exv10w2



 


Exhibit 10.2




SEPARATION AND NON-COMPETITION AGREEMENT



     THIS SEPARATION AND NON-COMPETITION AGREEMENT (the “Agreement”) is made
and entered on the 19th day of September 2002, by and between Nextel
Communications, Inc. a Delaware corporation (the “Company,” a term which in
this Agreement includes its predecessors, parents, subsidiaries, divisions,
related or affiliated companies, officers, directors, stockholders, members,
employees, heirs, successors, assigns, representatives, agents and counsel,
unless the context requires otherwise), and JAMES F. MOONEY (“Executive”).
This Agreement is effective on the date hereof for purposes of Section 1, and
for all other purposes as of the Effective Date, as defined in Section 7(b) of
the Release, attached hereto as Exhibit F.


WITNESSETH:


     WHEREAS, Executive is an employee of the Company and serves the Company as
its Executive Vice President and Chief Operating Officer; and


     WHEREAS, pursuant to the Company’s Amended and Restated Incentive Equity
Plan (the “Incentive Equity Plan”), the Company has granted options to
Executive as set forth on and attached hereto as Exhibit A and each such grant
is governed and made subject to the terms and conditions of the Incentive
Equity Plan and the form of Nonqualified Stock Option Agreement; and


     WHEREAS, the Company and Executive are parties to a Confidentiality
Agreement, dated April 16, 2001 (the “Confidentiality Agreement”, attached
hereto as Exhibit B), a Deferred Shares Agreement, dated as of April 16, 2001
(the “First Deferred Shares Agreement”, attached hereto as Exhibit C), and a
Deferred Shares Agreement, dated February 13, 2002 (the “Second Deferred Shares
Agreement”, attached hereto as Exhibit D, and together with the First Deferred
Shares Agreement, the “Deferred Shares Agreements”); and


     WHEREAS, the Company and Executive are parties to a Loan Agreement, dated
as of April 27, 2001 (the “Loan Agreement”, attached hereto as Exhibit E); and


     WHEREAS, the Company and Executive agree that his employment will
terminate effective on the Separation Date (as defined in Section 1 below); and


     WHEREAS, the Company and Executive desire to make provision for the
payments and benefits that Executive will be entitled to receive from the
Company in consideration for Executive’s obligations and actions under this
Agreement and in connection with such termination; and


     WHEREAS, the Company and Executive wish to resolve certain matters, claims
and issues between them arising from or relating to Executive’s service and
employment with the Company, including termination thereof; and


     WHEREAS, the Company wants to ensure that Executive will protect
Confidential Information (as defined in the Confidentiality Agreement) and will
not use Executive’s knowledge and experience during the Non-Compete Period (as
defined below) to


 






 




compete with the Company or solicit or employ any current employee,
officer or agent of the Company (as set forth herein); and


     NOW, THEREFORE, in consideration of the premises and the promises and
agreements contained herein and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, and intending to be
legally bound, the Company and Executive agree as follows:


     1.     Termination. The Company and Executive hereby agree that effective on
September 30, 2002 (the “Separation Date”), Executive’s employment with the
Company as its Executive Vice President and Chief Operating Officer will
terminate. Effective on the date hereof, Executive resigns from all offices
and directorships of the Company and each of its subsidiaries and affiliates,
and resigns from each fiduciary position that Executive holds at the request of
the Company. Subject to Section 601 of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”) et seq. (“COBRA”), 29 U.S.C. §1161 et seq.,
and the terms of any employee benefit plan of the Company, Executive’s active
participation in employee benefit plans shall cease effective on the Separation
Date.


