EXHIBIT 10.3
**INDEMNIFICATION AGREEMENT**
     This Indemnification Agreement, dated as of the date set forth on thesignature page hereto (this “***Agreement***”), is between Nextel Communications,Inc., a Delaware corporation (the “***Company***”), and the individual listed on thesignature page hereto as “***Indemnitee***.”
**RECITALS:**
     A. Section 141 of the Delaware General Corporation Law (the “***DGCL***”)provides that the business and affairs of a Delaware corporation is to bemanaged by or under the direction of its board of directors.
     B. Pursuant to Sections 141 and 142 of the DGCL, significant authoritywith respect to the management of the Company has been delegated to theofficers of the Company.
     C. By virtue of the managerial prerogatives vested in the directors andofficers of a Delaware corporation, directors and officers act as fiduciariesof the corporation and its stockholders.
     D. Thus, it is important to the Company and its stockholders that theCompany have capable persons reasonably available to serve as directors andofficers of the Company.
     E. In recognition of the need for corporations to be able to inducewell-qualified persons to accept positions in corporate management, Delawarelaw authorizes (and in some instances requires) corporations to indemnify theirdirectors and officers and further authorizes corporations to purchase andmaintain insurance for the benefit of their directors and officers.
     F. The Delaware courts have recognized that indemnification by acorporation serves various legitimate purposes, including (1) allowingcorporate officials to resist unjustified lawsuits and claims, secure in theknowledge that, if vindicated, the corporation will bear the expense oflitigation and (2) encouraging capable people to serve as corporate directorsand officers, secure in the knowledge that the corporation will absorb thecosts of defending their honesty and integrity.
     G. The number of lawsuits challenging the judgment and actions ofdirectors and officers of Delaware corporations, the costs of defending thoselawsuits and the threat to directors’ and officers’ personal assets have allmaterially increased over the past several years, in many instances chillingthe willingness of capable people to undertake or continue the responsibilitiesimposed on corporate directors and officers.
     H. Recent federal legislation and rules adopted by the Securities andExchange Commission and the national securities exchanges have exposed suchdirectors and officers to new and substantially broadened civil liabilities.
 

 

     I. Under Delaware law, a director’s or officer’s right to be reimbursedfor the costs of defense of certain actions, whether such claims are assertedunder state or federal law, does not depend upon the merits of the claimsasserted against the director or officer and is separate and distinct from anyright to indemnification the director or officer may be able to establish.
     J. Indemnitee is or will be a director or officer of the Company andpossibly one or more of its subsidiaries and his/her willingness to serve orcontinue to serve in such capacities is predicated, in substantial part, uponthe Company’s willingness to indemnify him/her in accordance with theprinciples reflected above, to the fullest extent permitted by the laws of thestate of Delaware, and upon the other undertakings set forth in this Agreement.
     K. Therefore, in recognition of the need to provide Indemnitee withappropriate protection against personal liability, in order to procureIndemnitee’s continued service as a director or officer of the Company and toenhance Indemnitee’s ability to serve the Company in an effective manner, andin order to provide such protection pursuant to express contract rights(intended to be enforceable irrespective of, among other things, any amendmentto the Company’s certificate of incorporation or bylaws (collectively, the“***Constituent Documents***”), any change in the composition of the Company’s Boardof Directors (the “***Board***”), or any Change in Control of or Business Combinationrelating to the Company), the Company wishes to provide in this Agreement forthe indemnification of and the advancement of Expenses to Indemnitee as setforth in this Agreement and for the continued coverage of Indemnitee under theCompany’s directors’ and officers’ liability insurance policies.
     L. In light of the considerations referred to in the preceding recitals,it is the Company’s intention and desire that the provisions of this Agreementbe construed liberally to maximize the protections to be provided to Indemniteehereunder.
     Now, therefore, the parties hereby agree as follows:
     **1. Certain Definitions.**In addition to terms defined elsewhere herein,the following terms have the following meanings when used in this Agreementwith initial capital letters:
          (a) “***Change in Control***” means the occurrence after the date of thisAgreement of any of the following events:
               (i) the acquisition by any individual, entity or group (within themeaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “***Person***”)of beneficial ownership (within the meaning of Rule 13d-3 promulgatedunder the Exchange Act) (“***Beneficial Ownership***”) of 50% or more of thecombined voting power of the Voting Stock of the Company; *provided*,*however*, that for purposes of this Section 1(a)(i), the followingacquisitions (“***Exempt Transactions***”) will not constitute a Change inControl: (A) any acquisition of Voting Stock of the Company by theCompany or any Subsidiary; (B) any acquisition of Voting Stock of theCompany by any
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  employee benefit plan (or related trust) sponsored or maintained bythe Company or any Subsidiary; and (C) any acquisition of Voting Stock ofthe Company by any Person pursuant to a Business Combination thatcomplies with clauses (A) and (B) of Section 1(a)(iii) below;
               (ii) a majority of the Directors are not Incumbent Directors;
               (iii) the consummation of a reorganization, merger or consolidation,or sale or other disposition of all or substantially all of the assets ofthe Company or the acquisition of assets of another corporation, or othersimilar transaction (each, a “***Business Combination***”), unless, in eachcase, (A) immediately following such Business Combination all orsubstantially all of the Persons who were the Beneficial Owners of VotingStock of the Company immediately prior to such Business CombinationBeneficially Own, directly or indirectly, a majority of the combinedvoting power of the then outstanding shares of Voting Stock of the entityresulting from such Business Combination (including, without limitation,an entity which as a result of such transaction owns the Company or allor substantially all of the Company’s assets either directly or throughone or more subsidiaries) or (B) such Business Combination is anotherwise Exempt Transaction; or
               (iv) the Company files a report or proxy statement pursuant to theExchange Act disclosing in response to Form 8-K or Schedule 14A that achange in control of the Company has occurred, except as a result of anExempt Transaction.
