exv10w1w1



 





Exhibit 10.1.1



*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




EXTENSION AMENDMENT TO THE

IDEN INFRASTRUCTURE 5 YEAR SUPPLY AGREEMENT AND TERM SHEET FOR SUBSCRIBER

UNITS AND SERVICES




     This Extension Amendment to the iDEN Infrastructure 5 Year Supply
Agreement and Term Sheet for Subscriber Units and Services (“Amendment”) is
entered into this 16th day of March, 2004 and shall be deemed effective as of
January 1, 2004 (“Effective Date”) between MOTOROLA, INC., a Delaware
corporation, by and through its Global Telecom Solutions Sector, with offices
at 1421 W. Shure Drive, Arlington Heights, Illinois 60004 (“Motorola”), and,
NEXTEL COMMUNICATIONS, INC., a Delaware corporation, with offices at 2001
Edmund Halley Drive, Reston, VA 20191 (“Nextel”); (Motorola and Nextel to be
collectively referred to as the “Parties” and each a “Party”).



     WHEREAS, Motorola and Nextel entered into the iDEN Infrastructure 5 Year
Supply Agreement effective as of the 1st day of January, 1999 (hereinafter
referred to as the “Existing Agreement”) and the Term Sheet for Subscriber
Units and Services dated as of the 31st day of December 2003 (the “Handset Term
Sheet”); and



     WHEREAS, Motorola and Nextel have now agreed upon the general terms of a
“funding model” that they expect to form the basis of the funding model

contained in an infrastructure supply supplement to the Master Sales Agreement
to be negotiated (the “New Agreement”); and



     WHEREAS, Motorola and Nextel wish to make certain amendments to and extend
the term of the Existing Agreement and the Handset Term Sheet in order to make
certain changes thereto effective as of the Effective Date and to allow
sufficient time to negotiate and execute the New Agreement (which will also
include as a handset supplement the 2003-05 Agreement as that term is defined
in Section 1 of the Handset Term Sheet); and



     WHEREAS, substantially all of the terms and conditions of the Existing
Agreement shall continue during the Extension Period (as defined in Section
2(b) below) prior to the Parties entering into the New Agreement, except for
the modifications explicitly set forth below; and



     WHEREAS, Section 35 of the Existing Agreement require that all
modifications be in writing and executed by authorized representatives of both
Parties.



     NOW, THEREFORE, in consideration of the promises and mutual obligations
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, Motorola and Nextel
agree as follows:




	1.	 	General
	 
	 	 	The Parties intend to enter into the New Agreement and intend that this
Amendment form the general basis for the funding model to be contained in
the infrastructure supply supplement to the New Agreement. All other
terms and conditions in this Amendment are interim terms only and will
not necessarily form the basis of terms contained in the New Agreement.
The Parties agree that the terms and conditions of this Amendment shall
have no effect on, and shall not constitute a waiver of, the rights,
claims and obligations of either Party arising under or relating to the
Existing Agreement for events that occurred on or prior to the Effective
Date. Finalization of the New Agreement is subject to further
negotiation and contingent upon final agreement between the Parties of
relationship issues currently being addressed by Senior Management of
both Parties. Motorola and Nextel agree to negotiate in good faith and to
make all reasonable efforts to finalize and execute the New Agreement on or before April 12, 2004, provided that
nothing herein shall obligate either Party to conclude or enter into any
such New Agreement or any other business arrangement and unless
explicitly provided otherwise, each Party shall be free to take positions
in 




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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.





	 	 	any negotiations that are inconsistent or conflict with the terms of
this Amendment, the Existing Agreement and the Handset Term Sheet.
	 
	 	 	Except as set forth herein, all capitalized terms not defined herein
shall have the meanings given to them in the Existing Agreement or the
Handset Term Sheet, as appropriate.






	2.	 	Modifications to Existing Agreement
	 
	 	 	Motorola and Nextel hereby agree as follows (all references are to
sections in the Existing Agreement):






	(a)	 	Section 28, Term, is hereby amended by substituting “the
earlier of (1) December 31, 2004 and (2) the effective date of any
New Agreement executed by the Parties” in place of the date
“December 31, 2003”.
	 