     2.     Compensation and Certain Benefits Matters. In consideration of the
promises of Executive in this Agreement, including without limitation Section 3
and Section 4 hereof, subject to the condition that Executive provides a
complete release (as set forth in the Release, attached hereto as Exhibit F)
from all claims against the Company, including all claims for age and other
discrimination and subject to the provisions of Section 12:


          (a)  Cash Severance Payments and Benefits. The Company shall pay Executive
in full satisfaction of his rights and any benefits he might be entitled to
under the Company’s Severance Benefits Plan (i) the sum of Five Hundred Fifty
Thousand Dollars ($550,000) payable in a lump sum on the Effective Date; and
(ii) in lieu of any annual bonus that Executive would have been eligible for
under the 2002 Bonus Plan, the sum of Seven Hundred Eight Thousand Seven
Hundred Fifty Dollars ($708,750) payable in a lump sum on the Effective Date;
provided, however, that pursuant to Sections 1.4 and 3.2 of the Loan Agreement,
such amounts shall be applied to repay outstanding principal under any Tax
Withholding Loans (as defined in Section 1.4 of the Loan Agreement) and the
amount provided in (ii) shall be further reduced as provided in Section 3.2 of
the Loan Agreement ((i) and (ii) are collectively, the “Cash Severance
Payment”).


          (b)  Stock Options. To the extent not already vested on the Separation
Date, all currently unvested stock options granted to Executive under the
Option Agreements shall terminate automatically and without further notice.
All currently vested stock options shall, in accordance with their terms,
remain outstanding and exercisable for 30 days following the Separation Date
(the “Exercise Period”) and shall terminate automatically and without further
notice following such Exercise Period.


          (c)  Deferred Shares. To the extent not already vested and non-forfeitable
on the Separation Date, all currently unvested deferred shares granted to
Executive under the Deferred Shares Agreements shall, in accordance with their
terms, be forfeited automatically and without further notice.


 






 


          (d)  Loan Agreement. Effective on the Separation Date, the Company shall
immediately forgive the entire remaining Two Million Dollars ($2,000,000)
balance of the Original Loan Amount (as defined in Section 1.1 of the Loan
Agreement) pursuant to the terms of Section 2.2 of the Loan Agreement. Under
the terms of the Loan Agreement, Executive agrees to pay any tax imposed on
Executive under federal, state, or local or other laws in connection with the
forgiveness of the Original Loan Amount and any Forgiven Amount(s) or Foregone
Interest Compensation (as defined in Section 3.1(a) of the Loan Agreement). To
the extent that the Company is required to withhold federal, state, local or
other taxes in connection with the forgiveness of such Original Loan Amount,
and the amounts available to the Company for such withholding are insufficient,
it shall be a condition to the receipt of the Cash Severance Payment and the
Non-Compete Payment to Executive that Executive make arrangements satisfactory
to the Company for payment of the balance of such taxes required to be
withheld.


          (e)  Reimbursement of Business and Relocation Expenses. The Company shall
reimburse Executive for all reasonable (i) business expenses incurred prior to
the Separation Date and (ii) expenses incurred in relocating from Virginia,
which shall include moving and travel expenses in an amount not to exceed Ten
Thousand Dollars ($10,000) and the final month’s rent at Executive’s place of
residence in Virginia, all in accordance with the Company’s policies.


     3.     Non-Competition; Non-Solicitation and Certain Actions. In
consideration of the promises of Executive in this Section 3, the Company shall
pay Executive the sum of One Million Two Hundred Eighty-Six Thousand Two
Hundred Fifty Dollars ($1,286,250) (the “Non-Compete Payment”) of which (i)
one-half of the Non-Compete Payment (Six Hundred Forty-Three Thousand One
Hundred Twenty-Five Dollars ($643,125)) shall be paid on the Effective Date;
(ii) one-quarter of the Non-Compete Payment (Three Hundred Twenty-One Thousand
Five Hundred Sixty-Two Dollars and Fifty Cents ($321,562.50)) shall be paid on
March 31, 2003; and (iii) the remaining one-quarter of the Non-Compete Payment
(Three Hundred Twenty-One Thousand Five Hundred Sixty-Two Dollars and Fifty
Cents ($321,562.50)) shall be paid on March 31, 2004.


