EMPLOYMENT AGREEMENT
Exhibit 10.2(a)
This EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of March 31,
2005, by and between MetroPCS Texas, LLC, a Delaware limited liability company (the
“Company”), and J. Xxxxxxx Xxxxxx, an individual
(“Executive”).
RECITALS
WHEREAS, Executive has been employed by the Company since February 1, 2001 as Vice
President of Corporate Operations; and
WHEREAS, the Company desires to employ Executive as its Senior Vice President and
Chief Financial Officer and the Company and Executive desire to specify the terms and
conditions with respect to Executive’s employment; and
WHEREAS, the Company and Executive have determined that it is in their respective
best interests to enter into this Agreement on the terms and conditions as set forth
below.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the respective covenants and
promises contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties, intending to be legally
bound, hereby agree as follows:
1. DEFINITIONS. In addition to the capitalized terms defined elsewhere
herein, the following definitions shall be in effect under this Agreement:
1.1
“Board” means the Board of Directors of MetroPCS Communications, Inc. or the
Compensation Committee thereof (or any other committee subsequently granted authority by
the Board), subject to Section 6.5 below.
1.2 “Cause” means (i) the commission of any act of (a) dishonesty, fraud,
misrepresentation, misappropriation or embezzlement or (b) any intentional act of
dishonesty or
misrepresentation by Executive involving the Company; (ii) Executive’s
intentional,
unauthorized use or disclosure of any confidential, proprietary information or trade
secrets of the
Company, including Executive’s material breach of that certain Employee Trade Secret
and
Confidential Information Agreement between the Company and Executive attached hereto
as
Exhibit A (the “Confidentiality
Agreement”); (iii) any violation by Executive
of a law or
regulation applicable to the Company’s business, which violation, in the reasonable
judgment of
the Board, does or is reasonably likely to cause material injury to the Company; (iv)
Executive’s
indictment, conviction of, or plea of nolo contendere or guilty to (a) a felony or
(b) any other
crime which involves moral turpitude; (v) gross negligence or willful misconduct in
the
performance of Executive’s duties; (vi) Executive’s violation of a Company policy
and/or code
of ethics where such violation, in the reasonable judgment of the Board, has or is
reasonably
| EMPLOYMENT AGREEMENT | PAGE 1 |
likely to have, a material adverse affect on the Company; or (vii) a material
and willful breach of Executive’s fiduciary duties to the Company.
2. TERM AND DUTIES.
2.1 Term. The Company hereby agrees to employ Executive as its Senior
Vice President and Chief Financial Officer, and Executive hereby accepts such
position for a term commencing as of March 31, 2005 and ending on March 30, 2007
(the “Term”), unless terminated earlier pursuant to Section 2.5 below.
Thereafter, this Agreement may be renewed on such terms to which the parties may
agree and which shall be subject to Board approval. Except as otherwise provided
herein, this Agreement, and attached exhibits, supersede and terminate any and all
prior agreements, discussions and writings between Executive and any employee or
representative of the Company concerning and/or relating to Executive’s employment.
2.2 Position. Executive shall serve as Senior Vice President and
Chief Financial Officer and shall report directly to the Chief Executive Officer.
At the Company’s request, Executive shall also perform services for the Company’s
subsidiaries and affiliates that are consistent with Executive’s duties under
Section 2.3.
2.3 Duties. Executive shall have the authority and perform the
duties customarily associated with his title and office, together with such
additional duties of a company officer nature and commensurate with Executive’s
title as may from time to time be assigned by the Chief Executive Officer. During
the term of Executive’s employment under this Agreement, Executive shall devote his
full working time and best efforts to the performance of his duties and the
furtherance of the interests of the Company.
2.4 Compensation and Benefits.
2.4.1 Base Salary. In consideration of the services rendered to the
Company hereunder by Executive, the Company shall pay Executive a base salary of TWO
HUNDRED SEVENTY-FIVE THOUSAND DOLLARS AND NO/100 ($275,000.00) per year, less
applicable lawful deductions and withholdings (the “Base Salary”). The Base Salary
will be paid in accordance with the Company’s regular payroll practices as presently
in effect and amended from time to time. The Company will review Executive’s Base
Salary at least annually for merit-based and other normal increases in accordance
with Company policy and, by action of its Board or the Compensation Committee, may
increase Executive’s Base Salary at any time and from time to time during the Term.
2.4.2 Bonus. Executive shall be eligible to receive an annual bonus as
provided under the Company’s 2005 Bonus Opportunity Plan — Grade I SVP/CFO (the
“Bonus Plan”), which may be amended from time to time at the sole discretion of the
Board or the Compensation Committee.
2.4.3 Benefits. In addition to the Base Salary, Executive shall be
eligible to receive the following:
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(i) Vacation, Sick Leave and Holidays. Executive
shall be
entitled to paid vacation benefits, sick leave and holidays in accordance with
applicable Company policies, as presently in effect and amended from time to time.
(ii) Employee Benefits. Executive and his spouse and
eligible
dependents, if any, and their respective designated beneficiaries where
applicable, shall be eligible for and entitled to participate in other benefits
maintained by the Company for its senior executive officers in accordance with
applicable Company policies and the terms of the applicable benefit plans as
presently in effect and amended from time to time, such as, without limitation,
any medical, dental, 401(k), accident, disability, and life insurance benefits.
(iii) Expenses. The Company shall pay or reimburse
Executive
for all reasonable out-of-pocket expenses actually incurred by Executive in
the performance of Executive’s services under this Agreement, provided he properly
accounts for such expenses in accordance with Company policy as presently in effect
and amended from time to time.
(iv) D&O Insurance Coverage and Indemnification
Obligations.
Executive shall be entitled to director and officer insurance and indemnification
coverage for his acts and omissions while an officer and director of the Company
and its affiliates on a basis no less favorable to him than the coverage provided
to all other similarly situated officers and directors.
2.4.4 Stock Options. Executive shall be eligible to participate in
stock option plans as may be adopted by the Board from time to time at the sole
discretion of the Board.
2.4.5 Non-Periodic Stock Award. Effective upon the execution of this
Agreement, the Company shall grant to Executive a non-periodic stock award of
20,000 shares (post split) pursuant to the strike equal to the fair market value of
MetroPCS Communications, Inc.’s common stock as of March 31, 2005, once determined.
2.5
TERMINATION.
2.5.1 Termination For Cause. The Company may terminate
Executive’s employment for Cause. Such termination shall be communicated by the
delivery of a notice of termination to Executive in accordance with Section 6.1 that
specifies in reasonable detail the grounds for such termination and shall be
effective as of the date of delivery of the notice of termination. Executive shall
have no right to receive any compensation or benefits on and after the effective
date of such termination other than (A) Executive’s Base Salary then earned but
unpaid, (B) bonus, if any, pursuant to the terms of the Company’s Bonus Plan; (C)
vested benefits, if any, under any employee benefit plan applicable to Executive;
(D) any other benefits earned, accrued and unpaid prior to the date of termination;
and (E) reimbursement for expenses, if any, incurred prior to the date of
termination. In addition, all vesting of unvested stock options, if any, shall
immediately cease as of the date of the termination, and Executive may exercise any
vested stock options in accordance with the 1995 Plan.
