exv10w7w4



 


Exhibit 10.7.4



RESIGNATION AND NON-COMPETITION AGREEMENT



     THIS RESIGNATION AND NON-COMPETITION AGREEMENT (the “Agreement”) is made
and entered as of the 11th day of November 2003, by and between Nextel
Communications, Inc. a Delaware corporation (the “Company,”), and Morgan E.
O’Brien (the “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 C.


     WITNESSETH:


     WHEREAS, the Executive is an employee of the Company and serves the
Company as the Vice Chairman of the Board of Directors and a member of the
Board of Directors of the Company (the “Board”); and


     WHEREAS, pursuant to the Nextel Communications, Inc. Amended and Restated
Incentive Equity Plan (the “Incentive Equity Plan”), the Company has granted
options to the 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 each Nonqualified Stock Option Agreement evidencing
each such grant, as such terms and conditions are amended by Section 2(b)
herein; and


     WHEREAS, the Company and the Executive are parties to a Nextel
Non-Disclosure and Assignment of Inventions Agreement, dated August 27, 2003
(the “Confidentiality Agreement”, attached hereto as Exhibit B); and


     WHEREAS, as of the date of this Agreement, the Executive is a resident of
the State of Maryland;


     WHEREAS, the Company and the Executive agree that he will resign from
employment effective on the Resignation Date (as defined in Section 1 below);
and


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


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


     WHEREAS, the Company wants to ensure that the Executive will protect
Confidential Information (as defined in the Confidentiality Agreement) and will
not use the 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 during the Non-Solicitation Period
(as defined below), 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 the Executive agree as follows:


     1.    Resignation. Effective on November 11, 2003 (the “Resignation Date”),
the Executive resigned his employment with the Company and will resign from all
other offices and directorships of each of the Company’s subsidiaries and
affiliates (other than to continue to serve as a director of Extend America
Investment Corp. during his Director Term (as defined below)), and resign from
any fiduciary position that the Executive holds at the request of the Company.
From the Resignation Date, the Executive will continue to serve as Vice
Chairman and a director of the Company during his term as director until the
Company’s May 2006 annual meeting of stockholders, or his earlier death or
resignation from the Board (the “Director Term”).


     2.    Compensation and Certain Benefits Matters. In consideration of the
promises of the Executive in this Agreement, including without limitation
Section 3, Section 4 and Section 5 hereof, and in consideration of the
Executive’s execution and delivery of the Release, attached hereto as Exhibit
C, with all periods for revocation having expired:


           (a)  Cash Payments and Health Benefits. The Executive will:



		
	 	     (i)      receive from the Company his base salary in effect as of the
Resignation Date of five hundred twenty thousand dollars ($520,000) per
annum (the “Base Salary”) for a two (2) year period commencing on the
Effective Date and ending on November 17, 2005 (the
“Severance Period”),
(a total of one million forty thousand dollars ($1,040,000.00)), which
will be payable at the times and in the manner consistent with the
Company’s normal payroll schedule;




		
	 	     (ii)     (i) during the Severance Period, continue participation in the
Company’s health care plans, on the same basis as other senior executives
of the Company; provided, however, that benefits otherwise receivable by
the Executive pursuant to this Section 2(a)(ii) will be applied against
the maximum period of continuation coverage provided under Section 4980B
of the Internal Revenue Code of 1986, as amended (the “Code”);




		
	 	     (iii)    (A) receive from the Company full payment of any bonus award
for the bonus year ending December 31, 2003 under the Company’s annual
bonus plan (the “Bonus Plan”), which will be based on his minimum annual
Target Bonus (as such term is defined in the Bonus Plan) opportunity of
100% of his Base Salary based on actual team and Company performance and;
(B) receive from the Company full payment of the target annual bonus
award of five hundred twenty thousand dollars ($520,000) for each of the
next two (2) fiscal years (2004 and 2005), which will be payable on or
before February 28, 2005 and 2006 respectively; and




		
	 	     (iv)    receive from the Company full payment of any remaining target
award opportunity under the Nextel Long-Term Incentive Plan effective
January 1, 2002 (the “LTIP”) to which he would otherwise be entitled for
the LTIP performance



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	 	period that includes his Resignation Date (but not for any later
performance periods) at the greater of target or actual performance for
such LTIP performance period in accordance with the then existing terms
of the LTIP, which will not be payable until the Compensation Committee
has determined that any incentive targets have been achieved and the
subsequent designated payout date has arrived.



