  This Agreement
shall terminate upon the Company’s termination of Executive for any reason
other than for Cause; provided, that the Company shall provide Executive with
no less than 30 days’ written notice of any such termination.  For purposes of this Agreement, the
Company’s failure to renew the Agreement for any subsequent one-year term shall
be deemed to be a termination of Executive without Cause.


 


(g)         Termination by 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.


 


8.                                       Effect of
Termination.


 


(a)          Upon termination of this
Agreement pursuant to Sections 7(a) through (e), 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 (including, without
limitation, the plans and programs made available to Executive pursuant to
Section 3(a)(iii)), 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 pursuant to Section 7(g) or his employment with the Company is
terminated without Cause pursuant to Section 7(f), the Company shall
thereupon pay Executive the following amounts and benefits 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), and (iii) continued coverage under the Company’s benefit
plans made available to Executive in accordance with Section 3(a)(iii)
(other than the Company’s 401(k) and stock purchase plans) on the same terms as
other similarly situated employees of the Company.  If coverage under one or more of the Company’s benefit plans may
not be continued because such continuation would adversely affect the
tax-qualified status of such benefit plans, Company may pay Executive a cash
payment that is equal to the value of such continued coverage.


 


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) that are 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 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.


 

















 


10.                                 Miscellaneous.


 


(a)          Merger; Amendment.  This Agreement constitutes the entire
agreement between the parties and supercedes and replaces all prior agreements
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).  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 be selected in a manner that is mutually agreed
upon by the parties.  The arbitrator
shall not 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 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: 425-576-3650


 


If to Executive:


 


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.


 


(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.


 


SIGNATURE
PAGE FOLLOWS


 

















 


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