               (v) For purposes of this Section 1(a), the following terms will havethe following meanings when used herein with initial capital letters:
(A) “***Exchange Act***” means theSecurities Exchange Act of 1934, as amended. (B) “***Incumbent Directors***”means the individuals who, as of the date hereof,are directors of the Company and any individualbecoming a director subsequent to the date hereof(including other Incumbent Directors who firstbecame directors after the date hereof) whoseelection, nomination for election by the Company’sstockholders or appointment was approved by a voteof at least two-thirds of the then IncumbentDirectors on the Board or a duly authorizeddirectorate committee (either by a specific voteor by approval of the proxy statement of theCompany in which such individual is named as anominee for director, without objection to suchnomination); provided, however, that an individualwill not be an Incumbent Director if suchindividual’s election or appointment to the Boardoccurs as a result of an
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  actual or threatened election contest (asdescribed in Rule 14a-12(c) of the Exchange Act)with respect to the election or removal ofdirectors or other actual or threatenedsolicitation of proxies or consents by or onbehalf of a Person other than the Board. (C) “***Subsidiary***” means anentity in which the Company directly or indirectlyBeneficially Owns 50% or more of the outstandingVoting Stock. (D) “***Voting Stock***” meanssecurities entitled to vote generally in theelection of directors (or similar governingbodies).
          (b) “***Claim***” means (i) any threatened, asserted, pending or completedclaim, demand, action, suit or proceeding, whether civil, criminal,administrative, arbitrative, investigative or other, and whether made pursuantto federal, state or other law, and (ii) any inquiry or investigation, whetherthreatened, asserted, pending or completed, by the Company or any other Person,including without limitation any federal, state or other governmental entity,that Indemnitee determines might lead to the institution of any such claim,demand, action, suit or proceeding. For the avoidance of doubt, the Companyintends indemnity to be provided hereunder in respect of acts or failures toact prior to, on or after the date hereof and apply to any act or failure toact, or claim related thereto, in whole or in part prior to, on or after thedate hereof.
          (c) “***Controlled Affiliate***” means any corporation, limited liabilitycompany, partnership, joint venture, trust or other entity or enterprise,whether or not for profit, that is directly or indirectly controlled by theCompany. For purposes of this definition, “control” means the possession,directly or indirectly, of the power to direct or cause the direction of themanagement or policies of an entity or enterprise, whether through theownership of Voting Stock, through other voting rights, by contract orotherwise; *provided*that direct or indirect Beneficial Ownership of capitalstock or other interests in an entity or enterprise entitling the holder tocast 50% or more of the total number of votes generally entitled to be cast inthe election of directors (or persons performing comparable functions) of suchentity or enterprise will be deemed to constitute control for purposes of thisdefinition.
          (d) “***Disinterested Director***” means a director of the Company who is notand was not a party to the Claim in respect of which indemnification is soughtby Indemnitee.
          (e) “***Expenses***” means attorneys’ and experts’ fees and expenses and allother costs and expenses paid or payable in connection with investigating,defending, being a witness in or participating in (including on appeal), orpreparing to investigate, defend, be a witness in or participate in (includingon appeal), any Claim.