          (a)  Executive agrees that during his employment with the Company he was
privy to and assisted in creating trade secrets and confidential information
regarding the business of the Company, which provides the Company with a
competitive advantage. Executive agrees that due to his senior executive
status at the Company and his valuable and unique talents, he had access to and
the right to control a broad range of Confidential Information that would
render it inevitable that his involvement in a Competing Business (as defined
in Section 3(c) below) would require that he use or disclose such Confidential
Information in the performance of his duties and would provide an unfair
advantage to the Competing Business.


          (b)  Executive agrees that for a period commencing on the Separation Date
through the second anniversary of the Separation Date (the “Non-Compete
Period”), within the United States, he shall not directly or indirectly, do or
suffer any of the following:



		
	 	     (i) Own, manage, control or participate in the ownership,
management, or control of, or be employed or engaged by or otherwise
affiliated or



 






 





		
	 	associated as a consultant, independent contractor, director or
otherwise with, any other corporation, partnership, proprietorship, firm,
association, or other business entity (collectively, an “Enterprise”), or
otherwise engage in any Competing Business (as described in Section
3(c)), which is in competition with the Company’s business; provided,
however, that the ownership of not more than one percent (1%) of any
class of publicly traded securities of any Enterprise shall not be deemed
a violation of this Agreement.




		
	 	     (ii) employ, assist in employing, or otherwise associate in business
with any person who presently or at the Separation Date is an employee,
officer or agent of the Company, or any of its affiliated, related or
subsidiary entities; or
	 
	 	     (iii) directly or indirectly induce any person who is an employee,
officer or agent of the Company, or any of its affiliated, related or
subsidiary entities to terminate such relationship.



          (c)  For purposes of this Agreement, Competing Business shall mean any
Enterprise in the United States that is (i) in the business of providing
wireless local area network (e.g., “802.11” or “Wi-Fi” wireless services) or
(ii) authorized by the Federal Communications Commission (“FCC”) to provide
“commercial mobile radio service” as that term is defined by the FCC (47 C.F.R.
§ 20.3). Competing Business shall not include information technology companies
whose principal business is data processing products and services.


          (d)  In the event Executive violates any provision of this Section 3 to the
extent that there is a specific time period during which Executive is
prohibited from taking certain actions or from engaging in certain activities,
as set forth in such provision, then, in such event, such violation will toll
the running of such time period from the date of such violation until such
violation ceases.


          (e)  Executive has carefully considered the nature and extent of the
restrictions upon him and the rights and remedies conferred upon the Company
under this Section 3 and this Agreement, and hereby acknowledges and agrees
that the same are reasonably required to protect the legitimate interests of
the Company and do not confer a benefit upon the Company disproportionate to
the detriment to Executive.


     4.     Confidential Information; Statements to Third Parties.


          (a)  Executive acknowledges that he remains subject to the Confidentiality
Agreement. Executive agrees that notwithstanding anything in the
Confidentiality Agreement to the contrary, Section 1.2 (“Nondisclosure”) of the
Confidentiality Agreement shall be in effect on a permanent basis. Executive
further acknowledges and agrees that the Confidential Information of the
Company gained by Executive during Executive’s association with the Company was
or will be developed by and/or for the Company through substantial expenditure
of time, effort and money and constitutes valuable and unique property of the
Company.


          (b)  Executive agrees that commencing on the Separation Date he will
continue to keep in strict confidence, and will not, directly or indirectly, at
any time, disclose, furnish, disseminate, make available, use or suffer to be
used in any manner any Confidential


 






 




Information of the Company without limitation as to when or how Executive
may have acquired such Confidential Information. Executive specifically
acknowledges that Confidential Information includes any and all technical and
research data, confidential business data and other information, whether
reduced to writing (or in a form from which information can be obtained,
translated, or derived into reasonably usable form), or maintained in the mind
or memory of Executive and whether compiled or created by the Company, which
derives independent economic value from not being readily known to or
ascertainable by proper means by others who can obtain economic value from the
disclosure or use of such information, that reasonable efforts have been put
forth by the Company to maintain the secrecy of Confidential Information, that
such Confidential Information is and will remain the sole property of the
Company, and that any retention or use by Executive of Confidential Information
after the termination of Executive’s services for the Company will constitute a
misappropriation of the Company’s Confidential Information.