	(b)	 	With respect to purchases made on or after January 1, 2004,
the pricing and related terms as described in the Funding Model
attached as Exhibit A to this Amendment shall apply where
applicable, in place of the pricing set forth in the Existing
Agreement. For the avoidance of doubt, such new pricing and terms
applicable during the Extension Period shall include pricing with
respect to RTU, SMP and Build Accelerators. [*]  For purposes of this Amendment, “Extension
Period” shall mean the period from the Effective Date to the date
the amended Existing Agreement terminates or expires.
	 
	(c)	 	The accrued Entitlement Credits will be deemed earned and may
be used following execution of the New Agreement if the New
Agreement is fully executed on or prior to December 31, 2004;
however, the accrued Entitlement Credits will be void if the New
Agreement is not executed on or prior to that date.
	 
	(d)	 	[*]
	 
	(e)	 	Section 10.1 is amended by adding at the end, “by Motorola to
Customer under this Agreement, but only for such product.”
	 
	(f)	 	Section 10.2.1 is amended by adding to the end, “subject to
the qualified applicant reciprocating by licensing to Motorola on
fair and equitable terms the essential patents needed to implement
standards-based technology embodied in Motorola’s wireless
products.”
	 
	(g)	 	Section 10.2.2 is amended by adding to the beginning of the
second sentence, “Subject to the third party agreeing to
confidentiality restrictions and protection obligations that are no
less stringent than Motorola’s then standard Non-Disclosure
Agreement.”
	 
	(h)	 	Section 12.0, “Confidentiality”, shall be deleted in its
entirety and replaced with the language set forth in Exhibit C. In
the event that the Parties do not execute the New Agreement, the
commitments in Exhibit C, Paragraph 6 will continue for three years
from the expiration of this Amendment.




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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.





	3.	 	Clarification Regarding Terms Applicable During Extension Period
	 
	 	 	Except as otherwise provided herein, all terms and conditions set forth
in the Existing Agreement shall continue through the Extension Period.
For the avoidance of doubt:






	(a)	 	Pricing for Affiliates. Motorola’s commitment, pursuant to
Section 4.22, regarding pricing to Customer’s international
Affiliates and Nextel Partners Operating Corp. shall continue during
the Extension Period, subject to the terms of Section 6.6. During
the Extension Period, Motorola may, at its option, either i)
continue the prior pricing with a retroactive price adjustment and
applicable credits to be given when new master sales agreements are
entered into with such entities; or ii) extend the new software IPL
and SMP pricing to these entities on an interim basis.
	 
	(b)	 	EBTS Pricing. EBTS Pricing shall continue to be calculated in
the manner described in Section 6.3.3 and in Exhibit J-1 and J-2
attached to the Existing Agreement.
	 
	(c)	 	Infrastructure Rebate Program. The Infrastructure rebate
program, described in Section 6.3.8, applied only through the end of
calendar year 2003. Such program is not extended hereby, and shall
not be applicable during the Extension Period.
	 
	(d)	 	BSC Pricing. Legacy BSC pricing shall continue in accordance
with the terms currently in effect, which are in accordance with
Proposal #700.1828, dated May 30, 2000.
	 
	(e)	 	Other Pricing. All other pricing shall be in accordance with
the Motorola iDEN Infrastructure Price Book currently in effect, as
updated from time to time by Motorola.






	4.	 	Extension of the Handset Term Sheet
	 
	 	 	The Parties amend the Handset Term Sheet by deleting the third and fourth
sentences of Section 1 (Term) in their entirety and replacing them with
the following:
	 
	 	 	“This Term Sheet will remain in effect until December 31, 2004 or until
the parties execute the New Agreement (including the 2003-05 Agreement as
a handset supplement) whichever occurs first.”
	 