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          (f) “***Indemnifiable Claim***” means any Claim based upon, arising out of orresulting from (i) any threatened, asserted, pending or completed claim,demand, action, suit, proceeding, inquiry or investigation regarding the act orfailure to act by Indemnitee in his or her capacity as a director, officer,employee or agent of the Company or as a director, officer, employee, member,manager, trustee or agent of any other corporation, limited liability company,partnership, joint venture, trust or other entity or enterprise, whether or notfor profit, as to which Indemnitee is or was serving at the request of theCompany as a director, officer, employee, member, manager, trustee or agent,including without limitation any Controlled Affiliate of the Company, (ii) anythreatened, asserted, pending or completed claim, demand, action, suit,proceeding, inquiry or investigation regarding the act or failure to act byIndemnitee in respect of any business, transaction, communication, filing,disclosure or other activity of the Company or any other entity or enterprisereferred to in clause (i) of this sentence, or (iii) Indemnitee’s status as acurrent or former director, officer, employee or agent of the Company or as acurrent or former director, officer, employee, member, manager, trustee oragent of the Company or any other entity or enterprise referred to in clause(i) of this sentence or any actual, alleged or suspected act or failure to actby Indemnitee in connection with any obligation or restriction imposed uponIndemnitee by reason of such status. In addition to any service at the actualrequest of the Company, for purposes of this Agreement, Indemnitee will bedeemed to be serving or to have served at the request of the Company as adirector, officer, employee, member, manager, trustee or agent of anotherentity or enterprise if Indemnitee is or was serving as a director, officer,employee, member, manager, trustee or agent of such entity or enterprise and(i) such entity or enterprise is or at the time of such service was aControlled Affiliate, (ii) such entity or enterprise is or at the time of suchservice was an employee benefit plan (or related trust) sponsored or maintainedby the Company or a Controlled Affiliate, or (iii) the Company or a ControlledAffiliate (by action of the Board, any committee thereof or the Company’s ChiefExecutive Officer (“***CEO***”) (other than as the CEO him- or herself) caused orauthorized Indemnitee to be nominated, elected, appointed, designated,employed, engaged or selected to serve in such capacity.
          (g) “***Indemnifiable Losses***” means any and all Losses relating to, arisingout of or resulting from any Indemnifiable Claim.
          (h) “***Independent Counsel***” means a law firm, or a member of a law firm,that is experienced in matters of corporation law and neither presently is, norin the past five years has been, retained to represent (i) the Company (or anySubsidiary) or Indemnitee in any matter material to either such party (otherthan with respect to matters concerning the Indemnitee under this Agreement, orof other indemnitees under similar indemnification agreements) or (ii) anyother named (or, as to a threatened matter, reasonably likely to be named)party to the Indemnifiable Claim giving rise to a claim for indemnificationhereunder. Notwithstanding the foregoing, the term “Independent Counsel” willnot include any person who, under the applicable standards of professionalconduct then prevailing, would have a conflict of interest in representingeither the Company or Indemnitee in an action to determine Indemnitee’s rightsunder this Agreement.
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          (i) “***Losses***” means any and all Expenses, damages, losses, liabilities,judgments, fines, penalties (whether civil, criminal or other) and amounts paidor payable in settlement, including without limitation all interest,assessments and other charges paid or payable in connection with or in respectof any of the foregoing.
     **2. Indemnification Obligation.**Subject only to Section 7 and to theproviso in this Section, the Company will indemnify, defend and hold harmlessIndemnitee, to the fullest extent permitted or required by the laws of theState of Delaware in effect on the date hereof or as such laws may from time totime hereafter be amended to increase the scope of such permittedindemnification, against any and all Indemnifiable Claims and IndemnifiableLosses; *provided*, *however*, that, except as provided in Sections 4 and 20,Indemnitee will not be entitled to indemnification pursuant to this Agreementin connection with any Claim initiated by Indemnitee against the Company or anydirector or officer of the Company unless the Company has joined in orconsented to the initiation of such Claim. The Company acknowledges that theforegoing obligation is substantially broader than that now provided byapplicable law and the Company’s Constituent Documents and intends that it beinterpreted consistently with this Section and the recitals to this Agreement.
     **3. Advancement of Expenses.**Indemnitee will have the right to advancementby the Company, prior to the final disposition of any Indemnifiable Claim, ofany and all Expenses relating to, arising out of or resulting from anyIndemnifiable Claim paid or incurred by Indemnitee or which Indemniteedetermines are reasonably likely to be paid or incurred by Indemnitee. Withoutlimiting the generality or effect of any other provision hereof, Indemnitee’sright to such advancement is not subject to the satisfaction of any standard ofconduct. Without limiting the generality or effect of the foregoing, withinfive business days after any request by Indemnitee, the Company will, inaccordance with such request (but without duplication), (a) pay such Expenseson behalf of Indemnitee, (b) advance to Indemnitee funds in an amountsufficient to pay such Expenses, or (c) reimburse Indemnitee for such Expenses;*provided*that Indemnitee will repay, without interest, any amounts actuallyadvanced to Indemnitee that, at the final disposition of the IndemnifiableClaim to which the advance related, were in excess of amounts paid or payableby Indemnitee in respect of Expenses relating to, arising out of or resultingfrom such Indemnifiable Claim or in excess of the indemnification to whichIndemnitee is entitled. In connection with any such payment, advancement orreimbursement, at the request of the Company, Indemnitee will, if requested bythe Company, execute and deliver to the Company an undertaking, which need notbe secured and must be accepted without reference to Indemnitee’s ability torepay the Expenses, by or on behalf of the Indemnitee, to repay any amountspaid, advanced or reimbursed by the Company referred to in the precedingsentence.