          (b)  Stock Options. Any provision in the Incentive Equity Plan and the
Nonqualified Stock Option Agreements to the contrary notwithstanding:



		
	 	     (i)      (A) during the Director Term, the Executive will continue to
receive service credit for vesting in the currently unvested stock
options granted to the Executive by the Company and described on Exhibit
A-1 attached hereto and, except as provided in (B) below, any such vested
options will remain outstanding and exercisable for the duration of the
Director Term and for 30 days thereafter, (B) if the Director Term ends
by reason of the Executive’s death, all stock options will vest
immediately (to the extent not previously vested) and all such stock
options described on Exhibit A-1 will remain outstanding and exercisable
until the later of one year following the Executive’s death or the end of
the Director Term, and (C) stock options vested and exercisable under (A)
or (B) above will terminate automatically and without further notice upon
the expiration of such respective exercise periods;




		
	 	     (ii)      (A) except as provided in (B) below, all vested options
described on Exhibit A-2 attached hereto will remain outstanding and
exercisable for the duration of Director Term and for 30 days thereafter,
(B) if the Director Term ends by reason of the Executive’s death, all
stock options described on Exhibit A-2 will remain outstanding and
exercisable until the later of one year following the Executive’s death
or the end of the Director Term, and (C) stock options exercisable under
(A) or (B) above will terminate automatically and without further notice
upon the expiration of such respective exercise periods; and




		
	 	     (iii)      all other vested options not identified on Exhibit A-2 will
remain, in accordance with their terms, outstanding and exercisable for
30 days following the Resignation Date and will terminate automatically
and without further notice in accordance with their terms.



            (c)  Office Furniture. The Company hereby transfers ownership and title of
the office furniture moved from the Nextel offices to Executive’s offices as of
the date of this Agreement.


            (d)  Wireless Phone. During his Director Term, the Company will provide
the Executive with the use of a wireless phone on the same basis as other
non-employee directors of the Board.


            (e) Reimbursement of Business Expenses. The Company will reimburse the
Executive for all reasonable business expenses properly incurred on or prior to
the Resignation Date and submitted in accordance with the Company’s policies.


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            (f)  Excess Parachute Payment. In the event the Company treats any portion
of the Executive’s payments or benefits hereunder as an “excess parachute
payment” within the meaning of Section 280G of the Code and such payments or
benefits would be subject to the excise tax imposed by Section 4999 of the Code
(or any successor thereto), or any interest or penalties with respect to such
excise tax (such excise tax, together with any such interest and penalties, are
collectively referred as the “Excise Tax”), the Executive will be entitled to
receive an additional payment or payments. Such additional payment or payments
will be an amount such that, after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including any Excise Tax imposed upon such payment or payments equal to the
Excise Tax, the Executive retains a portion of the payment or payments equal to
the Excise Tax imposed on such payment or payments.


            (g)  The receipt of payments and benefits under this Section 2 will have no
effect on the Executive’s right, if any, to any benefits under other employee
benefit plan of the Company in which the Executive was an active participant on
or before the Resignation Date, other than The Nextel Severance Benefits Plan
(the “Severance Plan”), the Bonus Plan, the LTIP and the Incentive Equity Plan
and related Nonqualified Stock Option Agreements.


            (h)  In the event a “Change of Control” (as such term is defined in the
Incentive Equity Plan) occurs, then (i) all of the cash payments payable to the
Executive under Section 2(a)(i), (iii) and (iv) shall, at the election of the
Executive, be paid to the Executive in a lump sum as soon as practicable
following the Change of Control, and (ii) such of the Executive’s outstanding
but unvested options described on Exhibit A-1 that would vest during the
Director Term if the Director Term ended on the Company’s May 2006 annual
meeting of stockholders shall vest immediately in accordance with Section
4(g)(ii)(A) of the Incentive Equity Plan.


     3.          Non-Competition. In consideration of the compensation and benefits
payable to the Executive under Section 2, the Executive agrees to the promises,
terms and conditions set forth in this Section 3.


            (a)  The Executive covenants and agrees that for the period commencing on
the Resignation Date and ending on the later of the termination of the Director
Term and November 17, 2005 (the “Non-Compete Period”), he shall not directly or
indirectly, individually or on behalf of any other person or entity do or
suffer any of the following, engage or be interested in (whether as owner,
stockholder, investor, partner, lender, consultant, employee, agent, director
or otherwise):



		
	 	     (i)          any business, activity or enterprise which offers mobile,
wireless telecommunications or services (including voice and data) in any
state or United States Territory in which any division or operation of
the Company, any of its subsidiaries or any affiliate of the Company or
its subsidiaries (collectively, the “Company Group”), or any other
company in which the Company Group owns an interest of 10% or more (the
“Company Affiliated Group”) is actively planning to or is providing
wireless telecommunications services (such geographic area, the
“Territory”);



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	 	      (ii)          any business, activity or enterprise which offers or is
planning to offer local area network services (e.g.,
“802.11” or
“Wi-Fi”
wireless services) or engage in any other activity 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),
“multichannel multipoint distribution service” or “multipoint
distribution service” as those terms are defined by the FCC (47 C.F.R. §
21.2), “instructional television fixed station” service as that term is
defined by the FCC (47 C.F.R. § 74.901), satellite devices, “private land
mobile radio services,” which include public safety radio channels, as
defined by the FCC (47 C.F.R. § 90.15), “industrial/business radio”
channels as defined by the FCC (47 C.F.R. § 90.31) and “specialized
mobile radio” systems as defined by the FCC (47 C.F.R. § 90.7) in the
Territory; and




		
	 	     (iii)          any business, activity or enterprise which is then competing
with or planning to compete with any business, product or service
conducted or offered by any member of the Company Group or the Company
Affiliated Group in any part of the Territory;



provided, however, that the Executive’s ownership of less than one percent (1%)
of any class of stock in a publicly traded corporation shall not be a breach of
this Section 3.