          (c)  Executive expressly covenants and agrees that he shall not at any
time, whether prior to or after the Separation Date, directly or indirectly, on
any basis for any reason, use or permit third parties within his control or
authority or under his supervision the use of any trade secrets, Confidential
Information or proprietary information of, or relating to, the Company, or any
affiliate of the Company, including, without limitation, data and other
information relating to any of the Company’s processes, apparatus, products,
software, packages, programs, trends in research, product development
techniques or plans, research and development programs and plans or any works
and all secrets, customer lists, lists of employees, sales representatives and
their territories, mailing lists, details of consultant contracts, pricing
policies, operational methods, marketing plans or strategies, business
acquisition plans, new personnel acquisition plans, designs and design projects
and other confidential business affairs concerning the Company, in connection
with any activity or business, whether for his own account or otherwise, and
will not divulge such trade secrets, Confidential Information or proprietary
information to any person, firm, corporation or other entity whatsoever.


          (d)  Executive shall not be prohibited from divulging information deemed to
be trade secret or confidential or proprietary information of the Company if:
(i) the specific item of information becomes generally available to the public
without violation of this Agreement, the Confidentiality Agreement or any other
confidentiality agreement to which Executive is a party, or (ii) if such
disclosure is compelled by law, in which event Executive agrees to give the
Company prior written notice of any disclosure to be made pursuant to this
subsection (ii), and Executive, at the Company’s expense, shall cooperate fully
with the Company to obtain protective orders, confidential treatment or other
such protective action as may be available to preserve the confidentiality of
the information required to be disclosed.


          (e)  Executive further agrees that Executive will return (to the extent
Executive has not already returned), on or before the Separation Date, in good
condition, all tangible things and other property of the Company, including,
without limitation, (i) confidential memoranda, notes, notebooks, drawings,
lists (including, without limitation, mailing and customer lists), records and
other confidential documents, property, documents and/or all other materials
(including copies, reproductions, summaries and/or analyses) which constitute,
refer or relate to Confidential Information of the Company, (ii) keys to the
Company property, (iii) files, (iv) computer programs and files, and (v)
blueprints or other drawings.


 






 


          (f)  Executive further acknowledges and agrees that Executive’s obligation
of confidentiality will survive, regardless of any other breach of this
Agreement or any other agreement, by any party hereto, until and unless such
Confidential Information of the Company has become, through no fault of
Executive, generally known to the public or Executive is required by law (after
providing the Company with notice and opportunity to contest such requirement)
to make disclosure. Executive’s obligations under this Section 4 are in
addition to, and not in limitation or preemption of, all other obligations of
confidentiality which Executive may have to the Company under the
Confidentiality Agreement, the Company’s policies, general legal or equitable
principles or statutes and which will remain in full force and effect following
the Separation Date.


          (g)  (1) Executive shall not, directly or indirectly, make or cause to be
made any statements to any third parties criticizing or disparaging the Company
or commenting on the character or business reputation of the Company.
Executive further hereby agrees that, without the prior written consent of the
Board of Directors of the Company, unless otherwise required by law, Executive
shall not (x) publicly comment in a manner adverse to the Company concerning
the status, plans or prospects of the business of the Company or (y) publicly
comment in a manner adverse to the Company concerning the status, plans or
prospects of any existing, threatened or potential claims or litigation
involving the Company; and (2) the Company shall comply with its policies
regarding public statements with respect to Executive and shall use its best
efforts to cause its directors, officers and employees to not directly make or
cause to be made any statements to any third parties that disparage Executive.