     **4. Indemnification for Additional Expenses.**Without limiting thegenerality or effect of the foregoing, the Company will indemnify and holdharmless Indemnitee against and, if requested by Indemnitee, will reimburseIndemnitee for, or advance to Indemnitee, within five business days of suchrequest, any and all Expenses paid or incurred by Indemnitee or whichIndemnitee determines are
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reasonably likely to be paid or incurred by Indemnitee in connection withany Claim made, instituted or conducted by Indemnitee for (a) indemnificationor reimbursement or advance payment of Expenses by the Company under anyprovision of this Agreement, or under any other agreement or provision of theConstituent Documents now or hereafter in effect relating to IndemnifiableClaims, and/or (b) recovery under any directors’ and officers’ liabilityinsurance policies maintained by the Company, regardless in each case ofwhether Indemnitee ultimately is determined to be entitled to suchindemnification, reimbursement, advance or insurance recovery, as the case maybe; *provided*, *however*, that Indemnitee must return, without interest, any suchadvance of Expenses (or portion thereof) which remains unspent at the finaldisposition of the Claim to which the advance related.
     **5. Partial Indemnity.**If Indemnitee is entitled under any provision ofthis Agreement to indemnification by the Company for some or a portion of anyIndemnifiable Loss but not for all of the total amount thereof, the Companyshall nevertheless indemnify Indemnitee for the portion thereof to whichIndemnitee is entitled.
     **6. Procedure for Notification**. To obtain indemnification under thisAgreement in respect of an Indemnifiable Claim or Indemnifiable Loss,Indemnitee must submit to the Company a written request therefor, including abrief description (based upon information then available to Indemnitee) of suchIndemnifiable Claim or Indemnifiable Loss. If, at the time of the receipt ofsuch request, the Company has directors’ and officers’ liability insurance ineffect under which coverage for such Indemnifiable Claim or Indemnifiable Lossis potentially available, the Company shall give prompt written notice of suchIndemnifiable Claim or Indemnifiable Loss to the applicable insurers inaccordance with the procedures set forth in the applicable policies. TheCompany will provide to Indemnitee a copy of such notice delivered to theapplicable insurers, and copies of all subsequent correspondence between theCompany and such insurers regarding the Indemnifiable Claim or IndemnifiableLoss, in each case substantially concurrently with the delivery or receiptthereof by the Company. The failure by Indemnitee to timely notify the Companyof any Indemnifiable Claim or Indemnifiable Loss will not relieve the Companyfrom any liability hereunder unless, and only to the extent that, the Companydid not otherwise learn of such Indemnifiable Claim or Indemnifiable Loss andsuch failure results in forfeiture by the Company of substantial defenses,rights or insurance coverage.
     **7. Determination of Right to Indemnification**. (a) To the extent thatIndemnitee is successful on the merits or otherwise in defense of anyIndemnifiable Claim or any portion thereof or in defense of any issue or mattertherein, including without limitation dismissal without prejudice, Indemniteewill be indemnified against all Indemnifiable Losses relating to, arising outof or resulting from such Indemnifiable Claim in accordance with Section 2 andno Standard of Conduct Determination will be required. Without limiting thegenerality or effect of the foregoing, any Claim that is settled in whole or inpart or withdrawn will be deemed to be subject to this Section 7(a), unless theindemnification would be inconsistent with any condition with respect toindemnification expressly imposed by the court in approving the settlement.
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          (b) To the extent that the provisions of Section 7(a) are inapplicable toan Indemnifiable Claim that has been finally disposed of, any determination ofwhether Indemnitee has satisfied any applicable standard of conduct underDelaware law that is a legally required condition precedent to indemnificationof Indemnitee hereunder against Indemnifiable Losses relating to, arising outof or resulting from such Indemnifiable Claim (a “***Standard of ConductDetermination***”) will be made as follows: (i) if a Change in Control has notoccurred, or if a Change in Control has occurred but Indemnitee has requestedthat the Standard of Conduct Determination be made pursuant to this clause (i),(A) by a majority vote of the Disinterested Directors, even if less than aquorum of the Board, (B) if such Disinterested Directors so direct, by amajority vote of a committee of Disinterested Directors designated by amajority vote of all Disinterested Directors, (C) if there are no suchDisinterested Directors, by Independent Counsel in a written opinion addressedto the Board, a copy of which must be delivered to Indemnitee, or (D) by actionof the Company’s stockholders; and (ii) if a Change in Control has occurred andIndemnitee has not requested that the Standard of Conduct Determination be madepursuant to clause (i), by Independent Counsel in a written opinion addressedto the Board, a copy of which must be delivered to Indemnitee. Upon reasonableadvance request, Indemnitee will cooperate with reasonable requests of theindividual or firm making such Standard of Conduct Determination, including byproviding to such Person documentation or information which is not privilegedor otherwise protected from disclosure and which is reasonably available toIndemnitee and reasonably necessary to such determination without incurring anyunreimbursed cost in connection therewith. The Company will indemnify and holdharmless Indemnitee against and, if requested by Indemnitee, will reimburseIndemnitee for, or advance to Indemnitee, within five business days of suchrequest, any and all costs and expenses (including attorneys’ and experts’ feesand expenses) incurred by Indemnitee in so cooperating with the Person makingsuch Standard of Conduct Determination.