           (b)  the Executive acknowledges that during his employment with the Company
and his tenure as a director he was and will continue to be privy to trade
secrets and confidential information regarding the business of the Company
Group and Company Affiliated Group, which provides the Company Group and
Company Affiliated Group with a competitive advantage. Due to his unique and
special contributions to the Company Group in his positions as specified in
Section 1, he has been privy to, has assisted in creating and has been
ultimately responsible for every type of Confidential Information (as defined
in Section 5(b) below) generated by the Company Group and Company Affiliated
Group, so that his employment in any capacity for a competing business will
create an unreasonable and real risk of disclosure, inevitable or otherwise, of
Confidential Information; and


           (c)  the Executive further acknowledges that due to his valuable and unique
talents, skills and experience, the restrictions contained herein are
reasonable and will not deprive him of his ability to obtain commensurate
employment or work in a non-competing business activity or enterprise, and will
not impose an undue hardship on him; and


           (d)  the Executive further acknowledges that due to his senior executive
status at the Company and his valuable and unique talents, skills and
experience, 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 set forth in Section 3(a) above) would require that
he use or disclose such Confidential Information in the performance of his
duties and would provide an unfair advantage to such competing business.


           (e) The 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


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required to protect the legitimate interests of the Company and do not
confer a benefit upon the Company disproportionate to the detriment to the
Executive, and that the new consideration received by the Executive under this
Agreement is adequate. The Executive acknowledges and agrees that the nature
of Company Group’s business is such that a nationwide restraint is reasonable
and necessary to the protection of the Company’s goodwill and confidential
information.


     4.     Non-Solicitation. In consideration of the compensation and benefits
payable to the Executive under Section 2, the Executive agrees to the promises,
terms and conditions set forth in this Section 4.


            (a)  The Executive covenants and agrees that for the period commencing on
the Resignation Date and ending on the later of the termination of the Director
Term and November 17, 2005 (the “Non-Solicitation Period”), he will not,
directly or indirectly, individually or on behalf of any other person or entity
do or suffer any of the following:



		
	 	     (i)          hire or employ, assist in hiring or employing, or otherwise
associate in business or assist in planning of any business with any
person who presently or at the Resignation Date is or has been in the
immediately preceding six months an employee, officer, representative or
agent of any member of the Company Group or solicit, aid, induce or
attempt to solicit, aid, induce or persuade, directly or indirectly, such
person to leave his or her employment with any member of the Company
Group to accept employment with any other person or entity; or




		
	 	     (ii)          directly or indirectly induce any person who is an employee,
officer or agent of the Company Group to terminate such relationship;



provided, however, that the provisions of this Section 4(a) shall not apply to
conduct of the Executive with respect to his assistant, Gary Smith.


           (b)  For purposes of this Section 4, the term “solicit or induce” includes,
but is not limited to, (i) initiating communications with an employee of the
Company Group relating to possible employment, (ii) offering bonuses or
additional compensation to encourage an employee of the Company Group to
terminate his or her employment, and (iii) referring employees of the Company
Group to personnel, representatives or agents employed by competitors,
suppliers or customers of the Company Group.


     5.    Confidential Information; Statements to Third Parties.


           (a) The Executive acknowledges that he remains subject to the
Confidentiality Agreement. The Executive agrees that notwithstanding anything
in the Confidentiality Agreement to the contrary, Section 1(a)
(“Nondisclosure”) of the Confidentiality Agreement shall be in effect on a
permanent basis. The Executive further acknowledges and agrees that the
Confidential Information of the Company Group and Company Affiliated Group
gained by the Executive during the Executive’s association with the Company
Group and Company Affiliated Group was or will be developed by and/or for the
Company Group and Company Affiliated Group through substantial expenditure of
time, effort and money and constitutes valuable and unique property of the
Company Group and Company Affiliated Group.


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           (b)  The Executive agrees that 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 Group and Company Affiliated Group
without limitation as to when or how the Executive may have acquired such
Confidential Information. The Executive specifically acknowledges that
Confidential Information includes any and all technical and research data,
confidential business data and other information (including any and all
Proprietary Information (as defined in the Confidentiality Agreement)), 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 the Executive and whether compiled or created by the Company Group
and Company Affiliated Group, 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 Group and Company
Affiliated Group to maintain the secrecy of Confidential Information, that such
Confidential Information is and will remain the sole property of the Company
Group and Company Affiliated Group, and that any use, or tangible or electronic
retention by the Executive of Confidential Information after the termination of
the Executive’s services for the Company will constitute a misappropriation of
those Companies’ Confidential Information.