2.5.2 Termination Without Cause. The Company may terminate
Executive’s employment without Cause effective upon giving notice to
Executive. If
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Executive’s employment is terminated without Cause, then (i) the Company’s
obligations under this Agreement shall immediately cease, (ii) all vesting of unvested
stock options, if any, shall immediately cease as of the date of the termination and
Executive may exercise any vested stock options in accordance with the 1995 Plan, and
(iii) Executive shall be entitled to receive payment of the aggregate amount of (A)
Executive’s Base Salary then earned but unpaid; (B) bonus, if any, pursuant to the terms
of the Company’s Bonus Plan; (C) vested benefits, if any, under any employee benefit plan
applicable to Executive; (D) any other benefits earned, accrued, and unpaid prior to the
date of termination; and (E) unreimbursed expenses, if any, incurred by Executive as of
the date of such termination. In addition, subject to Executive’s execution of a general
release of and covenant not to xxx the Company and related parties substantially in the
form attached hereto as Exhibit B (the “General Release”), Executive shall be
entitled to receive the following severance:
(i) Severance Pay: A total of the Executive’s Base
Salary and
bonus paid at target performance for the remainder of the Term of this Agreement
plus twelve (12) months, all of which shall be less lawful deductions, and an
additional sum equivalent to COBRA premiums for the remainder of the Term of this
Agreement plus twelve (12) months for those COBRA benefits in which Executive is
participating at the time of the termination grossed up for federal income taxes, less
lawful deductions. Such payment shall be paid to Executive in a lump sum and shall
commence only in accordance with the terms of the General Release; and
(ii) Extension of Stock Options. An extension of the
deadline
for the exercise of Executive’s vested stock options (the
“Option Extension”) until 5:00
p.m. (Central Time) on the 60th day after the first date on which both (i) the
common stock of MetroPCS Communications, Inc. is listed on any Stock Exchange (as such
term is defined in MetroPCS Communications, Inc.’s Second Amended and Restated Stock
Option Plan (the “1995 Plan” )) or is quoted on the Nasdaq National Market System and (ii)
any lock-up or similar contractual obligation prohibiting Executive from transferring his
vested Option Shares (as such term is defined in the 1995 Plan) shall have expired;
provided, however, that in no event shall the Option Extension with respect to any
particular option extend beyond the stated term of such option as set forth in the option
agreement or other documentation relating to such option.
2.5.3 Termination For Good Reason; Non-Renewal. Executive may terminate
Executive’s employment voluntarily, for Good Reason, which is not cured by the Company
within thirty (30) days after written notice from Executive to the Company (or to the
Audit Committee in the case of a disagreement under Section 2.5.3(ii)) setting
forth the circumstances constituting Good Reason. For purposes of this Agreement, “Good
Reason” shall mean any of the following actions, omissions or events occurring without
Executive’s prior written consent:
(i) The assignment to Executive of any duties,
responsibilities,
or reporting requirements materially inconsistent with his position as Senior Vice
President and Chief Financial Officer. Notwithstanding anything contained herein to the
contrary, Executive agrees that, so long as Executive has not had a disagreement with the
Board or principal executive officer concerning accounting or regulatory matters that has
not been resolved to the reasonable satisfaction of Executive, a reassignment to his
former position as Vice President of Corporate Operations at any time at the sole
discretion of the Board (with the title of “Senior
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Vice President of Corporate Operations” and pay equal to the base salary Executive is
being paid at the time of the reassignment and a bonus target incentive of 55% as provided
under the Company’s Bonus Plan) is neither Good Reason for Executive to resign nor a basis
for any legal action against the Company;
(ii) a material disagreement between the Board and Executive
concerning accounting or regulatory matters which has not been resolved to the reasonable
satisfaction of Executive;
(iii) the Company or its affiliates shall fail to maintain any
coverage to Executive or fails to provide the same coverage as other officers and directors
of the Company under a director and officer insurance policy or policies or indemnification
policy or policies that provides Executive with coverage for his acts and omissions
occurring while Executive is an officer or director of the Company;
(iv) the Company shall relocate its principal executive offices
to a location outside Dallas County or any county contiguous thereto or shall require
Executive to relocate to an office outside Dallas County or any other County contiguous
thereto; or
(v) any material breach of the Agreement by the Company.
If Executive terminates Executive’s employment for Good Reason, or Executive and
the Board fail to renew this Agreement on substantially similar terms, then (i) the
Company’s obligations under this Agreement shall immediately cease, (ii) all vesting of
vested stock options, if any, shall immediately cease as of the date of the termination, and
(iii) Executive shall be entitled to receive payment of the aggregate amount of (A)
Executive’s Base Salary then earned but unpaid; (B) bonus, if any, pursuant to the terms of
the Company’s Bonus Plan; (C) vested benefits, if any, under any employee benefit plan
applicable to Executive; (D) any other benefits earned, accrued, and unpaid prior to the
date of termination; and (E) unreimbursed expenses, if any, incurred by Executive as of the
date of such termination. In addition, subject to Executive’s execution of a General
Release, Executive shall be entitled to severance and the Option Extension, each as provided
in Section 2.5.2 hereof, if Executive resigns for Good Reason. If Executive and the Board
fail to renew this Agreement on substantially similar terms, and subject to Executive’s
execution of a General Release substantially in the form attached hereto as Exhibit
B, Executive shall be entitled to the following severance: (i) an extension of the time
to exercise vested stock options in accordance with and subject to the express terms of
Section 2.5.2 hereof; (ii) a total of 12 months of Executive’s Base Salary and bonus
paid at target performance, less lawful deductions, and Executive may exercise vested stock
options in accordance with the 1995 Plan; and (iii) an additional sum equivalent to COBRA
premiums for 12 months for those COBRA benefits in which Executive is participating at the
time of the termination grossed up for federal income taxes, less lawful deductions, Such
payment shall be paid to Executive in a lump sum and shall commence only in accordance with
the terms of the General Release.
2.5.4
Termination Without Good Reason. If Executive terminates Executive’s
employment without Good Reason, then (i) the Company’s obligations under this Agreement and
other agreements, if any, with Executive shall immediately cease, (ii) all vesting
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of vested stock options, if any, shall immediately cease as of the date of the
termination and Executive may exercise any vested stock options in accordance with the
1995 Plan; and (iii) Executive shall be entitled to receive payment of the aggregate
amount of (A) Executive’s Base Salary then earned but unpaid; (B) bonus, if any,
pursuant to the terms of the Company’s Bonus Plan; (C) vested benefits, if any, under
any employee benefit plan applicable to Executive; (D) any other benefits earned,
accrued, and unpaid prior to the date of termination; and (E) unreimbursed expenses, if
any, incurred by Executive as of the date of such termination.