          (c) The Company will use its best efforts to cause any Standard of ConductDetermination required under Section 7(b) to be made as promptly aspracticable. If (i) the Persons empowered or selected under Section 7 to makethe Standard of Conduct Determination do not make a determination (x) within 30calendar days after the later of (A) receipt by the Company of written noticefrom Indemnitee advising the Company of the final disposition of the applicableIndemnifiable Claim (the date of such receipt being the “***Notification Date***”)and (B) the selection of an Independent Counsel, if such determination is to bemade by Independent Counsel, that is permitted under the provisions of Section7(e) to make such determination or (y) if such determination is to be made bythe Company’s stockholders, within 180 calendar days after the NotificationDate, and (ii) Indemnitee has fulfilled his/her obligations set forth in thesecond sentence of Section 7(b), then Indemnitee will be deemed to havesatisfied the applicable standard of conduct; *provided*that such applicableperiod may be extended for a reasonable time, not to exceed an additional 30calendar days, if the Person making such determination in good faith requiressuch additional time for the obtaining or evaluation or documentation and/orinformation relating thereto.
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          (d) If (i) Indemnitee is entitled to indemnification hereunder against anyIndemnifiable Losses pursuant to Section 7(a), (ii) no determination of whetherIndemnitee has satisfied any applicable standard of conduct under Delaware lawis a legally required condition precedent to indemnification of Indemniteehereunder against any Indemnifiable Losses, or (iii) Indemnitee has beendetermined or deemed pursuant to Section 7(b) or (c) to have satisfied anyapplicable standard of conduct under Delaware law which is a legally requiredcondition precedent to indemnification of Indemnitee hereunder against anyIndemnifiable Losses, then the Company will pay to Indemnitee, within fivebusiness days after the later of (x) the Notification Date in respect of theIndemnifiable Claim or portion thereof to which such Indemnifiable Losses arerelated, out of which such Indemnifiable Losses arose or from which suchIndemnifiable Losses resulted and (y) the earliest date on which the applicablecriterion specified in clause (i), (ii) or (iii) above have been satisfied, anamount equal to the amount of such Indemnifiable Losses.
          (e) If a Standard of Conduct Determination is required to be, but has notbeen, made by Independent Counsel pursuant to Section 7(b)(i), the IndependentCounsel will be selected by the Board or a committee of the Board, and theCompany will give written notice to Indemnitee advising him or her of theidentity of the Independent Counsel so selected. If a Standard of ConductDetermination is required to be, or to have been, made by Independent Counselpursuant to Section 7(b)(ii), the Independent Counsel will be selected byIndemnitee, and Indemnitee will give written notice to the Company advising itof the identity of the Independent Counsel so selected. In either case,Indemnitee or the Company, as applicable, may, within five business days afterreceiving written notice of selection from the other, deliver to the other awritten objection to such selection; *provided*, *however*, that such objection maybe asserted only on the ground that the Independent Counsel so selected doesnot satisfy the criteria set forth in the definition of “Independent Counsel”in Section 1(h), and the objection must set forth with particularity thefactual basis of such assertion. Absent a proper and timely objection, thePerson so selected will act as Independent Counsel. If such written objectionis properly and timely made and substantiated, (i) the Independent Counsel soselected may not serve as Independent Counsel unless and until such objectionis withdrawn or a court has determined that such objection is without merit and(ii) the non-objecting party may, at its option, select an alternativeIndependent Counsel and give written notice to the other party advising suchother party of the identity of the alternative Independent Counsel so selected,in which case the provisions of the two immediately preceding sentences andclause (i) of this sentence will apply to such subsequent selection and notice.If applicable, the provisions of clause (ii) of the immediately precedingsentence will apply to successive alternative selections. If no IndependentCounsel that is permitted under the foregoing provisions of this Section 7(e)to make the Standard of Conduct Determination has been selected within 30calendar days after the Company gives its initial notice pursuant to the firstsentence of this Section 7(e) or Indemnitee gives its initial notice pursuantto the second sentence of this Section 7(e), as the case may be, either theCompany or Indemnitee may petition the Chancery Court of the State of Delawarefor resolution of any objection which has been made by the Company orIndemnitee to the other’s selection of Independent Counsel and/or for theappointment as Independent Counsel of a
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person or firm selected by the Court or by such other person as the Courtmay designate, and the person or firm with respect to whom all objections areso resolved or the person or firm so appointed will act as Independent Counsel.In all events, the Company will pay all of the reasonable fees and expenses ofthe Independent Counsel incurred in connection with the Independent Counsel’sdetermination pursuant to Section 7(b).