	 	 	The Parties amend Section 5 (Confidentiality) of the Handset Term Sheet
by deleting the first paragraph and replacing it with the following,
“Confidential Information” shall mean the terms, conditions, and pricing
of this Term Sheet and the content of any documents or information, which
is identified in writing as being confidential and which is acquired from
the other party in connection with this Term Sheet, the negotiations
between the Parties regarding the multi-year supply agreement that are
contemplated by this Term Sheet, including information related to
potential subscriber related business activities between the Parties
(“Potential Business”). Each party shall copy and use any such
Confidential Information solely for the purpose of i) fulfilling their
respective obligations under this Term Sheet or ii) in evaluating
Potential Business. The Parties agree not to disclose any Confidential
Information to any third party for any purpose without prior written
approval from the other Party, and shall not use any Confidential
Information for any purpose other than in furtherance of this Term Sheet
or in evaluating Potential Business.
	 
	5.	 	Intellectual Property Rights
	 
	 	 	During the Extension Period neither Party grants the other Party any
Intellectual Property rights other than as set forth in the Existing
Agreement, the Handset Term Sheet or as separately negotiated and agreed
to by the Parties in writing. Neither Party waives any Intellectual
Property rights by execution of this Amendment, and each Party retains
any and all of its respective Intellectual Property rights as provided
for in the Existing Agreement, the Handset Term Sheet




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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.





	 	 	and/or by operation of the
relevant federal and state laws.
	 
	 	 	For the purposes of this Section 5 “Intellectual Property” means (i) all
copyrights, whether registered or not, including, without limitation, all
applications, registrations and renewals thereof, (ii) all trade names,
trade dress rights, trademarks and service marks including, without
limitation, all applications, registrations and renewals thereof and
logos, including, without limitation, any Internet domain names, and
applications therefore, together with all translations, adaptations,
derivations and combinations and like intellectual property rights, (iii)
all patents, patent applications, and patent disclosures, together with
all reissuances, divisions, continuations, continuations-in-part,
substitutes, extensions, and reexaminations thereof and any foreign
counterparts thereto, (iv) Confidential Information (as defined in
Exhibit C), (v) all mask works and all applications, registrations and
renewals in connection therewith, (vi) all computer software (including
data and related documentation), whether purchased, licensed or
internally or jointly developed, and (vii) all copies and tangible
embodiments thereof in whatever form or medium.
	 
	6.	 	Entire Agreement
	 
	 	 	This Amendment and its Exhibits, the Existing Agreement and the Handset
Term Sheet constitute the entire understanding between the Parties
concerning the subject matter hereof and supersede all prior discussions,
agreements and representations, whether oral or written and whether or
not executed by Nextel and Motorola. No modification, amendment or other
change may be made to this Amendment unless reduced to writing and
executed by authorized representatives of both Parties.
	 
	7.	 	Ratification
	 
	 	 	Except as specifically stated in this Amendment, the Existing Agreement
and the Handset Term Sheet are, in all other respects, ratified,
confirmed and continue in full force and effect.
	 
	8.	 	Authority
	 
	 	 	Each Party represents and warrants that: (i) it has obtained all
necessary and requisite approvals, consents and authorizations of third
parties and governmental authorities to enter into this Amendment and to
perform and carry out its obligations hereunder; (ii) the persons
executing this Amendment on behalf of each Party have express authority
to do so, and, in so doing, to bind the Party thereto; (iii) the
execution, delivery, and performance of this Amendment does not violate
any provision of any bylaw, charter, regulation, or any other governing
authority of the Party; and, (iv) the execution, delivery and
performance of this Amendment has been duly authorized by all necessary
partnership or corporate action and this Amendment is a valid and binding
obligation of such Party, enforceable in accordance with its terms.






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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


     IN WITNESS WHEREOF, Motorola and Nextel have entered into this Amendment
as of the Effective Date first written above.



	 	 	 	 	 	 	 	 	 
	

MOTOROLA, INC.
Global Telecom Solutions Sector	 	NEXTEL COMMUNICATIONS, INC.
	

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	/s/  Charles
F. Wright

	 	By:
	 	/s/  Thomas N. Kelly, Jr.

	
	

	 		 	










	 	 	 	 	 	 	 
	
	 	 	 	 	 	 
	
Name:	 	Charles F. Wright
	 	Name:	 	Thomas N. Kelly, Jr.