2.5.5
WARN Act Offset. In the event that Executive’s termination without
Cause is covered by the Worker Adjustment and Retraining Notification Act or similar state
law (“WARN”) at the time of Executive’s termination, or is deemed to be covered by WARN
retrospectively within 90 days after Executive’s termination, the amount of any severance
payments Executive may be entitled to receive as set forth in Sections 2.5.2 and
2.5.3 shall be reduced by an amount equal to any pay Executive receives during any
portion of WARN’s notice period.
2.5.6
Termination of Authority. Immediately upon the termination of this
Agreement and/or Executive assuming another position with the Company, Executive agrees to
relinquish all authority commensurate with the position of Senior Vice President and Chief
Financial Officer and shall resign from all Boards of Directors of MetroPCS
Communications, Inc. and it subsidiaries and, if applicable, all officer positions.
2.5.7
No Mitigation. Executive will not be required to mitigate the amount
of any payment provided for in Section 2.5 by seeking other employment or
otherwise, provided Executive executes the General Release.
3. PROTECTION
OF COMPANY’S PROPRIETARY INFORMATION.
Executive acknowledges that he has read and will comply with the provisions of the
Confidentiality Agreement attached hereto as Exhibit A. Executive understands
and agrees that he will continue to be bound by the Confidentiality Agreement and that
the Confidentiality Agreement survives the termination of this Agreement and/or
Executive assuming another position with the Company and/or the termination of
Executive’s employment with the Company.
4. REPRESENTATIONS
AND WARRANTIES BY EXECUTIVE. Executive represents and
warrants to the Company that (i) this Agreement is valid and binding upon and enforceable
against him, his heirs, estates, and beneficiaries in accordance with its terms, (ii)
Executive is not bound by or subject to any contractual or other obligation that would be
violated by his execution or performance of this Agreement, including, but not limited to,
any non-competition agreement presently in, effect, and (iii) Executive is not subject to
any pending or, to Executive’s knowledge, threatened claim, action, judgment, order, or
investigation that could adversely affect his ability to perform his obligations under
this Agreement or the business reputation of the Company. Executive has not entered into,
and agrees that he will not enter into, any agreement either written or oral in conflict
with this Agreement.
5. COOPERATION
IN FUTURE MATTERS. Executive agrees that following his
termination of employment, he shall cooperate, at the Company’s Expense, with the
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Company’s reasonable requests relating to matters that pertain to Executive’s
employment by the Company, including, without limitation, providing
non-attorney/client privileged information or limited consultation as to such
matters, participating in legal proceedings, investigations or audits on behalf of
the Company, or otherwise making himself reasonably available to the Company, at the
Company’s expense, for other related purposes. Provided such work is timely performed
given the exigencies of the matter, any such cooperation shall be performed at times
scheduled taking into consideration Executive’s other commitments, including business
and family matters.
6. MISCELLANEOUS.
6.1
Notices. All notices, requests, and other communications hereunder
must be in writing and will be deemed to have been duly given only if (i) delivered
personally against written receipt, (ii) delivered by facsimile transmission with
answer back confirmation, (iii) mailed (postage prepaid by certified or registered
mail, return receipt requested), or (iv) delivered by reputable overnight courier to
the parties:
| If to Executive, to: | ||||||
| J. Xxxxxxx Xxxxxx | ||||||
| 0000 Xxxxxx Xxxxxx Xxxxx | ||||||
| Xxxxx, Xxxxx 00000 | ||||||
| If to the Company, to: | ||||||
| MetroPCC Texas, LLC | ||||||
| 0000 Xxxxxx Xxxx Xxxx, Xxxxx 000 | ||||||
| Xxxxxx, Xxxxx 00000 | ||||||
| Facsimile: (000) 000-0000 | ||||||
| Attn: Vice President, General Counsel | ||||||
| and | ||||||
| Director, Human Resources | ||||||
All such notices, requests and other communications will (i) if delivered
personally or by overnight carrier to the address as provided in this Section
6.1, be deemed given upon delivery; (ii) if delivered by facsimile transmission
to the facsimile number as provided in this Section 6.1, be deemed given upon receipt
(in each case regardless of whether such notice, request, or other communication is
received by any other person to whom a copy of such notice, request or other
communication is to be delivered pursuant to this Section); and (iii) if delivered by
mail in the manner described above to the address as provided in this Section
6.1, be deemed given five (5) days after the date of deposit in the United States
mail. Any party from time to time may change its address, facsimile number, or other
information for the purpose of notices to that party by giving written notice
specifying such change to the other parties hereto.
6.2
Entire Agreement. This Agreement, and the attached exhibits,
supersede all prior discussions and agreements among the parties with respect to the
subject matter hereof and contain the sole and entire agreement between the parties
hereto with respect to Executive’s
| PAGE 7 |
employment except those pertaining to non-disclosure of confidential, proprietary
information, trade secrets and non-competition.
6.3
Survival. The respective rights and obligations of the parties set forth
in (i) Sections 3, 4, 5 and this Section 6 shall survive the termination of
this Agreement and/or the termination of Executive’s employment with the Company, and (ii)
Sections 2.5.2, 2.5.3, 2.5.5 and 2.5.6 shall survive the termination of
this Agreement and/or the termination of Executive’s employment with the Company to the
extent of any unfulfilled obligations thereunder.
6.4
Waiver. Any term or condition of this Agreement may be waived at any time
by the party that is entitled to the benefit thereof, but no such waiver shall be effective
unless set forth in a written instrument duly executed by or on behalf of the party waiving
such term or condition. No waiver by any party hereto of any term or condition of this
Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of
the same or any other term or condition of this Agreement on any future occasion. All
remedies, either under this Agreement or by law or otherwise afforded, will be cumulative
and not alternative.
6.5
Amendment; Committee Authority. This Agreement may be amended,
supplemented, or modified only by a written instrument duly executed by or on behalf of each
party. All determinations and other actions required or permitted hereunder to be made by or
on behalf of the Company or the Board may be made by either the Board (excluding Executive
therefrom) or the Compensation Committee or Audit Committee of the Board (or any other
committee subsequently granted authority by the Board); provided that the actions of the
Compensation Committee or Audit Committee (or any other committee subsequently granted
authority by the Board) shall be subject to the authority then vested in such committee by
the Board; and provided further that a decision or action by the Compensation Committee or
Audit Committee (or any other committee subsequently granted authority by the Board)
hereunder shall be subject to review or modification by the Board if the Board so chooses.
6.6
Tax and Legal Advice. Executive has had an opportunity to consult with his
legal counsel and tax and other advisors regarding the terms of this
Agreement. The Company agrees to pay reasonable attorneys’ fees associated with Executive’s negotiation of
this Agreement.
6.7
No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party and the Company’s successors or
assigns, and it is not the intention of the parties to confer third-party beneficiary rights
upon any other person.
6.8
No Assignment; Binding Effect. This Agreement shall inure to the benefit
of any successors or assigns of the Company. Executive may not assign this Agreement.
6.9
Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the
provisions hereof.