     **8. Presumption of Entitlement.**Notwithstanding any other provisionhereof, in making any Standard of Conduct Determination, the Person making suchdetermination must presume that Indemnitee has satisfied the applicablestandard of conduct, and the Person may overcome such presumption only by itsadducing clear and convincing evidence to the contrary. Any Standard ofConduct Determination that is adverse to Indemnitee may be challenged by theIndemnitee in the Chancery Court of the State of Delaware. No determination bythe Company (including by its directors, stockholders or any IndependentCounsel) that Indemnitee has not satisfied any applicable standard of conductwill be a defense to any Claim by Indemnitee for indemnification orreimbursement or advance payment of Expenses by the Company hereunder or createa presumption that Indemnitee has not met any applicable standard of conduct.
     **9. No Negative Presumption.**For purposes of this Agreement, thetermination of any Claim by judgment, order, settlement (whether with orwithout court approval) or conviction, or upon a plea of *nolo contendere*or itsequivalent, will not create a presumption that Indemnitee did not meet anyapplicable standard of conduct or that indemnification hereunder is otherwisenot permitted.
     **10. Non-Exclusivity.**The rights of Indemnitee hereunder will be inaddition to any other rights Indemnitee may have under the ConstituentDocuments, or the substantive laws of Delaware, any other contract or otherwise(collectively, “***Other Indemnity Provisions***”); *provided*, *however*, that (a) tothe extent that Indemnitee otherwise would have any greater right toindemnification under any Other Indemnity Provision, Indemnitee will withoutfurther action be deemed to have such greater right hereunder, (b) to theextent that any change is made to any Other Indemnity Provision which permitsany greater right to indemnification than that provided under this Agreement asof the date hereof, Indemnitee will without further action be deemed to havesuch greater right hereunder, and (c) in no event will Indemnitee be entitledto indemnity hereunder to the extent that he/she has been actually indemnifiedunder any Other Indemnity Provision (but the existence of such Other IndemnityProvisions will not affect any right hereunder). The Company may not adopt anyamendment to any of the Constituent Documents the effect of which would be todeny, diminish or encumber Indemnitee’s right to indemnification under thisAgreement or any Other Indemnity Provision.
     **11. Liability Insurance and Funding.**For the duration of Indemnitee’sservice as a director and/or officer of the Company and for not less than sixyears thereafter, the Company will cause to be maintained in effect policies ofdirectors’ and officers’ liability insurance providing coverage for directorsand/or officers of the Company that is at least as favorable in scope andamount to that provided by the Company’s current policies of directors’ andofficers’ liability insurance. Upon
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request, the Company will provide Indemnitee or his or her counsel with acopy of all directors’ and officers’ liability insurance applications, binders,policies, declarations, endorsements and other related materials, and willprovide Indemnitee with a reasonable opportunity to review and comment on thesame. Without limiting the generality or effect of the two immediatelypreceding sentences, the Company will not discontinue or significantly reducethe scope or amount of coverage from one policy period to the next (i) withoutthe prior approval thereof by a majority vote of the Incumbent Directors, evenif less than a quorum, or (ii) if at the time that any such discontinuation orsignificant reduction in the scope or amount of coverage is proposed there areno Incumbent Directors, without the prior written consent of Indemnitee in hisor her sole discretion. In all policies of directors’ and officers’ liabilityinsurance obtained by the Company, Indemnitee will be named as an insured insuch a manner as to provide Indemnitee the same rights and benefits, subject tothe same limitations, as are accorded to the Company’s directors and officersmost favorably insured by such policy. Notwithstanding the foregoing, (i) theCompany may, but will not be required to, create a trust fund, grant a securityinterest or use other means, including without limitation a letter of credit,to ensure the payment of such amounts as may be necessary to satisfy itsobligations to indemnify and advance expenses pursuant to this Agreement and(ii) in renewing or seeking to renew any insurance hereunder, the Company willnot be required to expend more than two times the premium amount of theimmediately preceding policy period (equitably adjusted if necessary to reflectdifferences in policy periods).
     **12. Subrogation.**In the event of payment under this Agreement, theCompany will be subrogated to the extent of such payment to all of the relatedrights of recovery of Indemnitee against other Persons (other than Indemnitee’ssuccessors), including any entity or enterprise referred to in clause (i) ofthe definition of “Indemnifiable Claim” in Section 1(f). Indemnitee willexecute all papers reasonably required to evidence such rights (all ofIndemnitee’s reasonable Expenses, including attorneys’ fees and charges,related thereto to be reimbursed by or, at the option of Indemnitee, advancedby the Company).
     **13. No Duplication of Payments.**The Company will not be liable under thisAgreement to make any payment to Indemnitee in respect of any IndemnifiableLosses to the extent Indemnitee has otherwise already actually received payment(net of Expenses incurred in connection therewith) under any insurance policy,the Constituent Documents or the Other Indemnity Provisions or otherwise(including from any entity or enterprise referred to in clause (i) of thedefinition of “Indemnifiable Claim” in Section 1(f)) in respect of suchIndemnifiable Losses otherwise indemnifiable hereunder.