     5.     Disclosure. Executive, for a period commencing on the date of this
Agreement through the end of the Non-Compete Period, agrees to communicate the
contents of Executive’s obligations under Sections 3, 4, 5 and 7 of this
Agreement to any business entity which Executive intends to be employed by,
associated in business with, or represent.


     6.     Breach.


          (a)  If Executive is in breach of this Agreement, then the Company may, at
its sole option, bring an action for any expenses, fees and damages incurred as
a result of the breach, with the remainder of this Agreement, and all promises
and covenants herein, remaining in full force and effect.


          (b)  Executive acknowledges and agrees that the remedy at law available to
the Company for breach by Executive of any of Executive’s obligations under
Sections 3 and 4 of this Agreement would be inadequate and that damages flowing
from such a breach would not readily be susceptible to being measured in
monetary terms. Accordingly, Executive acknowledges, consents and agrees that,
in addition to any other rights or remedies which the Company may have at law,
in equity or under this Agreement, upon adequate proof of Executive’s violation
of any provision of Section 3 or 4 of this Agreement, the Company will be
entitled to seek immediate injunctive relief and may seek to obtain a temporary
order restraining any threatened or further breach, without the necessity of
proof of actual damage.


          (c)  Without limiting the applicability of Section 6(b) or in any way
affecting the right of the Company to seek equitable remedies thereunder, in
the event that


 






 




Executive breaches any of the provisions of Sections 3 or engages in any
activity that would constitute a breach save for Executive’s action being in a
state where Section 3 is not enforceable as a matter of law, then the Company’s
obligation to pay any remaining Non-Compete Payment that has not already been
paid to Executive pursuant to Section 3 shall be terminated and within ten (10)
days of notice of such termination of payment, Executive shall return all
Non-Compete Payments.


          (d)  Any decision by the Company not to exercise any of its rights under
this Section 6 shall not be construed as a waiver of any rights the Company may
have under this Agreement, any other agreement or any statute with respect to
future breaches.


     7.     Continued Availability and Cooperation.


          (a)  Following the Separation Date and in consideration of the payments
made under Section 3 herein, Executive shall cooperate fully with the Company
and with the Company’s counsel in connection with any present and future actual
or threatened litigation or administrative proceeding involving the Company
that relates to events, occurrences or conduct occurring (or claimed to have
occurred) during the period of Executive’s employment by the Company. This
cooperation by Executive will include, but not be limited to:



		
	 	     (i) making himself reasonably available for interviews and
discussions with the Company’s counsel as well as for depositions and
trial testimony;
	 
	 	     (ii) if depositions or trial testimony are to occur, making himself
reasonably available and cooperating in the preparation therefor as and
to the extent that the Company or the Company’s counsel reasonably
requests;
	 
	 	     (iii) refraining from impeding in any way the Company’s prosecution
or defense of such litigation or administrative proceeding; and
	 
	 	     (iv) cooperating fully in the development and presentation of the
Company’s prosecution or defense of such litigation or administrative
proceeding.



          (b)  Executive will be reimbursed by the Company for reasonable travel,
lodging, telephone and similar expenses, as well as reasonable attorneys’ fees
(if independent legal counsel is necessary), incurred in connection with any
cooperation, consultation and advice rendered under this Agreement after the
Separation Date. Executive shall not unreasonably withhold Executive’s
availability for such cooperation, consultation and advice.


 






 


     8.     Full Settlement. The Company’s obligation to make payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which the Company may have against Executive or others.
In no event shall Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to Executive under any
of the provisions of this Agreement and such amounts shall not be reduced
whether or not Executive obtains other employment.