6.10 Severability. The Company and Executive intend all provisions of this
Agreement to be enforced to the fullest extent permitted by law. Accordingly, if a court
of competent jurisdiction determines that the scope and/or operation of any provision of
this
| PAGE 8 |
Agreement is too broad to be enforced as written, the Company and Executive intend
that the court should reform such provision to such narrower scope and/or operation as
it determines to be enforceable. If, however, any provision of this Agreement is held
to be illegal, invalid, or unenforceable under present or future law, and not subject
to reformation, then (i) such provision shall be fully severable, (ii) this Agreement
shall be construed and enforced as if such provision was never a part of this
Agreement, and (iii) the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by illegal, invalid, or unenforceable
provisions or by their severance.
6.11
General Creditor Status. All cash payments to which Executive may
become entitled hereunder will be paid, when due, from the general assets of the Company,
and no trust fund, escrow arrangement or other segregated account will be established as a
funding vehicle for such payment. Accordingly, Executive’s right (or the right of the
personal representatives or beneficiaries of Executive’s estate) to receive such cash
payments hereunder will at all times be that of a general creditor of the Company and will
have no priority over the claims of other general creditors.
6.12
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas applicable to contracts executed and
performed in such state without giving effect to conflicts of laws
principles.
6.13
Jurisdiction. WITH RESPECT TO ANY SUIT, ACTION, OR OTHER PROCEEDING
ARISING FROM (OR RELATING TO) THIS AGREEMENT, THE COMPANY AND EXECUTIVE HEREBY
IRREVOCABLY AGREE TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AND ANY TEXAS STATE COURT WITHIN DALLAS
COUNTY, TEXAS.
6.14
Counterparts. This Agreement may be executed in any number of
counterparts and by facsimile, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
6.15 Reasonable and Necessary Reimbursement in Event of
Breach. As a further inducement to enter into this Agreement, any party who materially breaches
this Agreement, as determined by a final non-appealable decision by a court of law, must
reimburse the non-breaching party for any and all reasonable loss, cost, damage or
expense, including, without limitation, reasonable and necessary attorneys’ fees,
proximately caused by such breach and incurred as a result of any action or lawsuit to
enforce this Agreement. In addition, any material breach of this Agreement will entitle
the non-breaching party to seek injunctive relief to enforce this Agreement and to
recover any actual damages proximately caused by said breach. In the event of
litigation, the losing party must pay such attorneys’ fees of the prevailing party as
may be awarded by the court but in no event shall the fee award be greater than the
economic recovery.
[Signature Page to Employment Agreement Follows]
EMPLOYMENT AGREEMENT
|
PAGE 9 |
IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement to
be executed on the date first written above.
| “COMPANY” | ||||||
| MetroPCS Texas, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| “EXECUTIVE” | ||||||
| J. Xxxxxxx Xxxxxx, XX | ||||||
EXHIBIT A: Employee Trade Secret and Confidential Information Agreement
EXHIBIT B: Form of Separation Agreement and General Release Agreement
EXHIBIT B: Form of Separation Agreement and General Release Agreement
EMPLOYMENT AGREEMENT
|
PAGE 10 |
EXHIBIT A
EMPLOYMENT AGREEMENT — EXHIBIT A
(EMPLOYEE TRADE SECRET AND CONFIDENTIAL INFORMATION AGREEMENT)
(EMPLOYEE TRADE SECRET AND CONFIDENTIAL INFORMATION AGREEMENT)
EMPLOYEE TRADE SECRET AND CONFIDENTIAL INFORMATION AGREEMENT
As a condition of my employment with MetroPCS Texas, LLC or with one of its
subsidiaries, affiliates, successors or assigns (together, the “Company”), and in
consideration of my employment with the Company and my receipt of the compensation now and
hereafter paid to me by the Company, I agree to the following:
1. Protected Information.
(a) Company Trade Secrets and Confidential Information. I agree at all times
during the term of my employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose or make available to any person or entity,
any Trade Secrets or Confidential Information of the Company. I understand that “Trade Secrets”
means all information and compilations of information of any kind, type, or nature (tangible and
intangible, written or oral and including information contained, stored, or transmitted through
any electronic medium), “Trade Secrets” consist of, but are not limited to, computer software,
database, programs, specifications and code, client/customer lists, confidential
client/customer information, source code, executable code, engineering, pricing data, sources of
supply, products or services, fee schedules, costs and pricing structures, designs, analysis,
drawings, photographs and reports, account lists, good will, personnel lists, training manuals,
techniques, and materials, business opportunity records, notebooks, data, compilation of
information records, specifications, financial data and plans, profit margin and pricing policies
and practices, history and data forecast, computer operating systems, technology, applications
and program listings, flow charts, manuals and documentation, databases, accounting and business
methods and plans, inventions, devices, new ideas and developments, methods and processes,
sales and marketing information and techniques, production procedures,
merchandising systems or plans of the Company, the Company’s clients/customers, and inventions
made, developed or conceived by the Company. “Confidential Information” means all information and
compilations of information of any kind, type or nature (tangible and intangible, written or oral
and including information contained, stored, or transmitted through any electronic medium),
whether owned by the Company or licensed from third parties, which, at any time during my
employment, is devised, developed, designed or discovered or otherwise acquired or learned by me
to the extent it relates to the Company or its partners, business, services, products, processes,
properties or assets, customers, clients, markets, source code, executable code, marketing
plans and strategies, product plans, formulae, management, employees, technology and
technical data, research, know-how, accounting, finances, trade secrets, financial conditions or
prospects, including, but not limited to, employee compensation, clients/customers,
client/customer lists, client/customer fee information, account lists, good will, business
development plans and strategies, business opportunity records, notebooks, data, training
materials, fees, costs, pricing structures and inventions. Notwithstanding the foregoing, the
terms “Trade Secrets” and “Confidential Information” will not apply to any information that (i)
is or becomes publicly available without breach of this Agreement; (ii) I know prior to receiving
it from or creating it for the Company, (iii) I rightfully received from a third party who did
not acquire or disclose such information by a wrongful or tortuous act; (iv) I developed after my
cessation of employment with the Company without reference to any Trade Secrets or Confidential
Information; or (v) is required under applicable law to be disclosed. In the case of
Employee Trade Secret and Confidential Information Agreement
|
Page 1 |
information subject to clause (v) of the preceding sentence, I will give the Company
prompt written notice of such disclosure. I acknowledge that the Trade Secrets and Confidential
Information are valuable and unique assets that provide the Company an advantage over
competitors; are developed or acquired by the Company at considerable time and expense; are
proprietary to the Company and are intended to be used solely for the benefit of the Company. I
acknowledge that, but for my agreement to the terms and conditions of this Agreement, the
Company would not impart or provide access to such Trade Secrets and Confidential Information.
(b) Former Employer Information. I agree that I will not, at any time during my
employment with the Company, improperly use or disclose any trade secrets or confidential
information of any former or concurrent employer or other person or entity and that I will not
bring into the Company any unpublished document or confidential information belonging to any
such other employer, person or entity unless consented to in writing by such employer, person or
entity.