           (c)  The Executive expressly covenants and agrees that he shall not at any
time, whether prior to or after the Resignation 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 Group
and Company Affiliated Group, including, without limitation, data and other
information relating to any of their 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 Group and Company
Affiliated Group, 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) The Executive shall not be prohibited from divulging information
deemed to be trade secret or confidential or proprietary information of the
Company Group and Company Affiliated Group if: (i) the specific item of
information becomes generally available to the public without violation of this
Agreement, the Confidentiality Agreement or any other duty of confidentiality
by either the Executive or any other person causing the public disclosure of
the Confidential Information, (ii) if such disclosure is compelled by law, in
which event the Executive agrees to give the Company Group and Company
Affiliated Group prior written notice of any disclosure to be made pursuant to
this subsection (ii), and the Executive, at the Company’s expense, shall
cooperate fully with the Company Group and Company Affiliated Group 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, or (iii) to enforce any rights of the Executive hereunder.


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           (e)  The Executive further agrees that the Executive will return (to the
extent the Executive has not already returned on or before the Resignation
Date), in good condition, all tangible things and other property of the Company
Group and Company Affiliated Group, 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 Group and
Company Affiliated Group property, (iii) files, (iv) computer programs and
files, and (v) blueprints or other drawings. The Executive further agrees that
he will purge any electronic copies of any property belonging to the Company
Group and Company Affiliated Group which has become intermingled with or stored
with any personally owned or controlled devices or files, and that by executing
this Agreement he is affirming that he has purged such files, has not caused
the circulation of such files to third parties, and retains no electronic or
hard copies of such files other than with respect to any such property held by
the Executive in his capacity as a director.


           (f)  The Executive further acknowledges and agrees that the 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 Group and Company Affiliated Group
may be made publicly available in accordance with Section 5(d). The
Executive’s obligations under this Section 5 are in addition to, and not in
limitation or preemption of, all other obligations of confidentiality which the
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 Resignation Date.


           (g)  The Executive will not, directly or indirectly, make or cause to be
made any statements to any third parties intentionally criticizing or
disparaging the Company Group and Company Affiliated Group or commenting on the
character or business reputation of the Company Group and Company Affiliated
Group in a manner adverse to the Company Group and Company Affiliated Group.
The Executive further hereby agrees that, without the prior written consent of
the Board, unless otherwise required by law, the Executive will not (x)
publicly comment in a manner intentionally adverse to the Company Group and
Company Affiliated Group concerning the status, plans or prospects of the
business of the Company Group and Company Affiliated Group or (y) publicly
comment in a manner intentionally adverse to the Company Group and Company
Affiliated Group concerning the status, plans or prospects of any existing,
threatened or potential claims or litigation involving the Company Group and
Company Affiliated Group; provided, however, that nothing herein shall be
interpreted to preclude honest and good faith reporting by the Executive to
appropriate Company Group and Company Affiliated Group representatives or as
required by law or compulsory process.


           (h)  The Company will comply with its policies regarding public statements
with respect to the Executive.


           (i) The Executive’s obligations hereunder are subject to and qualified by
his fiduciary obligations as a director during the Director Term. Except as
otherwise prohibited herein, nothing shall prevent the Executive from writing
about or giving speeches on matters not


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directly related to the business or planned business of the Company but
which discuss the general state of the industry, government action with respect
thereto and personal opinions.


     6.    Disclosure. The Executive, for a period commencing on the date of this
Agreement through the later of the termination of the Director Term and
November 17, 2005, agrees to communicate the contents of the Executive’s
obligations under Sections 3, 4, 5, 6 and 8 of this Agreement to any business
entity which the Executive intends to be employed by, associated in business
with, or represent.


     7.    Breach.


            (a)  In the event the Executive violates any provision of Sections 3, 4 or
5 to the extent that there is a specific time period during which the 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.


            (b)  If the 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.


            (c)  The Executive acknowledges and agrees that the remedy at law available
to the Company for breach by the Executive of any of the Executive’s
obligations under Sections 3, 4 and 5 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, the 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 the Executive’s violation of any provision of Section 3, 4 or 5 of this
Agreement, the Company shall have the right to enforce this Agreement by
specific remedies, which shall include, among other things, temporary and
permanent injunctions, and 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,
it being the understanding of the undersigned parties hereto that damages, the
forfeitures described above and injunctions shall all be proper modes of relief
and are not to be considered as alternative remedies.


