INDEMNIFICATION AGREEMENT
Exhibit 10.4
THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is effective as of
, by and among MetroPCS Communications, Inc., a Delaware corporation (the
“Company”), and (the “Indemnitee”).
WHEREAS, the Indemnitee has been asked to serve on the Board of Directors (the
“Board”) of the Company, as an officer or employee of the Company, or as a director,
officer, employee or management committee member of an Affiliate of the Company;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify persons serving as directors, officers and/or employees of the Company
to the fullest extent permitted by applicable law so that they will serve or continue to serve as
directors, officers and/or employees of the Company free from undue concern that they will not be
so indemnified;
WHEREAS, the Indemnitee is willing to serve and continue to serve on the Board, as an
officer or employee of the Company, or as a director, officer, employee or management committee
member of an Affiliate of the Company on the condition that he be so indemnified; and
WHEREAS, to the extent permitted by law, this Agreement is a supplement to and in
furtherance of the provisions of the Company’s Second Amended and Restated Certificate of
Incorporation, as amended and/or restated from time to time (the “Certificate”), the
provisions of the Company’s bylaws, as amended and/or restated from time to time (the
“Bylaws”), or resolutions adopted pursuant thereto, and the Second Amended and Restated
Stockholders Agreement, dated August 30, 2005, by and between the Company and the stockholders
thereof, (“Stockholders Agreement”), and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of the Indemnitee thereunder;
NOW THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and the Indemnitee do hereby covenant and agree as follows:
Section 1. Services by the Indemnitee. The Indemnitee agrees to continue to serve at the
request of the Company as a director, officer and/or employee of the Company (including, without
limitation, service on one or more committees of the Board and/or as a director, officer, employee
or management committee member of an Affiliate of the Company). Notwithstanding the foregoing, the
Indemnitee may at any time and for any reason resign from any such position.
Section 2. Indemnification—General. The Company shall indemnify, and advance Expenses
(as hereinafter defined) to, the Indemnitee as provided in this Agreement and to the fullest extent
permitted by applicable law in effect on the date hereof and to such greater extent as applicable
law may thereafter from time to time permit. The rights of the Indemnitee provided under the
preceding sentence shall include, but shall not be limited to, the rights set forth in the other
Sections of this Agreement.
Section 3. Proceedings Other Than Proceedings by or in the Right of the Company. The
Indemnitee shall be entitled to the rights of indemnification provided in this Section 3
if, by reason of his Corporate Status (as hereinafter defined), he is, or is threatened to be made,
a party to or participant in any threatened, pending or completed Proceeding (as hereinafter
defined), other than a Proceeding by or in the right of the Company. Pursuant to this Section
3, the Company shall indemnify the Indemnitee against Expenses, judgments, penalties, fines and
amounts paid in settlement (as and to the extent permitted hereunder) actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter
therein, if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Company or in a manner otherwise expressly permitted under the
Certificate, the Bylaws, or the Stockholders Agreement and, with respect to any criminal
Proceeding, if he had no reasonable cause to believe his conduct was unlawful.
Section 4. Proceedings by or in the Right of the Company. The Indemnitee shall be
entitled to the rights of indemnification provided in this Section 4 if, by reason of his
Corporate Status, he is, or is threatened to be made, a party to or participant in any threatened,
pending or completed Proceeding brought by or in the right of the
Company to procure a judgment in
its favor. Pursuant to this Section 4, the Company shall indemnify the Indemnitee against
Expenses actually and reasonably incurred by him or on his behalf in connection with such
Proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Company or in a manner otherwise expressly permitted under
the Certificate, the Bylaws, or the Stockholders Agreement. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of any claim, issue or matter in
such Proceeding as to which the Indemnitee shall have been adjudged to be liable to the Company or
if applicable law prohibits such indemnification; provided, however, that if
applicable law so permits, indemnification against Expenses shall nevertheless be made by the
Company in such event if and to the extent that the court in which such Proceeding shall have been
brought or is pending, shall so determine.
Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
(a) To the extent that the Indemnitee is, by reason of his Corporate Status, a party to
and is wholly successful, on the merits or otherwise, in any Proceeding, the Company shall
indemnify the Indemnitee against all Expenses actually and reasonably incurred by him or on his
behalf in connection therewith. If the Indemnitee is not wholly successful in defense of any
Proceeding but is successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify the Indemnitee against
all Expenses actually and reasonably incurred by him or on his behalf in connection with each such
claim, issue or matter as to which the Indemnitee is successful, on the merits or otherwise. For
purposes of this Section 5(a), and without limiting the foregoing, if any Proceeding is
disposed of, on the merits or otherwise (including a disposition without prejudice), without (i)
the disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the
Company, (iii) a plea of guilty or nolo contendere by Indemnitee, (iv) an adjudication that
Indemnitee did not act in good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company or in a manner that was not otherwise expressly
permitted under the Certificate, the Bylaws or the Stockholders Agreement, and (v) with respect to
any criminal proceeding, an adjudication that Indemnitee had no reasonable cause to believe
Indemnitee’s conduct was unlawful, Indemnitee shall be considered for the purposes hereof to have
been wholly successful with respect thereto. The provisions of this Section 5(a) are
subject to Section 5(b) below.
(b) In no event shall the Indemnitee be entitled to indemnification under Section 5(a) above
with respect to a claim, issue or matter to the extent (i) applicable law prohibits such
indemnification, or (ii) an admission is made by the Indemnitee in writing to the Company or in
such Proceeding or a final, nonappealable determination is made in such Proceeding that the
standard of conduct required for indemnification under this Agreement has not been made with
respect to such claim, issue or matter.
Section 6. Indemnification for Expenses as a Witness. Notwithstanding any provisions herein to
the contrary, to the extent that the Indemnitee is, by reason of his Corporate Status, a witness in
any Proceeding, the Company shall indemnify the Indemnitee against all Expenses actually and
reasonably incurred by or on behalf of the Indemnitee in connection therewith.
Section 7. Advancement of Expenses. The Company shall advance all reasonable Expenses
incurred by or on behalf of the Indemnitee in connection with any Proceeding within 10 calendar
days after the receipt by the Company of a written statement or statements from the Indemnitee
requesting such advance or advances from time to time, whether prior to or after the final
disposition of such Proceeding. Such written statement or statements shall reasonably evidence the
Expenses incurred by or on behalf of the Indemnitee. The Indemnitee hereby expressly undertakes to
repay such amounts advanced only if, and to the extent that, it shall ultimately be determined by a
final, non-appealable adjudication or arbitration decision that the Indemnitee is not entitled to
be indemnified against such Expenses. All amounts advanced to the Indemnitee by the Company
pursuant to this Section 7 shall be without interest. The Company shall make all advances
pursuant to this Section 7 without regard to the financial ability of the Indemnitee to
make repayment, without bond or other security and without regard to the prospect of whether the
Indemnitee may ultimately be found to be entitled to indemnification under the provisions of this
Agreement. Any required reimbursement of Expenses by the Indemnitee shall be made by the Indemnitee to the
Company within 10 days following the entry of the final, non-appealable adjudication or arbitration
decision pursuant to which it is determined that the Indemnitee is not entitled to be indemnified
against such Expenses.
Section 8. Procedure for Payment of Indemnification. Indemnitee shall submit to the
Company a written request specifying the indemnifiable amounts for which Indemnitee seeks payment
under Sections 2, 3 and 4 of this
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Agreement and the basis for the claim.
The Company shall pay such indemnifiable amounts to Indemnitee within 30 calendar days (or earlier
if reasonably requested by Indemnitee) of receipt of the request. At the request of the Company,
Indemnitee shall furnish such documentation and information as are reasonably available to
Indemnitee and necessary to establish that Indemnitee is entitled to indemnification hereunder. If
indemnification for indemnifiable amounts has been made under this Section 8 and it has
been adjudicated finally by a court of competent jurisdiction that, in connection with the subject
of the Proceeding out of which the claim for indemnification has arisen, Indemnitee is not entitled
under this Agreement to such indemnification with respect to any or all of such indemnifiable
amounts, then Indemnitee shall promptly repay, but in no event more than 60 calendar days from the
date such judgment has been adjudicated finally by a court of competent jurisdiction, any or all of
such indemnifiable amounts, as the case may be, to the Company.
Section 9. Reserved.
Section 10. Remedies of the Indemnitee.
(a) In the event that (i) advancement of Expenses is not timely made pursuant to
Section 7 of this Agreement, (ii) payment of indemnification is not made pursuant to
Section 6 of this Agreement within 10 calendar days after receipt by the Company of a
written request therefor or (iii) payment of indemnification is not made within calendar 30 days
after a request for indemnification pursuant to Section 8 of this Agreement, the Indemnitee
shall be entitled to an adjudication in an appropriate court of the State of his entitlement to
such indemnification or advancement of Expenses. Alternatively, the Indemnitee, at his sole option,
may seek an award in arbitration to be conducted by a single arbitrator pursuant to the rules of
the American Arbitration Association.