(c) Third Party Information. I recognize that the Company has received and in the
future will receive from third parties their trade secret and confidential information subject
to a duty on the Company’s part to maintain the confidentiality of such information and to use
it only for certain limited purposes within the course and scope of the Company’s relationship
with such third parties and of my employment with the Company. I agree to hold all such
third-party information in the strictest confidence and not to disclose it to any person, firm
or corporation or to use it except as necessary in carrying out my work for the Company
consistent with the Company’s agreement with such third party.
2. Inventions.
(a) Inventions Retained and Licensed. To preclude any possible uncertainty over
the ownership of any invention, I have attached hereto, as
Exhibit A, a complete list
of all inventions, original works of authorship, developments, improvements, and trade secrets
which (i) were made by me, either alone or jointly with others, prior to my commencement of my
employment with the Company, independently and not as a part of or relation to my employment
with the Company, (ii) belong to me only, (iii) relate to or could relate to the Company’s
proposed business, products or research and development, and (iv) I do not intend to assign to
the Company hereunder (collectively referred to as “Independent Inventions”); or, if no such
list is attached, I represent that there are no such Independent Inventions. If disclosure of
any such invention on Exhibit A would cause me to violate any prior confidentiality
agreement, I understand that I am not to list such inventions in Exhibit A but am to
inform the Company that all inventions have not been listed for that
reason. If in the course
of my employment with the Company, I incorporate into any invention, improvement, development,
product, copyrightable material or trade secret any invention, improvement, development,
concept, discovery or other proprietary information owned by me or in which I have an interest,
the Company is hereby granted and shall have a nonexclusive, assignable, royalty-free,
irrevocable, perpetual, sublicenseable (through one or multiple tiers) worldwide license to
make, have made, modify, reproduce, distribute, create derivative works of, use, offer to sell,
and sell such item as part of or in connection with such product, process or machine.
Employee
Trade Secret and Confidential Information Agreement
|
Page 2 |
(b) Assignment of Inventions. I agree that I (i) will promptly make full
written disclosure to the Company, (ii) will hold in trust for the sole right and benefit of
the Company, and (iii) hereby assign to the Company, or its designee, all my right, title, and
interest in and to any and all inventions, discoveries, original works of authorship,
developments, concepts, improvements or trade secrets, whether or not patentable or registrable
under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to
practice, or cause to be conceived or developed or reduced to practice, during the period of
time I am in the employ of the Company (collectively referred to as “Company Inventions”). I
further acknowledge that all work papers, reports, documentation, drawings, photographs,
negatives, tapes and masters thereof, phototypes, and other materials, including, without
limitation, any and all such items generated and maintained on any form of electric media
(herein “work of authorship”) which are made by me (solely or jointly with others) within the
scope of and during the period of my employment with the Company and which can be protected by
copyright are “works made for hire,” as that term is defined in the United States Copyright Act
and shall be the sole and complete property of the Company. To the extent that any such work
of authorship may not be deemed a “work for hire,” I hereby irrevocably assign all my ownership
rights in and to such work to the Company. If any such work cannot be assigned, I hereby grant
to the Company an exclusive, assignable, irrevocable, perpetual, worldwide, sublicenseable
(through one or multiple tiers), royalty-free, unlimited license to make, have made, modify,
use, reproduce, distribute, create derivative works of, display, offer to sell, and sell such
work in any media now known, or hereafter known. Outside the scope of my employment, I agree
not to (i) modify, adapt, alter, translate, or create derivative works from any such work of
authorship, or (ii) merge any such work of authorship with other inventions.
(c) Inventions Assigned to the United States. I agree to assign to the United
States government all my right, title, and interest in and to any and all Company Inventions
whenever such full title is required to be in the United States by a contract between the
Company and the United States or any of its agencies.
(d) Maintenance of Records. I agree to keep and maintain adequate and current
written records of all Company Inventions made by me (solely or jointly with others) during the
term of my employment with the Company. The records will be in the form of notes, sketches,
drawings, and any other format that may be specified by the Company. The records will be
available to and remain the sole property of the Company at all times.
(e) Patent and Copyright Registrations. I agree to assist the Company, or its
designee, at the Company’s expense, in every proper way to secure the Company’s rights in the
Company Inventions and any copyrights, patents, mask work rights or other intellectual property
rights relating thereto in any and all countries, including the disclosure to the Company of all
pertinent information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order to assign and
convey to the Company, its successors, assigns and nominees, the sole and exclusive rights,
title and interest in and to such Company Inventions, and any copyrights, patents, mask work
rights or other intellectual property rights relating thereto. I further agree that my
obligation to execute or cause to be executed, when it is in my power to do so, any such
instrument or papers shall continue after the termination of this Agreement. If the Company is
unable because of my mental or
Employee
Trade Secret and Confidential Information Agreement
|
Page 3 |
physical incapacity or for any other reason to secure my signature to apply for or to
pursue any application for any United States or foreign patents or copyright registrations
covering Company Inventions or original works of authorship assigned to the Company as
above, then I hereby irrevocably designate and appoint the Company and its duly authorized
officers and agents as my agent and attorney in fact, to act for and in my behalf and stead
to execute and file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent or copyright registrations thereon
with the same legal force and effect as if executed by me. I hereby waive and quitclaim to
the Company any and all claims, of any nature whatsoever, that I now or may hereafter have
for infringement of any ownership rights assigned hereunder to the Company.
(f)
Obligation to Keep Company Informed. During the first year
after termination
of my employment, I will provide the Company with a complete copy of each patent application and
copyright registration application (including any mask work registration application) filed
by me or that names me as an inventor, co-inventor, author, co-author, creator, co-creator,
developer, or co-developer.
(g) No Reciprocal License. I acknowledge and agree that nothing in this Agreement
shall be deemed to grant, by implication, estoppel, or otherwise, (i) a license from the Company
to me to make, use, license, or transfer in any way a Company Invention, or (ii) a license from
the Company to me regarding any of the Company’s existing or future ownership rights.
3. Conflicting Employment. I agree that, during the term of my employment with the
Company, I will not engage in any other employment, occupation, consulting or other business
activity directly related to the business in which the Company is now involved or planning or in
which the Company becomes involved during the term of my employment, nor will I engage in any
other activities that conflict with my obligations to the Company.
4. Returning Company Property. I agree that, at the time of leaving the employ of
the Company, I will deliver to the Company (and will not keep in my possession, recreate or
deliver to anyone else) all property and documents of and/or relating to the Company, its
customers, and its clients, including but not limited to the following: Trade Secrets,
Confidential Information, all disks and copies of software applications utilized by the Company
or its clients, customers, or business, hard and soft copies of data, drawings, notes, proposals,
specifications, blueprints, sketches, equipment, records, reports, analyses, books and
records, manuals, correspondence, customer lists, computer programs, intellectual property, and
all other materials or property and all copies or reproductions thereof relating in any way to
the Company’s business, or in any way obtained or developed by me during my employment with the
Company. I also agree not to retain any copies of the foregoing. In the event of the
termination of my employment, I agree to sign and deliver the “Termination Certification”
attached hereto as Exhibit B.
5. Notification to New Employer. In the event that I leave the employ of the
Company, I hereby grant consent to notification by the Company to my new employer about my
obligations under this Agreement.