     **14. Defense of Claims.**The Company will be entitled to participate in thedefense of any Indemnifiable Claim or to assume the defense thereof withcounsel reasonably satisfactory to the Indemnitee; *provided*that if Indemniteedetermines, after consultation with counsel selected by Indemnitee, that (a)the use of counsel chosen by the Company to represent Indemnitee would presentsuch counsel with an actual or potential conflict, (b) the named parties in anysuch Indemnifiable Claim (including any impleaded parties) include both theCompany and Indemnitee and Indemnitee concludes that there may be one or morelegal
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defenses available to him or her that are different from or in addition tothose available to the Company, (c) any such representation by such counselwould be precluded under the applicable standards of professional conduct thenprevailing, or (d) Indemnitee has interests in the claim or underlying subjectmatter that are different from or in addition to those of other Persons againstwhom the Claim has been made or might reasonably be expected to be made, thenIndemnitee will be entitled to retain separate counsel (but not more than onelaw firm plus, if applicable, local counsel in respect of any particularIndemnifiable Claim for all indemnitees in Indemnitee’s circumstances) at theCompany’s expense. The Company will not be liable to Indemnitee under thisAgreement for any amounts paid in settlement of any threatened or pendingIndemnifiable Claim effected without the Company’s prior written consent. TheCompany will not, without the prior written consent of the Indemnitee, effectany settlement of any threatened or pending Indemnifiable Claim which theIndemnitee is or could have been a party unless such settlement solely involvesthe payment of money and includes a complete and unconditional release of theIndemnitee from all liability on any claims that are the subject matter of suchIndemnifiable Claim. Neither the Company nor Indemnitee will unreasonablywithhold its consent to any proposed settlement; *provided*that Indemnitee maywithhold consent to any settlement that does not provide a complete andunconditional release of Indemnitee.
     **15. Successors and Binding Agreement.**(a) The Company will require anysuccessor (whether direct or indirect, by purchase, merger, consolidation,reorganization or otherwise) to all or substantially all of the business orassets of the Company, by agreement in form and substance satisfactory toIndemnitee and its counsel, expressly to assume and agree to perform thisAgreement in the same manner and to the same extent the Company would berequired to perform if no such succession had taken place. This Agreement willbe binding upon and inure to the benefit of the Company and any successor tothe Company, including without limitation any Person acquiring directly orindirectly all or substantially all of the business or assets of the Companywhether by purchase, merger, consolidation, reorganization or otherwise (andsuch successor will thereafter be deemed the “***Company***” for purposes of thisAgreement), but will not otherwise be assignable or delegatable by the Company.
          (b) This Agreement will inure to the benefit of and be enforceable by theIndemnitee’s personal or legal representatives, executors, administrators,heirs, distributees, legatees and other successors.
          (c) This Agreement is personal in nature and neither of the parties heretowill, without the consent of the other, assign or delegate this Agreement orany rights or obligations hereunder except as expressly provided in Sections15(a) and 15(b). Without limiting the generality or effect of the foregoing,Indemnitee’s right to receive payments hereunder will not be assignable,whether by pledge, creation of a security interest or otherwise, other than bya transfer by the Indemnitee’s will or by the laws of descent and distribution,and, in the event of any attempted assignment or transfer contrary to thisSection 15(c), the Company will have no liability to pay any amount soattempted to be assigned or transferred.
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     **16. Notices.**For all purposes of this Agreement, all communications,including without limitation notices, consents, requests or approvals, requiredor permitted to be given hereunder must be in writing and will be deemed tohave been duly given when hand delivered or dispatched by electronic facsimiletransmission (with receipt thereof orally confirmed), or one business day afterhaving been sent for next-day delivery by a nationally recognized overnightcourier service, addressed to the Company (to the attention of the GeneralCounsel of the Company) and to Indemnitee at the applicable address shown onthe signature page hereto, or to such other address as any party may havefurnished to the other in writing and in accordance herewith, except thatnotices of changes of address will be effective only upon receipt.
     **17. Governing Law.**The validity, interpretation, construction andperformance of this Agreement will be governed by and construed in accordancewith the substantive laws of the State of Delaware, without giving effect tothe principles of conflict of laws of such State. The Company and Indemniteeeach hereby irrevocably consents to the jurisdiction of the Chancery Court ofthe State of Delaware for all purposes in connection with any action orproceeding which arises out of or relates to this Agreement, waive allprocedural objections to suit in that jurisdiction, including withoutlimitation objections as to venue or inconvenience, agree that service in anysuch action may be made by notice given in accordance with Section 16 and alsoagree that any action instituted under this Agreement will be brought only inthe Chancery Court of the State of Delaware.