(b) In the event that indemnification is requested pursuant to Section 8 of this
Agreement and such indemnification payment is not made within 30 calendar days after such request,
any judicial proceeding or arbitration commenced pursuant to this Section 10 shall be
conducted in all respects as a de novo trial or a de novo arbitration (as applicable) on the
merits, and the Indemnitee shall not be prejudiced by reason of the Company’s failure to make such
indemnification payment, regardless of the Company’s basis for refusing to make such payment. In
any judicial proceeding or arbitration commenced pursuant to this Section 10, the Company
shall have the burden of proving that the Indemnitee is not entitled to indemnification. If the
Indemnitee commences a judicial proceeding or arbitration pursuant to this Section 10, the
Indemnitee shall not be required to reimburse the Company for any advances pursuant to Section
7 until a final determination is made with respect to the Indemnitee’s entitlement to
indemnification (as to which rights of appeal have been exhausted or lapsed).
(c) The Company shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 10 that the procedures and presumptions of
this Agreement are not valid, binding and enforceable and shall stipulate in any such court or
before any such arbitrator that the Company is bound by all of the provisions of this Agreement.
(d) In the event that the Indemnitee, pursuant to this Section 10, seeks a
judicial adjudication or an award in arbitration to enforce his rights under, or to recover damages
for breach of, this Agreement, the Indemnitee shall be entitled to recover from the Company, and
shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred
by him in such judicial adjudication or arbitration, unless the court or arbitrator determines that
each of the Indemnitee’s claims in such Proceeding were made in bad faith or were frivolous. In the
event that a Proceeding is commenced by or in the right of the Company against the Indemnitee to
enforce or interpret any of the terms of this Agreement, the Indemnitee shall be entitled to
recover from the Company, and shall be indemnified by the Company against, any and all Expenses
actually and reasonably incurred by him in such Proceeding (including with respect to any
counter-claims or cross-claims made by the Indemnitee against the Company in such Proceeding),
unless the court or arbitrator determines that each of the Indemnitee’s material defenses in such
Proceeding were made in bad faith or were frivolous.
(e) Any judicial adjudication or arbitration determined under this Section 10
shall be final and binding on the parties.
Section 11. Defense of Certain Proceedings. In the event the Company shall be obligated
under this Agreement to pay the Expenses of any Proceeding against the Indemnitee in which the
Company is a co-defendant with the Indemnitee, the Company shall be entitled to assume the defense
of such Proceeding, with counsel approved by the Indemnitee, which approval shall not be
unreasonably withheld, conditioned, or delayed upon the
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delivery to the Indemnitee of written
notice of its election to do so. After delivery of such notice, approval of such counsel by the
Indemnitee and the retention of such counsel by the Company, the Indemnitee shall nevertheless be
entitled to employ or continue to employ his own counsel in such Proceeding. Employment of such
counsel by the Indemnitee shall be at the sole cost and expense of the Company unless and until the
Company shall have demonstrated to the reasonable satisfaction of the Indemnitee and the
Indemnitee’s counsel that there is complete identity of issues and defenses and no conflict of
interest between the Company and the Indemnitee in such Proceeding, after which time further
employment of such counsel by the Indemnitee shall be at the sole cost and expense of the
Indemnitee. In all events, if the Company shall not, in fact, have timely employed counsel to
assume the defense of such Proceeding, then the fees and Expenses of the Indemnitee’s counsel shall
be at the sole cost and expense of the Company.
Section 12. Exception to Right of Indemnification or Advancement of Expenses.
Notwithstanding any other provision of this Agreement, the Indemnitee shall not be entitled to
indemnification or advancement of Expenses under this Agreement with respect to any Proceeding, or
any claim therein, brought or made by the Indemnitee against:
(a) the Company, except for (i) any claim or Proceeding in respect of this Agreement and/or
the Indemnitee’s rights hereunder, (ii) any claim or Proceeding to establish or enforce a right to
indemnification under the Certificate, the Bylaws, the Stockholders Agreement, or under any statute
or law and (iii) any counter-claim or cross-claim brought or made by the Indemnitee against the
Company in any Proceeding brought by or in the right of the Company against the Indemnitee; or
(b) any other Person, except for Proceedings or claims approved by the Board.
Section 13. Contribution.