	

	

	 	 	

	 
	 	 	 	 	 	 
	Title:
	 	SR VP & GM GTSS-i DEN
	 	Title:	 	EVP COO

	

	

	 	 	







	 	 	 	 	 	 	 
	
	 	 	 	 	 	 
	 
	
	 	
	 	By:	 	Paul
Saleh

	

	
	 	 	

	 
	
	 	
	 	Name:	 	

	

	
	 	 	

	 
	 	 	 	 	 	 
	
	 	
	 	Title:	 	

	

	
	 	 	








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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




EXHIBIT A




FUNDING MODEL





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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Nextel Funding
Model-Alternative 1




Revised Proposal
Overview





	•	 	RTU (IPL) Terms






	•	 	SMP Terms






	•	 	[*]






	•	 	Term of Agreement






	•	 	Build Accelerators




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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Nextel Funding Model -Alternative 1




Proposed RTU Terms (IPL)




[*]





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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Nextel Funding Model
-Alternative 1




Proposed RTU Terms (IPL)
– Continued




[*]





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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Nextel Funding Model -Alternative 1

Proposed SMP Terms

[*]







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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Nextel Funding Model -Alternative 1

Proposed SMP Terms – Continued

[*]






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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Nextel Funding Model -Alternative 1

Proposed Entitlement Percentages




	 
	CATEGORY
	 	% ENTITLEMENT






[*]




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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Nextel Funding Model – Alternative 1

Entitlement Credit

Key Terms and Conditions


[*]





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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Nextel Funding Model
– Alternative 1




Entitlement Credit




Key Terms and Conditions
— Continued


[*]






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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Nextel Funding Model
-Alternative 1




Term of Agreement





	•	 	Initial term of 5 years: 2004 – 2008






	•	 	Agreement renewable in its entirety for additional terms of 1 year if
mutually agreed (except for end of life support obligations on
hardware)




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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Nextel Funding Model
– Alternative 1




[*]




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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Nextel Funding Model
-Alternative 1




Incremental WiDEN And
Footprint RF Build Out



To enhance the 800/900 MHz build out accelerators programs previously offered,
Motorola proposes a special program to offset incremental BR’s required for
WiDEN control channels and to expand Nextel’s RF footprint to continue
improving it’s competitive position. Key aspects of the program are:





	•	 	The forecasted [*] 800MHz BR’s forecasted for 2004 above the WiDEN contract commitment will be discounted by an additional
amount equal to [*] 800 MHz quad BR’s [*]






	-	 	[*]
	 
	-	 	Based upon current Nextel forecast






	•	 	Up to [*] 800 MHz sites (1 iSC3 rack w/redundant controller and 1 quad base radio) to be used for footprint expansion shall
be discounted [*]






	•	 	Footprint expansion site shipments shall be limited to [*] in 2004 and [*] in 2005




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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




Nextel Funding Model -Alternative 1




Incremental WiDEN And Footprint RF Build Out




[*]





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	*	 	CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.





EXHIBIT B


[*]







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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.







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*CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.




EXHIBIT C




CONFIDENTIALITY



1. Motorola and Company are each a disclosing party (“Discloser”) and a
receiving party (“Recipient”) under this Agreement.



2. Confidential Information means information that is:





	 	(a)	 	disclosed between the Parties related to their business interests
in oral, written, graphic, machine recognizable, and/or sample form,
being clearly designated, labeled or marked as confidential or its
equivalent;
	 
	 	(b)	 	obtained by examination, testing or analysis of any infrastructure
hardware, software or any component part thereof provided by Discloser
to Recipient; or
	 
	 	(c)	 	obtained by Motorola as a result of access to Nextel’s network
operations to the extent the information relates to Nextel customer
behavior, usage patterns and other call model data.




3. [*]



4. The Parties acknowledge that whether information disclosed between the
Parties falls under the definition of Confidential Information is not
dispositive with respect to inventorship, authorship or patent, copyright or
trademark ownership rights.



5. The requirement in Section 3 notwithstanding, neither Party will
intentionally disclose to third parties Confidential Information that was
disclosed orally that the Recipient knew or should have known, because of the
circumstances of disclosure or the nature of the information itself, to be
proprietary and confidential to the Discloser.