Employee Trade Secret and Confidential Information Agreement
|
Page 4 |
6. Nonsolicitation. For one year after my last day of employment with the
Company, or for one year from the date of any court order enforcing all or part of this Agreement,
whichever is later, I will not directly or indirectly (i) induce, entice or attempt to induce or
entice any employee of the Company to terminate that employee’s employment with the Company; (ii)
induce, entice or attempt to induce or entice any consultant or independent contractor doing
business with or retained by the Company to terminate their consultancy or contractual relationship
with the Company; (iii) induce, entice or attempt to induce or entice any client, customer,
supplier, vendor or any person to cease doing business with the Company; and/or (v) either on
behalf of a competitor of the Company, or on behalf of an individual or other entity who provides
the same or similar services, processes, or products as the Company, employ or retain, or attempt
to employ or retain, any employee, consultant or independent contractor of the Company, either for
myself or for any other person or entity. The limitations and restrictions in sub-item (iii) shall
apply only to prospective, present, and former (within the last twelve months) customers of the
Company, located within a 100 mile radius of any area in which the Company maintains customers or
engages in business, and for whom you, while employed by the Company have provided services within
the twelve months prior to your separation from the Company’s employ. You acknowledge that these
limitations and restrictions are fair, reasonable, ancillary to Paragraph 1 and to this Agreement,
and are required for the protection of the Company.
7. Representations. I agree to execute any proper oath or verify any proper
document required to carry out the terms of this Agreement. I represent that my performance of all
the terms of this Agreement will not breach any agreement to keep in confidence proprietary
information acquired by me in confidence or in trust prior to my employment by the Company. I have
not entered into, and I agree I will not enter into, any oral or written agreement in conflict
herewith.
8. General Provisions.
(a) I understand, acknowledge, and agree that this Agreement inures to the benefit of the
Company as defined herein.
(b) Governing
Law; Consent to Personal Jurisdiction and Venue. This Agreement
shall be governed by and construed in accordance with the domestic laws of the State of Texas
without giving effect to any choice or conflict of law provision or rule (either of the State of
Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Texas. The Trade Secrets and Confidential Information protected by this
Agreement shall be subject to protection and seal to the full extent contemplated by the laws of
the State of Texas. Any action, suit, or other legal proceeding commenced to resolve any dispute
arising under or relating to any provision of this Agreement shall be commenced only in the state
or federal courts in Dallas County, Texas, and expressly consent and submit to the jurisdiction of
such court.
(c) Entire Agreement. This Agreement sets forth the entire agreement and
understanding between the Company and me relating to the subject matter herein and merges all prior
discussions between us. No modification of or amendment to this Agreement, nor any waiver of any
rights under this Agreement, will be effective unless in writing and signed by the
| Employee Trade Secret and Confidential Information Agreement | Page 5 |
party to be charged. Any subsequent change or changes in my duties, salary or compensation
will not affect the validity or scope of this Agreement.
(d) Severability; Survival. If one or more of the provisions in this Agreement are
deemed void by law, then the remaining provisions will continue in full force and effect. The
provisions of this Agreement shall survive my termination of employment with the Company.
(e) Subsidiaries,
Affiliates, Successors, and Assigns. Except as otherwise provided
herein, this Agreement will inure to the benefit of and be enforceable by the Company, as defined
herein, and may be assigned by the Company. This Agreement and my rights and obligations
hereunder may not be assigned by me without the prior written consent of the Company.
(f) Remedies. I acknowledge and agree that any breach or violation of any term or
provision of this Agreement will result in immediate and irreparable harm to the Company and will
cause damage to the Company in amounts difficult to ascertain. Accordingly, in the event of a
breach or threatened breach by me of this Agreement, I agree that the Company, in addition to and
without limitation of any other rights, remedies or damages available to it at law or in equity,
shall be entitled, without posting bond or proving actual damages, to a temporary restraining order
and to a preliminary and/or permanent injunction in order to prevent or restrain any such breach by
me or my partners, agents, representatives, employers, employees, and/or any and all persons
directly or indirectly acting for or with or for the benefit of me. The parties acknowledge that
the remedies contained in this paragraph are reasonably related to the injuries the Company may
sustain as a result of my breach of my obligations under the Agreement and are not a penalty. No
delay or omission by the Company in exercising any right under this Agreement will operate as a
waiver of that or any other right. The foregoing shall not otherwise limit the Company’s rights and
remedies hereunder. A waiver or consent given by the Company on any one occasion is effective only
in that instance and will not be construed as a bar to or waiver of any right on any other
occasion. The validity or unenforceability of any provision of this Agreement shall not affect
the validity or enforceability of any other provision of this Agreement.
Date: , 2005
| Signature | ||
| J. Xxxxxxx Xxxxxx, XX | ||
Witness Signature |
||
Witness Printed Name |
| Employee Trade Secret and Confidential Information Agreement | Page 6 |
EXHIBIT A
LIST OF INDEPENDENT INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
AND ORIGINAL WORKS OF AUTHORSHIP
Pursuant to the Employee Trade Secret and Confidential Information Agreement by and
between me and the Company, the following is a complete list of all inventions that I
desire to remove from the operation of the Agreement in accordance with Section 2 of the
Agreement.
| Title | Date | Co-Inventors | Identifying Number or Brief Description |
|||
I have no inventions or improvements to disclose
I have no additional sheets attached
I have additional sheets attached
Signature of Employee: |
||||
Print Name of Employee:
|
J. Xxxxxxx Xxxxxx, XX
|
Date:
| Employee Trade Secret and Confidential Information Agreement | Page 7 |
EXHIBIT B
METROPCS TEXAS, LLC
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed to return, any
devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings,
blueprints, sketches, materials, equipment, other documents or property, or reproductions of any
aforementioned items belonging to MetroPCS Texas, LLC, its subsidiaries, affiliates, successors or
assigns (together, the “Company”).
I further certify that I have complied with all the terms of the Company’s Employee Trade
Secret and Confidential Information Agreement signed by me, including the reporting of any
inventions and original works of authorship (as defined therein), conceived or made by me (solely
or jointly with others) covered by that Agreement.
I further agree that, in compliance with the Employee Trade Secret and Confidential
Information Agreement, I will preserve as confidential all trade secrets and confidential
information as defined in the Trade Secret and Confidential
Information Agreement.
I further acknowledge and reconfirm my prior commitment not to, for one (1) year from this
date, hire any employees of the Company and not to solicit, induce, recruit or encourage any of
the Company’s employees to leave their employment.