(a) If, with respect to any Proceeding, the indemnification provided for in this
Agreement is held by a court of competent jurisdiction to be unavailable to the Indemnitee by final
and non-appealable order for any reason other than that the Indemnitee did not act in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the Company
or, with respect to a criminal Proceeding, that the Indemnitee had reasonable cause to believe his
conduct was unlawful, the Company shall contribute to the amount of Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by the Indemnitee or on his
behalf in connection with such Proceeding or any claim, issue or matter therein in such proportion
as is appropriate to reflect the relative benefits received by the Indemnitee and the relative
fault of the Indemnitee versus the other defendants or participants in connection with the action
or inaction which resulted in such Expenses, judgments, penalties, fines and amounts paid in
settlement, as well as any other relevant equitable considerations.
(b) The Company and the Indemnitee agree that it would not be just and equitable if
contribution pursuant to this Section 13 were determined by pro rata or per capita
allocation or by any other method of allocation which does not take into account the equitable
considerations referred to in Section 13(a) above.
(c) No Person found guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act of 1933, as amended) shall be entitled to contribution from any Person
who was not found guilty of such fraudulent misrepresentation.
Section 14. Officer and Director Liability Insurance.
(a) The Company shall use all commercially reasonable efforts to obtain and maintain in
effect during the entire period for which the Company is obligated to indemnify the Indemnitee
under this Agreement, one or more policies of insurance with reputable insurance companies to
provide the directors and officers of the Company with coverage for losses from wrongful acts and
omissions and to ensure the Company’s performance of its indemnification obligations under this
Agreement. In all such insurance policies, the Indemnitee shall be named as an insured in such a
manner as to provide the Indemnitee with the same rights and benefits as are accorded to the most
favorably insured of the Company’s directors and officers. Notwithstanding the foregoing, the
Company shall have no obligation to obtain or maintain such insurance if the Company determines in
good faith that the Indemnitee is covered by such insurance maintained by a subsidiary of the
Company.
(b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors or officers of any other corporation, partnership, limited
liability company, joint venture,
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trust, employee benefit plan or other enterprise which the
Indemnitee serves at the request of the Company, the Indemnitee shall be named as an insured under
and shall be covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for the most favorably insured director or officer under
such policy or policies.
(c) In the event that the Company is a named insured under any policy or policies of
insurance referenced in either Section 14(a) or (b) above, the Company hereby
covenants and agrees that it will not settle any claims or Proceedings that may be covered by such
policy or policies of insurance and in which the Indemnitee has or may incur Expenses, judgments,
penalties, fines or amounts paid in settlement without the prior written consent of the Indemnitee.
(d) The Company shall maintain the policies of insurance verified in (a) through (c) above
during the time the Indemnitee has Corporate Status and for six (6) years following the Indemnitee
no longer having Corporate Status.
Section 15. Security. Upon reasonable request by the Indemnitee, the Company shall
provide security to the Indemnitee for the Company’s obligations hereunder through an irrevocable
bank letter of credit, funded trust or other similar collateral. Any such security, once provided
to the Indemnitee, may not be revoked or released without the prior written consent of the
Indemnitee, which consent may be granted or withheld at the Indemnitee’s sole and absolute
discretion.
Section 16. Settlement of Claims. The Company shall not be liable to indemnify the
Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected by
Indemnitee without the Company’s written consent, which consent shall not be unreasonably withheld.
Section 17. Duration of Agreement. This Agreement shall be unaffected by the termination
of the Corporate Status of the Indemnitee and shall continue for so long as the Indemnitee may have
any liability or potential liability by virtue of his Corporate Status or may be asked to serve as
a witness because of his Corporate Status, including, without limitation, the final termination of
all pending Proceedings in respect of which the Indemnitee is granted rights of indemnification or
advancement of Expenses hereunder and of any Proceeding commenced by the Indemnitee pursuant to
Section 10 of this Agreement relating thereto, whether or not he is acting or serving in
such capacity at the time any liability or Expense is incurred for which indemnification can be
provided under this Agreement. This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of
the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal
representatives.
Section 18. Remedies of the Company. The Company hereby covenants and agrees to submit
any and all disputes relating to this Agreement that the parties are unable to resolve between
themselves to binding arbitration pursuant to the rules of the American Arbitration Association and
waives all rights to judicial adjudication of any
matter or dispute relating to this Agreement except where judicial adjudication is requested
or required by the Indemnitee.