6. The Recipient will only use the Discloser’s Confidential Information to
further the purposes of the Existing Agreement and will protect Confidential
Information from disclosure to third parties, including government agencies,
using the same degree of care used to protect its own confidential or
proprietary information of like importance, but in any case using no less than
a reasonable degree of care. Subject to the conditions in 6(d), Recipient may
disclose Confidential Information to the following, provided they are bound to
protect the received Confidential Information from unauthorized use and
disclosure under a separate agreement with terms substantially similar to those
set forth in this Agreement:



(a) its wholly-owned subsidiaries;



(b) Nextel Partners, Inc., NII Holdings, Inc., and Extend America, Inc., except
to the extent that Confidential Information includes Motorola pricing
information; and



(c) its agents, employees and contractors, and its affiliates’ agents,
employees and contractors.



(d) Confidential Information will be shared only on a strict need to know basis
and will not be disclosed to any third party without the prior written consent
of the Discloser.



7. Confidential Information does not include information that:





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TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.



(a) was publicly known to a third party at the time of Discloser’s
communication of the information to Recipient; or



(b) becomes publicly known to a third party through no fault of Recipient
subsequent to the time of Discloser’s communication of the information to
Recipient; or



(c) was lawfully in Recipient’s possession free of any obligation of confidence
or breach of any confidentiality agreement at the time of Discloser’s
communication of the information to Recipient; or



(d) is developed by Recipient independently of and without reference to any of
Discloser’s Confidential Information or other information that Discloser
disclosed in confidence to any third party; or



(e) is rightfully obtained by Recipient from a third party authorized to make
such disclosure without restriction or breach of a confidentiality agreement;
or



(f) is identified by Discloser as no longer proprietary or confidential.



8. In the event Recipient is required by law, regulation or court order to
disclose any of Discloser’s Confidential Information, Recipient will promptly
notify Discloser in writing prior to making any such disclosure in order to
facilitate Discloser seeking a protective order or other appropriate remedy
from the proper authority. Recipient agrees to cooperate with Discloser in
seeking such order or other remedy. Recipient further agrees that if Discloser
is not successful in precluding the requesting legal body from requiring the
disclosure of the Confidential Information, it will furnish only that portion
of the Confidential Information that is legally required to be disclosed and
will exercise all reasonable efforts to obtain reliable assurances that
confidential treatment will be accorded the Confidential Information.



9. All Confidential Information disclosed under this Agreement (including
information in computer software or held in electronic storage media) shall be
and remain the property of Discloser. All such Confidential Information in
tangible form shall be returned to Discloser promptly upon written request or
the termination or expiration of this Agreement. Recipient shall either return
or destroy all Confidential Information in its or its affiliates possession and
Recipient, its affiliates, or any agents, employees or contractors of Recipient
or its affiliates shall not retain in any form the Confidential Information
after termination or expiration of this Agreement. Upon destruction by
Recipient of any Confidential Information pursuant to this Agreement, Recipient
shall promptly provide to Discloser a written certification, signed by an
authorized executive (director level or above) of Recipient, confirming the
destruction of such Confidential Information. However, Recipient may retain one
archival copy of the Confidential Information which it may use only in case of
a dispute concerning this Agreement.



10. Except upon mutual written agreement, or as may be required by law, no
Party shall in any way or form disclose the Confidential Information or terms
of this Agreement, the discussions that gave rise to this Agreement, or the
fact that there have been, or may be, discussions or negotiations covered by
this Agreement. In the event a Party reasonably determines that the
confidentiality protections afforded to it under this Agreement are inadequate,
it shall notify the other Party in writing and specify the basis for the
determination. Upon receipt of the notice, both Parties shall meet and confer
in a good faith effort to mutually resolve the identified inadequacies of the
existing confidentiality protections and, if necessary, impose additional
protective measures.



11. The Parties acknowledge that Confidential Information is unique and
valuable, and that disclosure in breach of this Agreement may result in
irreparable injury to Discloser for which monetary damages alone would not be
an adequate remedy. Accordingly, the Parties agree that in the event of a
breach or threatened breach of confidentiality, the Discloser shall be entitled
to seek an order for specific performance and injunctive or other equitable
relief as a remedy for any such breach or anticipated breach. Any such relief
shall be in addition to and not in lieu of any appropriate relief in the way of
monetary damages.





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