            (d) Without limiting the applicability of Section 7(b) or in any way
affecting the right of the Company to seek equitable remedies thereunder, in
the event that the Executive breaches any of the provisions of Sections 3, 4 or
5 or engages in any activity that would constitute a breach save for the
Executive’s action being in a state where Section 3, 4 or 5 is not enforceable
as a matter of law, then the Company’s obligation to pay any remaining cash
payments that have not already been paid and to provide any remaining benefits
that have not already been provided to the Executive pursuant to Section 2
shall be terminated and within ten (10) days of notice of such termination of
payment, the Executive shall return all cash payments and benefits payable
pursuant to Section 2.


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            (e)  Any decision by the Company not to exercise any of its rights under
this Section 7 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.


     8.    Continued Availability and Cooperation.


            (a)  Following the Resignation Date and in consideration of the payments
made under Section 2 herein, the 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 the Executive’s employment by
the Company. This cooperation by the 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 upon reasonable notice and in a manner that does not
unreasonably interfere with Executive’s other business activities;




		
	 	     (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)  The 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 retained on his behalf by the Company),
incurred in connection with any cooperation, consultation and advice rendered
under this Agreement after the Resignation Date. The Executive shall not
unreasonably withhold the Executive’s availability for such cooperation,
consultation and advice. The Company shall pay the Executive at a daily rate
of $1,000 for time incurred for such cooperation following of the later of the
termination of the Director Term and November 17, 2005.


      9.    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 the Executive or
others. In no event shall the Executive be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement and such amounts shall
not be reduced whether or not the Executive obtains other employment, except to
the extent such employment constitutes a breach of the promises set forth in
Sections 3, 4 or 5.


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     10.    Successors and Binding Agreement.


           (a)  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.


            (b)  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.
Notwithstanding the foregoing, the Executive agrees that the Company Group may
take all actions necessary to protect their respective Confidential Information
and goodwill by enforcing the provisions of section 3, 4 and 5 in the same
manner and means as the Company.


            (c)  This Agreement will inure to the benefit of and be enforceable by the
Executive’s personal or legal representatives, executors, administrators,
successors, heirs, distributees and/or legatees. The death or disability of
the 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.


            (d)  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 10. Any purported assignment, transfer or delegation
not so provided for in this Section 10 shall be null and void and of no
consequence.


            (e)  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 10, no third party will have any rights hereunder.


     11.    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, or as necessary to enforce either party’s rights
hereunder:


            (a) The Executive will maintain the confidentiality of all provisions of
this Agreement and the circumstances and negotiations giving rise hereto and
will not disclose the provisions of this Agreement to any person not a party
hereto (other than (i) the Executive’s spouse, (ii) the 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 6 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


11






 


to the terms of Section 5 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 the Executive).


            (b)  The Company will maintain the confidentiality of all provisions of
this Agreement and the circumstances and negotiations giving rise hereto.


     12.    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 of the Company) at its principal executive
offices at 2001 Edmund Halley Drive, Reston, Virginia 20191 and to the
Executive at the Executive’s principal residence at 300 Wye Narrows Drive,
Queenstown, Maryland 21658 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.


      13.    Taxes; Payments.


            (a)  Subject to Section 2(f), the Executive shall be responsible for the
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 the Executive
pursuant to this Agreement.


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


     14.    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 the 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.


     15.    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) The Executive acknowledges that, as a result of his resignation from
employment with the Company, he is not entitled to any compensation and
benefits under the Severance Plan.


12






 


            (c)  The Executive represents that, as of the Resignation Date, he does not
know of any matters not previously presented to the Board or to the Company’s
compliance officers that would require disclosure pursuant to the Company’s
Code of Corporate Conduct.


            (d)  This Agreement will not affect any indemnification or other rights
under any indemnification agreement between the Executive and the Company or
the Company’s articles of incorporation or by-laws. The Company shall continue
the Executive’s coverage under the directors’ and officers’ liability coverage
maintained by the Company as in effect from time to time to the same extent as
other current and former senior executives of the Company in addition to such
coverage as is extended to him as a member of the Board.


            (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.


     16.    Dispute Resolution.


            (a)  Any dispute between the parties under this Agreement will be resolved
(except as provided below) through informal arbitration by a single arbitrator
selected under the rules of the American Arbitration Association for
arbitration of employment disputes conducted in Fairfax County, Virginia. Each
party will be entitled to present evidence and argument to the arbitrator. The
arbitrator will have the right only to interpret and apply the provisions of
this Agreement and may not change any of its provisions, except as expressly
provided in Section 18 and only in the event the Company has not brought an
action in a court of competent jurisdiction to enforce the covenants in
Sections 3, 4, or 5 of this Agreement or to enforce the covenants in the
Confidentiality Agreement. The arbitrator will permit reasonable pre-hearing
discovery of facts, to the extent necessary to establish a claim or a defense
to a claim, subject to supervision by the arbitrator. The determination of the
arbitrator will be conclusive and binding upon the parties and judgment upon
the same may be entered in any court having jurisdiction thereof. The
arbitrator will give written notice to the parties stating the arbitrator’s
determination, and will furnish to each party a signed copy of such
determination. The expenses of arbitration will be borne equally by the
Company and the Executive or as the arbitrator equitably determines consistent
with the application of state or federal law; provided, however, that the
Executive’s share of such expenses will not exceed the maximum permitted by
law. Any arbitration or action pursuant to this Section 16 will be governed by
and construed in accordance with the substantive laws of the State of Maryland
and, where applicable, federal law, without giving effect to the principles of
conflict of laws of such State.