     9.     Successors and Binding Agreement.


          (a)  This Agreement will be binding upon and inure to the benefit of the
Company and any successor of or to the Company, including, without limitation,
any persons acquiring directly or indirectly all or substantially all of the
business and/or assets of the Company whether by purchase, merger,
consolidation, reorganization or otherwise (and such successor will thereafter
be deemed included in the definition of “the Company” for purposes of this
Agreement), but will not otherwise be assignable or delegable by the Company.


          (b)  This Agreement will inure to the benefit of and be enforceable by
Executive’s personal or legal representatives, executors, administrators,
successors, heirs, distributees and/or legatees. The death or disability of
Executive following the execution and delivery of this Agreement will not
affect or revoke this Agreement or excuse any of the obligations of the parties
hereto.


          (c)  This Agreement is personal in nature and none of the parties hereto
shall, without the consent of the other parties, assign, transfer or delegate
this Agreement or any rights or obligations hereunder except as expressly
provided in this Section 9.


          (d)  This Agreement is intended to be for the exclusive benefit of the
parties hereto, and except as provided in Subsections (a) and (b) of this
Section 9, no third party will have any rights hereunder.


          (e)  The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation, operation of law or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform this Agreement.


     10.     Non-Disclosure. Except to the extent that this Agreement or the terms
hereof become publicly known or available because of legally mandated
disclosure and filing requirements of the Securities and Exchange Commission,
or because of any other legal requirement that this Agreement or the terms
hereof be disclosed:


          (a)  Executive will maintain the confidentiality of all provisions of this
Agreement and the circumstances giving rise hereto and will not disclose to any
person not a party hereto (other than (i) Executive’s spouse, (ii) Executive’s
attorney, financial advisor and/or tax advisor to the extent necessary for such
advisor to render appropriate legal, financial and tax advice, and (iii)
persons or entities referred to in Section 5 of this Agreement, but only to the
extent required thereby or the circumstances giving rise hereto; provided,
however, each such


 






 




person or entities shall be bound to the terms of Sections 3 and 4 of this
Agreement and any breach by such persons or entities will have the same effect
under Section 6 of this Agreement as a breach by Executive); and


          (b)  The Company will maintain the confidentiality of all provisions of
this Agreement and the circumstances giving rise hereto and will not disclose
to any person not a party hereto (other than the Company’s directors and
officers and other employees with the Company whose duties require them to be
familiar with all or a portion of this Agreement, outside legal, accounting,
financial and/or tax counselors and advisors to the extent necessary for such
counselors and advisors to render appropriate legal, accounting, financial and
tax advice); provided, however, each such person or entities shall be bound to
the terms of this Section 10(b)).


     11.     Notices. For all purposes of this Agreement, all communications
provided for herein will be in writing and will be deemed to have been duly
given when delivered, addressed to the Company (to the attention of the Senior
Vice President and General Counsel) at its principal executive offices at 2001
Edmund Halley Drive, Reston, Virginia 20191 and to Executive at Executive’s
principal residence at 552 Anderson Hill Road, Purchase New York 10577 with a
copy to Bleakley Platt & Schmidt LLP, One North Lexington Avenue, White Plains,
New York 10601, Attention: Richard N. Pitassy, Esq. or to such other address as
any party may have furnished to the other in writing and in accordance
herewith. Notices of change of address will be effective only upon receipt.


     12.     Taxes; Payments.


          (a)  Executive shall be responsible for Executive’s share of any and all
federal, state and/or local taxes applicable to the payments made, and benefits
provided or made available, to Executive pursuant to this Agreement.


          (b)  The payments to Executive pursuant to Section 2 and Section 3 of this
Agreement will be made by check or direct deposit to an account designated by
Executive, and will be reduced by any applicable federal, state and local tax
or other required withholding on such payments or pursuant to the Loan
Agreement.


     13.     Modification, Amendment and Waiver. No provision of this Agreement
may be amended, modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing signed by Executive and the Company. No
waiver by either party hereto at any time of any breach by the other party
hereto or compliance with any condition or provision of this Agreement to be
performed by such other party will be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.