     **18. Validity.**If any provision of this Agreement or the application ofany provision hereof to any Person or circumstance is held invalid,unenforceable or otherwise illegal, the remainder of this Agreement and theapplication of such provision to any other Person or circumstance will not beaffected, and the provision so held to be invalid, unenforceable or otherwiseillegal will be reformed to the extent, and only to the extent, necessary tomake it valid, enforceable or legal. In the event that any court or otheradjudicative body declines to reform any provision of this Agreement held to beinvalid, unenforceable or otherwise illegal as contemplated by the immediatelypreceding sentence, the parties thereto will take all such action as may benecessary or appropriate to replace the provision so held to be invalid,unenforceable or otherwise illegal with one or more alternative provisions thateffectuate the purpose and intent of the original provisions of this Agreementas fully as possible without being invalid, unenforceable or otherwise illegal.
     **19. Miscellaneous.**No provision of this Agreement may be waived, modifiedor discharged unless such waiver, modification or discharge is agreed to inwriting signed by Indemnitee and the Company. No waiver by either party heretoat any time of any breach by the other party hereto or compliance with anycondition or provision of this Agreement to be performed by such other partywill be deemed a waiver of similar or dissimilar provisions or conditions atthe same or at any prior or subsequent time. No agreements or representations,oral or otherwise, expressed or implied with respect to the subject matterhereof have been made by either party that are not set forth expressly in thisAgreement.
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     **20. Legal Fees and Expenses.**It is the intent of the Company thatIndemnitee not be required to incur legal fees or other Expenses associatedwith the interpretation, enforcement or defense of Indemnitee’s rights underthis Agreement by litigation or otherwise because the cost and expense thereofwould substantially detract from the benefits intended to be extended toIndemnitee hereunder. Accordingly, without limiting the generality or effectof any other provision hereof, if it should appear to Indemnitee that theCompany has failed to comply with any of its obligations under this Agreementor in the event that the Company or any other Person takes or threatens to takeany action to declare this Agreement void or unenforceable, or institutes anylitigation or other action or proceeding designed to deny, or to recover from,Indemnitee the benefits provided or intended to be provided to Indemniteehereunder, the Company irrevocably authorizes the Indemnitee from time to timeto retain counsel of Indemnitee’s choice, at the expense of the Company ashereafter provided, to advise and represent Indemnitee in connection with anysuch interpretation, enforcement or defense, including without limitation theinitiation or defense of any litigation or other legal action, whether by oragainst the Company or any director, officer, stockholder or other Personaffiliated with the Company, in any jurisdiction. Notwithstanding any existingor prior attorney-client relationship between the Company and such counsel, theCompany irrevocably consents to Indemnitee’s entering into an attorney-clientrelationship with such counsel, and in that connection the Company andIndemnitee agree that a confidential relationship will exist between Indemniteeand such counsel. Without limiting the generality or effect of any otherprovision hereof, and without regard to whether Indemnitee prevails, in wholeor in part, in connection with any of the foregoing, the Company will pay andbe solely financially responsible for any and all attorneys’ and related feesand expenses incurred by Indemnitee in connection with any of the foregoing.
     **21. Certain Interpretive Matters.**Unless the context of this Agreementotherwise requires, (i) “it” or “its” or words of any gender include each othergender, (ii) words using the singular or plural number also include the pluralor singular number, respectively, (iii) the terms “hereof,” “herein,” “hereby”and derivative or similar words refer to this entire Agreement, (iv) the term“Section” refers to the specified Section of this Agreement, (v) the terms“include,” “includes” and “including” will be deemed to be followed by thewords “without limitation” (whether or not so expressed), and (vi) the word“or” is disjunctive but not exclusive. Whenever this Agreement refers to anumber of days, such number will refer to calendar days unless business daysare specified and whenever action must be taken (including the giving of noticeor the delivery of documents) under this Agreement during a certain period oftime or by a particular date that ends or occurs on a non-business day, thensuch period or date will be extended until the immediately following businessday. As used herein, “business day” means any day other than Saturday, Sundayor a United States federal holiday.
     **22. Entire Agreement**. Subject to Section 10, this Agreement, theConstituent Documents and the Other Indemnity Provisions constitute the entireagreement and supersede all prior agreements and understandings, both writtenand oral, between the parties hereto with respect to the subject matter of thisAgreement. Any prior agreements or understandings between the parties hereto
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with respect to indemnification are hereby terminated and of no furtherforce or effect.
     **23. Counterparts.**This Agreement may be executed in one or morecounterparts, each of which will be deemed to be an original but all of whichtogether will constitute one and the same agreement.
*[Signatures Appear On Following Page]*
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     IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused itsduly authorized representative to execute this Agreement as of the date setforth below.          NEXTEL COMMUNICATIONS, INC.          By:             Name:            Title:                   INDEMNITEE                Print Name:                   Notice Address:   2001 Edmund Halley Drive   Reston, VA 20191   Facsimile No.:          Dated:   
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