Date: , 2005
| (Employee’s Signature) | ||
| J. Xxxxxxx Xxxxxx, XX |
| Employee Trade Secret and Confidential Information Agreement | Page 8 |
EXHIBIT B
EMPLOYMENT AGREEMENT — EXHIBIT B (AGREEMENT AND GENERAL RELEASE)
[MetroPCS LETTERHEAD]
[Date]
Mr. J. Xxxxxxx Xxxxxx, XX
Re: Agreement and General Release
Dear Xxxxxxx:
Your employment with MetroPCS Texas, LLC (the “Company”) is separated effective
, 200 . It is appropriate that we record our understanding of the agreements we have made
upon your leaving our employment. This letter, then, states the mutual agreement of the Company
(for itself, its predecessors, successors, affiliates, partial affiliates, shareholders, officers,
directors, agents, representatives, and employees, all individually and in their official
capacities), on the one hand, and you, J, Xxxxxxx Xxxxxx, XX (for yourself, your spouse,
executors, heirs, beneficiaries, representatives, personal representatives, successors, assigns,
legatees, and anyone claiming by or through you), on the other hand, regarding the termination of
your employment with the Company.
By signing this letter, which is an agreement and general release (“Agreement”), you
knowingly and voluntarily acknowledge, agree to and do represent and warrant the following:
(1) That this Agreement and the terms stated herein are agreed upon as an amicable resolution
of all matters arising between the Company and you;
(2) That you have turned over to the Company all property belonging to the Company (including
trade secrets and all other confidential and proprietary information, computer files, computer
discs, documents, notes, papers, correspondence, keys, and issued equipment); that if you should
find yourself in possession of any property of the Company, you will return such property to the
Company immediately;
(3) That you will abide by the terms of all policies of and agreements you have signed with
the Company, including those concerning non-solicitation, non-competition, and non-disclosure or
use of trade secrets or proprietary or confidential information. You also agree not to challenge
the enforceability of these agreements. You release any claim you may have to the Company’s trade
secrets and proprietary and confidential information and goodwill. You agree not to disclose or
use the Company’s trade secrets or proprietary or confidential information or interfere with the
Company’s good will. This agreement is a reaffirmation of that certain Employee Trade Secret and
Confidential Information Agreement (“Confidentiality Agreement”) between you and the Company dated
, 2005, and is reasonable and
| AGREEMENT AND GENERAL RELEASE | PAGE l |
necessary for the continuing protection of the promises the parties made in the
Confidentiality Agreement.
(4) That you will cooperate with the Company at the Company’s expense and request in all
respects concerning any matters which require your assistance, cooperation or knowledge, including
communicating with persons inside or outside the Company and assistance/availability for any
agency, board, and legal investigations and proceedings;
(5) That in the event you seek reemployment or future employment with the Company after the
date of this Agreement, you understand and agree that the Company will have the complete and
unfettered right to reject your application for employment immediately and summarily;
(6) That, to the full extent permitted by law, you (for yourself, your spouse, executors,
heirs, beneficiaries, representatives, personal representatives, successors, assigns, legatees, and
anyone claiming by or through you), upon signing this Agreement, do immediately, completely,
knowingly and voluntarily release and forever discharge, covenant not to present or to xxx, and
waive any right to recover from the Company (including its predecessors, successors, affiliates,
partial affiliates, shareholders, officers, directors, agents, insurers, representatives, employees
and former employees, all individually and in their official capacities) from any and all claims
relating to or arising from your employment and termination of employment with the Company and any
act that has occurred as of the date of the execution of this Agreement in connection with any
service that you may have rendered or may have been requested to render to or on behalf of the
Company at anytime; and that this release shall be construed as broadly as possible and shall
include without limitation any (1) contractual or other claims of employment, benefits, or payment
you may have, if any; (2) claims, if any, arising out of or in connection with the initiation,
termination or existence of your employment relationship with the Company or any service performed
on behalf of the Company; (3) claims, if any, regarding wages and/or compensation in any form
whatsoever, vacation, leaves, bonuses, commissions, monies, perquisites, benefits, severance,
or any other item attributable to or arising in connection with your employment with the Company;
and (4) without limitation, claims, if any, arising under the following:
| • | Title VII of the Civil Rights Act of 1964, as amended; | ||
| • | The Americans with Disabilities Act of 1990, as amended; | ||
| • | The Age Discrimination in Employment Act of 1967, as amended; | ||
| • | The Fair Labor Standards Act of 1938, as amended; | ||
| • | The Family and Medical Leave Act of 1993; | ||
| • | The Employee Retirement Income Security Act of 1974 (ERISA), as amended; | ||
| • | The Xxxxxxxx-Xxxxx Act of 2002; | ||
| • | The Occupational Safety and Health Act of 1970 (OSHA); | ||
| • | The Equal Pay Act of 1963; |
| AGREEMENT AND GENERAL RELEASE | PAGE 2 |
| • | The National Labor Relations Act (NLRA); | ||
| • | The Immigration Reform and Control Act (IRCA); | ||
| • | Texas Labor Code § 21,001, et seq. (Texas Employment Discrimination); | ||
| • | Texas Labor Code § 61.001, et seq. (Texas Pay Day Act); | ||
| • | Texas Labor Code § 62.002, et seq. (Texas Minimum Wage Act); | ||
| • | Texas Labor Code § 201.001, et seq. (Texas Unemployment Compensation Act); | ||
| • | Texas Labor Code § 401,001, et seq. specifically § 451.001 formerly codified as Article 8307c of the Revised Civil Statutes (Texas Workers’ Compensation Act and Discrimination Issues); | ||
| • | Texas Genetic Information and Testing Law; | ||
| • | Dallas, Texas Code of Ordinances Chapter 15B, §§ 15B-1 through 15B-6; Chapter 46, § 46-1 through 46-13; | ||
| • | any other federal, state or local civil or human rights law or other local, state or federal law, regulation or ordinance; | ||
| • | any public policy, contract, tort, or common law (including without limitation those relating to fraud, whistleblower, retaliation, constructive discharge, negligent or intentional conduct of any nature); or | ||
| • | any allegation for damages, costs, fees, or expenses, including expert witness and attorneys’ fees incurred in these matters; |
The foregoing provisions in this Paragraph 6 shall not be deemed in any way to release the
Company from its obligations under (i) Section 2.5 of the Employment Agreement dated as of March
31, 2005, as it may be amended, between the Company and you (“Employment Agreement”) or (ii) the
Indemnification Agreement dated as of March 10, 2004, as it may be amended, replaced, or
superceded, between MetroPCS Communications, Inc. and you or any other rights to indemnification
and advancement of expenses that you may have under (x) the certificate of incorporation, bylaws or
other organizational documents of the Company or any of its affiliates or (y) applicable law.