            (b) Notwithstanding Section 16(a), the Company will not be required to
seek or participate in arbitration regarding any actual or threatened breach of
the Executive’s covenants in Sections 3, 4, or 5 of this Agreement or in the
Confidentiality Agreement, but may pursue its remedies, including injunctive
relief, for such breach in a court of competent jurisdiction in Fairfax County,
Virginia, or in the sole discretion of the Company, in a court of competent
jurisdiction where the Executive has committed or is threatening to commit a
breach of the


13






 


Executive’s covenants, and no arbitrator may make any ruling inconsistent
with the findings or rulings of such court.


           17.    Governing Law; Jurisdiction; Venue. The validity, interpretation,
construction and performance of this Agreement will be governed by and
construed in accordance with the substantive and procedural laws of the State
of Maryland, the domicile of the Executive at the time of his execution of this
Agreement, without giving effect to any otherwise applicable 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 jurisdiction in any
action, suit or proceeding 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 the 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. In addition, in the event the Company determines
that there is an actual or threatened breach by the Executive of his covenants
in Sections 3, 4 or 5 of this Agreement or in the Confidentiality Agreement,
the Company may pursue its remedies, including injunctive relief, for such
breach in a court of competent jurisdiction where the Executive has committed
or is threatening to commit a breach of the Executive’s covenants.


           18.    Validity/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. If any provision or clause of this Agreement, or portion
thereof, shall be held by any court or other tribunal of competent jurisdiction
to be illegal, invalid or unenforceable in such jurisdiction, the provision so
held to be invalid, unenforceable or otherwise illegal will be reformed to the
extent (and only to the extent) necessary to make it enforceable, valid or
legal. To the extent any provisions of held to be invalid, unenforceable or
otherwise illegal cannot be reformed, such provisions are to be stricken
herefrom and the remainder of this Agreement will be binding on the parties and
their successors and assigns as if such unenforceable, invalid or illegal
provisions were never included in this Agreement from the first instance. It
is the intention of the parties that, if any court construes any provision or
clause of this Agreement, or any portion thereof, to be illegal, void or
unenforceable because the duration of such provision or the area or matter
covered thereby, such court shall reduce the duration, area, or matter of such
provision, and, in its reduced form, such provision shall then be enforceable
and shall be enforced.


           19.    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.


           20.    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.


           21.    Authorization by the Company. The Company represents and warrants to
the Executive that the execution, delivery and performance of this Agreement
and the


14






 


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.


           22.    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.


[The remainder of this page is intentionally blank.]



15






 





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



	 	 	 	 
	 	 	Nextel Communications, Inc.
	 
	 
	Witness:

	 	By:	/s/ Timothy M. Donahue



Timothy M. Donahue

President and Chief Executive Officer
	 
	Witness:

	 	
/s/ Morgan E. O’Brien



Morgan E. O’Brien



 






 



EXHIBIT A



[Attach Schedule of All Options Granted]



 






 





EXHIBIT A-1



     The following unvested options will vest and remain exercisable in accordance
with Section 2(b)(i) of the Agreement:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Grant Date	 	Plan ID	 	Grant Type	 	Options	 	Option Price
	
	 	
	 	
	 	
	 	

	2/17/2000
	 	Plan 10	 	Non-qualified	 	 	50,000	 	 	$	61.9375	 
	2/20/2001
	 	Plan 10	 	Non-qualified	 	 	25,000	 	 	$	22.3125	 
	7/27/2001
	 	Plan 10	 	Non-qualified	 	 	6,563	 	 	$	17.3600	 
	9/28/2001
	 	Plan 10	 	Non-qualified	 	 	7,188	 	 	$	8.6400	 
	11/30/2001
	 	Plan 10	 	Non-qualified	 	 	7,813	 	 	$	10.7100	 
	2/13/2002
	 	Plan 10	 	Non-qualified	 	 	44,682	 	 	$	5.0200	 
	4/23/2002
	 	Plan 10	 	Non-qualified	 	 	90,626	 	 	$	5.3500	 
	2/13/2003
	 	Plan 10	 	Non-qualified	 	 	50,001	 	 	$	12.3100	 
	5/30/2003
	 	Plan 10	 	Non-qualified	 	 	13,438	 	 	$	14.9900	 
	8/29/2003
	 	Plan 10	 	Non-qualified	 	 	14,376	 	 	$	19.3300	 



 






 