     14.     Entire Agreement; Continuing Indemnification and Other Rights and
Representations


          (a)  Except as expressly provided in this Agreement, this Agreement will
constitute the entire agreement among the parties hereto with respect to the
subject matters covered by this Agreement and will supersede all prior verbal
or written agreements, covenants,


 






 




communications, understandings, commitments, policies, representations or
warranties, whether oral or written, by any party hereto or any of its
representatives pertaining to such subject matter.


          (b)  Executive represents that he does not know of any matters not
previously presented to the Board of Directors of the Company or to the
Company’s compliance officers that would require disclosure pursuant to the
Company’s Code of Corporate Conduct.


          (c)  The Company represents that as of the date hereof, there is nothing
that has come to the attention of the Board of Directors of the Company or the
senior executive officers of the Company of any acts or conduct of Executive
that would rise to the level of a claim that the Company would assert against
Executive.


          (d)  This Agreement will not affect any indemnification or other rights
under any indemnification agreement between Executive and the Company or the
Company’s by-laws. The Company shall continue Executive’s coverage under the
directors’ and officers’ liability coverage maintained by Company, as in effect
from time to time, to the same extent as other current and former senior
executive officers of the Company.


          (e)  The parties hereto acknowledge and agree that each party has reviewed
and negotiated the terms and provisions of this Agreement and has had the
opportunity to contribute to its revision. Accordingly, the rule of
construction to the effect that ambiguities are resolved against the drafting
party will not be employed in the interpretation of this Agreement. Rather,
the terms of this Agreement will be construed fairly as to both parties hereto
and not in favor or against either party.


 






 


     15.     Governing Law; Jurisdiction; Venue. The validity, interpretation,
construction and performance of this Agreement will be governed by and
construed in accordance with the substantive laws of the State of New York,
without giving effect to the principles of conflict of laws of such State. The
parties agree that the state and federal courts located in the Commonwealth of
Virginia will have exclusive jurisdiction in any action, suit or proceeding
against Executive based on or arising out of this Agreement and the parties
hereby: (a) submit to the personal jurisdiction of such courts; (b) consent to
service of process in connection with any action, suit or proceeding against
Executive; and (c) waive any other requirement (whether imposed by statute,
rule of court or otherwise) with respect to personal jurisdiction, venue or
service of process.


     16.     Severability. The invalidity or unenforceability of any provision of
this Agreement will not affect the validity or enforceability of any other
provision of this Agreement which will nevertheless remain in full force and
effect.


     17.     Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one and the same Agreement. The exchange of executed
counterparts by facsimile shall be sufficient to bind the parties. Each party
shall deliver to the other executed originals by overnight mail service.


     18.     Captions and Section Headings. Captions and section headings used
herein are for convenience and are not part of this Agreement and will not be
used in construing it.


     19.     Authorization by the Company. The Company represents and warrants to
Executive that the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized and that all corporate action required to be taken by the
Company for the execution, delivery and performance of this Agreement has been
duly and effectively taken.


     20.     Further Assurances. Each party hereto shall execute such additional
documents, and do such additional things, as may reasonably be requested by the
other party to effectuate the purposes and provisions of this Agreement.


 






 


     IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
on the date set forth above.



	 	 	 	 	 	 	 
	 	 	 	 	Nextel Communications, Inc.
	 	 	 	 	 	 	 
	Witness:	 	 /s/ Linda Hoisington	 	By:	 	/s/ Leonard J. Kennedy
	 	 	
	 	 	 	

	 	 	 	 	 	 	Leonard J. Kennedy

Senior Vice President and General Counsel
	 	 	 	 	 	 
	 	 	 	 	 	 
	Witness:	 	 Richard N. Pitassy	 	 	 	/s/ James F. Mooney
	 	 	
	 	 	 	

	 	 	 	 	 	 	James F. Mooney