(7) That you will not disclose either the fact of or the terms of this Agreement except as may
be required to comply with applicable law or to an attorney or tax consultant with whom you choose
to consult regarding your consideration of this Agreement;
(8) That you would not receive the monies and/or benefits under this Agreement except for your
execution and non-revocation of this Agreement and the fulfillment of the promises herein, and that
the Company’s obligations under this Agreement shall cease in the event you breach any provision of
this Agreement and/or any agreement pertaining to non disclosure of confidential, proprietary
information, trade secrets and non-competition;
(9) That you have up to twenty-one (21) days to consider and sign this Agreement and that you
may revoke this Agreement for a period of up to seven (7) days following the day
| AGREEMENT AND GENERAL RELEASE | PAGE 3 |
you execute this Agreement. Any revocation within this period must be submitted, in writing,
to the Company and state, “I hereby revoke my acceptance of our Agreement.” The revocation must be
personally delivered to Director, Human Resources or Director, Human Resources’ designee, or mailed
to Director, Human Resources and postmarked no later than the seventh day after you sign this
Agreement. This Agreement shall not become effective or enforceable until the Company has received
from you a signed copy of the Agreement and a letter in the form of Exhibit “A” and the revocation
period has expired. If the last day of the revocation period is a Saturday, Sunday, or legal
holiday in Texas, then the revocation period shall not expire until the next following day which is
not a Saturday, Sunday, or legal holiday. The Company does hereby advise you to consult with an
attorney prior to signing this Agreement;
(10) That you have received all vacation, leaves, wages, commissions, bonuses, monies,
benefits, perquisites, severance and whatever else of any nature you contend or may contend are due
to you from the Company and that you have made reasonable efforts to understand fully the terms of
this Agreement, including the nature and extent of the claims released, and that you are freely and
knowingly, after adequate consideration, agreeing to its terms;
(11) That you have not been induced to execute this Agreement by any representations or
agreements other than what is expressly set forth in this Agreement; that this Agreement
constitutes the entire agreement between you and the Company and supersedes all prior oral and/or
written agreements with the Company except those pertaining to non-disclosure of confidential,
proprietary information, trade secrets and non-competition; and that this Agreement may not be
modified except by written agreement with the Company executed by you and an authorized officer of
the Company;
(12) That the Company has made no representations to you concerning the taxable status of the
payments made under this Agreement; that you are solely responsible for tax liability, if any; and
that you will indemnify and defend the Company in connection with any tax liability for the
payments;
(13) That if any provisions of this Agreement except the general releases are prohibited by
law and cannot be modified to be enforceable, such provisions shall immediately become null and
void, leaving the remainder of this Agreement in full force and
effect. Except as to a claim
released under the Age Discrimination in Employment Act, as amended, if any portion of the general
release language is ruled to be unenforceable for any reason, you will return to the Company all of
the monetary consideration paid under this Agreement to the Company.
(14) That this Agreement is performable in Texas and shall be interpreted in all respects
under the laws of the State of Texas (excluding its choice of law rules) and jurisdiction and venue
(location of any lawsuit) shall be solely in Dallas County, Texas;
(15) That in consideration for signing and not revoking this Agreement and
compliance with the promises made herein, including specifically but without limitation the
promises in Paragraph 9, the Company agrees as follows:
| AGREEMENT AND GENERAL RELEASE | PAGE 4 |
a. If you are terminated without “Cause” or constructively terminated for “Good
Reason” (as respectively defined in the Employment Agreement), to pay to you the amount set
forth in Section 2.5.2 or Section 2.5.3 of the Employment Agreement, as applicable. Such
payment shall be paid to you in a lump sum within 5 business days after the Company has
received both this Agreement bearing your original signature not later than 22 days after
you receive the Agreement and a letter signed by you in the form attached hereto as Exhibit
“A;” provided that the letter is not signed or dated until 8 days after you sign this
Agreement.
b. to extend the deadline for the exercise of your vested stock options (the “Option
Extension”) until 5:00 p.m. (Central Time) on the 60th day after the first date
on which both (i) the common stock of MetroPCS Communications, Inc. is listed on any Stock
Exchange (as such term is defined in MetroPCS Communications’ Second Amended and Restated
Stock Option Plan (the “1995 Plan”)) or is quoted on the Nasdaq National Market System and
(ii) any lock-up or similar contractual obligation prohibiting you from transferring your
vested Option Shares (as such term is defined in the 1995 Plan) shall have expired;
provided, however, that in no event shall the Option Extension with respect to any
particular option extend beyond the stated term of such option as set forth in the option
agreement or other documentation relating to such option.
You agree that this consideration is monies and benefits to which you are not entitled under any
policy or custom of the Company and that the payment and benefits constitute full and fair
consideration for the agreements, restrictions, representations, warrants, and waivers of rights
and claims and the releases stated in this Agreement; that you have not assigned to any other
person or entity any of the rights and claims waived and released in this Agreement; and that you
have full right and authority to grant the waivers and releases in this Agreement; and that there
are no third party claims or liens to which the payments under which this Agreement may be
subject.
THE PARTIES HAVE READ AND FULLY CONSIDERED THIS AGREEMENT AND THE GENERAL RELEASE LANGUAGE
HEREIN AND DESIRE TO ENTER INTO THIS AGREEMENT. J. XXXXXXX XXXXXX, XX HAS BEEN ADVISED THAT HE HAS
TWENTY-ONE (21) DAYS TO CONSIDER THIS AGREEMENT AND SEVEN (7) DAYS FROM THE DATE HE SIGNS THIS
AGREEMENT TO REVOKE THIS AGREEMENT. ANY SUCH REVOCATION MUST BE MADE IN WRITING TO DIRECTOR, HUMAN
RESOURCES. J. XXXXXXX XXXXXX, XX HAS ALSO BEEN ADVISED HEREIN IN WRITING TO CONSULT WITH AN
ATTORNEY PRIOR TO SIGNING THIS AGREEMENT. HAVING ELECTED TO SIGN THIS AGREEMENT AND RECEIVE THE
CONSIDERATION DESCRIBED IN PARAGRAPH 18 ABOVE, J. XXXXXXX XXXXXX, XX FREELY AND KNOWINGLY, AND
AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL
CLAIMS J. XXXXXXX XXXXXX, XX HAS OR MIGHT HAVE AGAINST THE COMPANY AS OF THE DATE HE SIGNS THIS
AGREEMENT.
[Signature Page to Agreement and General Release Follow]
| AGREEMENT AND GENERAL RELEASE | PAGE 5 |
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this
Agreement and General Release as of the date set forth below.
| J. Xxxxxxx Xxxxxx, XX | ||
| Date | ||
| METROPCS TEXAS, LLC |
| By: | ||||
| , as | ||||||||
| , | ||||||||
| [name] | [title] | |||||||
| Date |
| AGREEMENT AND GENERAL RELEASE | PAGE 6 | |||
EXHIBIT “A”
Director, Human Resources
MetroPCS Texas, LLC
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
MetroPCS Texas, LLC
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Re:
Agreement and General Release
Dear Director, Human Resources:
On [date] I signed an Agreement and General Release between MetroPCS Texas, LLC
(the “Company”) and me. I was advised by the Company, in writing, to consult with an attorney of my
choosing, prior to signing this Agreement and General Release.
I understand that I had up to seven days from the date I signed the Agreement and General Release
in which to revoke it.
I have at no time revoked my acceptance or signing of that Agreement and General Release and
hereby reaffirm my acceptance of that Agreement and General Release. I further state that I have
not experienced any unlawful treatment while employed by the Company.
Therefore, in accordance with the terms of our Agreement and General Release, I hereby
request payment of the monies described in the Agreement.
| Very truly yours, | ||
| J. Xxxxxxx Xxxxxx, XX |
| AGREEMENT AND GENERAL RELEASE | PAGE 7 |