EXHIBIT A-2



The following vested options will remain exercisable in accordance with Section
2(b)(ii) of the Agreement:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Grant Date	 	Plan ID	 	Grant Type	 	Options	 	Option Price
	
	 	
	 	
	 	
	 	

	2/11/1998
	 	Plan 10	 	Non-qualified	 	 	100,000	 	 	$	13.2813	 
	2/18/1999
	 	Plan 10	 	Non-qualified	 	 	100,000	 	 	$	15.2813	 
	2/17/2000
	 	Plan 10	 	Non-qualified	 	 	150,000	 	 	$	61.9375	 
	2/20/2001
	 	Plan 10	 	Non-qualified	 	 	75,000	 	 	$	22.3125	 
	7/27/2001
	 	Plan 10	 	Non-qualified	 	 	8,437	 	 	$	17.3600	 
	2/13/2003
	 	Plan 10	 	Non-qualified	 	 	9,999	 	 	$	12.3100	 
	5/30/2003
	 	Plan 10	 	Non-qualified	 	 	1,562	 	 	$	14.9900	 
	8/29/2003
	 	Plan 10	 	Non-qualified	 	 	624	 	 	$	19.3300	 



 






 



EXHIBIT B



[Attach Nextel Non-Disclosure and Assignment of Inventions Agreement, dated
August 27, 2003]


 






 


EXHIBIT C



Form of Release



     WHEREAS, Nextel Communications, Inc. a Delaware corporation, and MORGAN E.
O’BRIEN (the “Executive”) are parties to a Resignation and Non-Competition
Agreement, dated November 11, 2003 (the “Agreement”); and


     WHEREAS, the Executive’s employment with the Company terminated on the
Resignation Date (as defined in Section 1 of the Agreement); and


     WHEREAS, the Executive is required to sign this release (the “Release”)
within twenty-one days after his Resignation Date in order to receive the
payments to be made and the benefits to be received by the Executive pursuant
to Section 2 of the Agreement.


     NOW THEREFORE, in consideration of 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
Executive agrees as follows:


     This Release is effective on the Effective Date, as defined in Section 7(b)
hereof.


     1.    As a material inducement to the Company to enter into the Agreement and
in consideration of the payments to be made and the benefits to be received by
the Executive pursuant to Section 2 of the Agreement, the Executive, for
himself and the Executive’s dependents, successors, assigns, heirs, executors
and administrators (and the Executive’s and their legal representatives of
every kind), hereby irrevocably and unconditionally releases, acquits and
forever discharges Nextel Communications, Inc. (the “Company”, a term which for
purposes of this Release includes its parents, predecessors, subsidiaries,
divisions, successors-in-interest, related or affiliated companies,
successors, all of its and their current and former officers, directors,
stockholders, members, employees, heirs, assigns, representatives, insurers,
agents and counsel and all persons acting by, through, under or in concert with
any of them, unless the context otherwise clearly requires) from any and all
arbitrations, claims, charges, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses including claims for attorney’s fees,
demands, damages, suits, proceedings, actions and/or causes of action of any
kind and every description, whether known or unknown, which the Executive now
has or may have had for, upon, or by reason of any cause whatsoever, known or
unknown, suspected or unsuspected (collectively “Claims”) that the Executive
now has, may have, owns, or holds, or claims to have, own, or hold, or any time
had, owned, or held, or claimed to have had, owned, or held against the
Company, up through the date of the execution of this Release. This complete
release of Claims includes, without express or implied limitation, the release
of all Claims of breach of express or implied contract; all Claims related to
the Executive’s employment and the termination of his employment; all Claims of
wrongful termination of employment whether in contract or tort; all Claims of
intentional, reckless, or negligent infliction of emotional distress; all
Claims of breach of any express or implied covenant of employment, including
the covenant of good faith and fair dealing; all Claims of interference with
contractual or advantageous relations, whether


 






 


prospective or existing; all Claims of deceit or misrepresentation; all
Claims of discrimination under local, state or federal law; and any legal
restrictions on the Company’s right to terminate employees, or any federal,
state, local statutory or common law or other governmental statute, regulation
or ordinance, including, without limitation, Section 1981 of Title 42 of the
United States Code, 42 U.S.C. §1981; and/or Title VII of the Civil Rights Act
of 1964; the Age Discrimination in Employment Act; the Americans with
Disabilities Act; the Equal Pay Act; the Fair Labor Standards Act; the Family
and Medical Leave Act; the Employee Retirement Income Security Act of 1974, as
amended; the Rehabilitation Act of 1973; the Racketeer Influenced and Corrupt
Organizations Act; the Virginia Human Rights Act; Chapter 11 of the 1976 Code
of Fairfax County, Virginia; the Maryland Human Relations Act; the Maryland
Equal Pay for Equal Work Act; all Claims of defamation or damage to reputation;
all Claims for reinstatement; all Claims for punitive or emotional distress
damages; all Claims for wages, bonuses, severance, back or front pay or other
forms of compensation which are based upon or arise from the acts, practices,
transactions, events, and/or facts underlying any wage claim that was or could
have been asserted; and all Claims for attorney’s fees and costs. This
complete release of claims does not include a release of any Claims that arise
from the Company’s obligations under the Agreement, to any benefits under the
Company’s employee benefit plans to which he is or will be entitled pursuant to
the terms of such plans in the ordinary course, except as otherwise provided in
Section 2 of the Agreement, or to any indemnity against claims, costs or
expenses to which he may be entitled as a result of having served as an officer
or director of the Company or any of its affiliates pursuant to their
respective articles or by-laws, any agreement with the Executive or any
policies of insurance they may maintain.


     2.    The Executive understands and acknowledges that the Company does not
admit any violation of law, liability or invasion of any of his rights and that
any such violation, liability or invasion is expressly denied. The
consideration provided for this Release is made for the purpose of settling and
extinguishing all claims and rights (and every other similar or dissimilar
matter) that the Executive ever had or now may have against the Company to the
extent provided in this Release. The Executive further agrees and acknowledges
that no representations, promises or inducements have been made by the Company
other than as appear in the Agreement.


     3.    The Executive agrees to release and discharge the Company, not only
from any and all claims which he could make on his own behalf, but also those
which may or could be brought by any person or organization, on his behalf for
monetary relief, and he specifically waives any right to recovery, directly or
indirectly, in connection with any class action or representative proceeding in
which a claim or claims against the Company for monetary relief may arise, in
whole or in part, from any event which occurred up through and including the
date of the Agreement.


     4.    The Executive acknowledges that his waiver and release of rights and
claims as set forth in the Agreement is in exchange for valuable consideration
which he would not otherwise be entitled to receive.


     5.    The parties understand, agree and intend that, upon receipt of payments
by the Company referred to in Section 2 of the Agreement, the Executive will
have received complete satisfaction of any and all claims, whether known,
suspected, or unknown, that he may


2






 


have or had against Company, and he thereby waives any and all relief not
explicitly provided for herein.


     6.    The Executive agrees to pay any reasonable legal fees or costs incurred
by the Company as a result of any breach of his promises in this Release,
including his promise to fully release Company from all claims and to
compensate its attorneys for their legal fees, except to the extent that he
challenges the validity of the Release under the Age Discrimination in
Employment Act, in which case the Company may only recover such fees and
expenses as may be permitted by state and federal law.


     7.    The Executive further agrees and acknowledges that:


           (a)  the Executive represents and agrees that he has been advised by the
Company to consult with his own legal counsel prior to executing and delivering
this Release, has had an opportunity to consult with and to be advised by legal
counsel of the Executive’s choice, fully understands the terms of this Release,
and enters into this Release freely, voluntarily, without coercion or duress of
any kind and intending to be bound;


           (b)  the Executive acknowledges that he has been given the opportunity to
consider the Agreement and this Release for a period of at least twenty-one
(21) days. In the event that the Executive has executed the Agreement and this
Release within less than twenty-one (21) days of the date of its delivery to
him, the Executive acknowledges that such decision was entirely voluntary and
that he had the opportunity to consider the Agreement and this Release for the
entire twenty-one (21) day period. The Executive and the Company acknowledge
that for a period of seven (7) days from the date that the Executive executes
this Release (the “Revocation Period”), he shall retain the right to revoke
this Release by written notice that is received by Leonard J. Kennedy, Senior
Vice President and General Counsel before the end of such Revocation Period.
Provided that this Release is not revoked pursuant to the preceding sentence,
the Agreement and this Release shall become effective, binding, irrevocable and
enforceable on the date immediately following the last day of the Revocation
Period (the “Effective Date”). If the Executive exercises his right to revoke
this Release, the Executive will forfeit his right to receive any of the
benefits provided for herein or therein, without affecting the effectiveness of
the termination of the Executive’s employment with the Company under Section 1
of the Agreement and without altering the termination of the Executive’s
employment from all offices and any directorships of each of the Company’s
subsidiaries and affiliates, and any fiduciary positions as of November 11,
2003.


     8.    The Executive represents that he has not filed any complaints or
lawsuits against the Company with any government agency or any court, and that
he will not seek to recover any monetary damages in the future with respect to
Claims that arose prior to the Effective Date of the Agreement; provided,
however, that this shall not limit the Executive from filing a lawsuit or
initiating an arbitration for the sole purpose of enforcing the Executive’s
rights under the Agreement or this Release.


     9.    The Executive waives and releases any claim that the Executive has or
may have to reemployment. The Executive agrees that the Executive will not
seek employment with the Company at any time in the future.


3






 


     IN WITNESS WHEREOF, the Executive has executed and delivered this Release
on the date set forth below.



	 	 	 	 
	Dated:	
	 	
 



Morgan E. O’Brien