Section 19. Covenant Not to Xxx, Limitation of Actions and Release of Claims. No legal
action shall be brought and no cause of action shall be asserted by or on behalf of the Company (or
any of its subsidiaries) against the Indemnitee, his spouse, heirs, executors, personal
representatives or administrators after the expiration of two (2) years from the date on which the
Corporate Status of the Indemnitee is terminated (for any reason), and any claim or cause of action
of the Company (or any of its subsidiaries) shall be extinguished and deemed released unless
asserted by filing of a legal action within such two-year period; provided,
however, that the foregoing shall not apply to any action or cause of action brought or
asserted by the Company pursuant to or in respect of this Agreement and shall not constitute a
waiver or release of any of the Company’s rights under this Agreement.
Section 20. Limitation of Liability. Notwithstanding any other provision of this
Agreement, neither party shall have any liability to the other for, and neither party shall be
entitled to recover from the other, any consequential, special, punitive, multiple or exemplary
damages as a result of a breach of this Agreement.
Section 21. Subrogation. In the event of any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of recovery of the
Indemnitee, who shall execute all papers required
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and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the Company to bring suit
to enforce such rights.
Section 22. No Multiple Recovery. The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable hereunder if and to the extent that the
Indemnitee has otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
Section 23. Definitions. For purposes of this Agreement:
(a) “Affiliate” means, with respect to any Person, any other Person directly or
indirectly holding at least a twenty percent (20%) equity interest in such Person.
(b) “Company” means MetroPCS Communications, Inc., a Delaware corporation.
(c) “Corporate Status” describes the status of an individual who is or was an
officer, director or employee of the Company, or is or was serving at the request of the Company as
an officer, director, management committee member, employee, administrator, agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan,
strategic plan, or other enterprise.
(d) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(e) “Expenses” shall include all reasonable attorneys’ fees, retainers, appellate
fees and costs, court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees,
arbitrator’s fees, and all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend, investigating or being or
preparing to be a witness in a Proceeding.
(f) “Person” means a natural person, firm, partnership, joint venture,
association, corporation, company, limited liability company, trust, business trust, estate or
other entity.
(g) “Proceeding” includes any action, suit, hearings, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other proceeding whether
formal or informal, governmental or non-governmental, or civil, criminal, administrative or
investigative.
(h) “State” means the State of Texas.
Section 24. Non-Exclusivity. The Indemnitee’s rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other
rights to which the Indemnitee may at any time be entitled under applicable law, the Certificate,
the Bylaws, the Stockholders Agreement, any agreement, a vote of stockholders, a resolution of
directors or otherwise.
Section 25. Remedies Not Exclusive. No right or remedy herein conferred upon the
Indemnitee is intended to be exclusive of any other right or remedy, and every other right or
remedy shall be cumulative of and in addition to the rights and remedies given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment of any right or
remedy of the Indemnitee hereunder or otherwise shall not be deemed an election of remedies on the
part of the Indemnitee and shall not prevent the concurrent assertion or employment of any other
right or remedy by the Indemnitee.
Section 26. Changes in Law. In the event that a change in applicable law after the date
of this Agreement, whether by statute, rule or judicial decision, expands or otherwise increases
the right or ability of a Delaware corporation to indemnify a member of its board of directors or
an officer, the Indemnitee shall, by this Agreement, enjoy the greater benefits so afforded by such
change. In the event that a change in applicable law after the date of this Agreement, whether by
statute, rule or judicial decision, narrows or otherwise reduces the right or ability of a Delaware
corporation to indemnify a member of its board of directors or an officer, such change shall have
no effect on this Agreement or any of the Indemnitee’s rights hereunder, except and only to the
extent required by law.
Section 27. Interpretation of Agreement. The Company and the Indemnitee acknowledge and
agree that it is their intention that this Agreement be interpreted and enforced so as to provide
indemnification to the Indemnitee to the fullest extent now or hereafter permitted by law.
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Section 28. Severability. If any provision or provisions of this Agreement shall be held
to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to be invalid, illegal
or unenforceable) shall not in any way be affected or impaired thereby; (b) such provision or
provisions will be deemed reformed to the extent necessary to conform to applicable law and to give
maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not
itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision or provisions held invalid, illegal or unenforceable.
Section 29. Governing Law; Jurisdiction and Venue; Specific Performance.
(a) The parties agree that this Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of Delaware without giving effect to
any choice or conflict of law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction other than the State
of Delaware.
(b) ANY “ACTION OR PROCEEDING” (AS SUCH TERM IS DEFINED BELOW) ARISING OUT OF OR RELATING
TO THIS AGREEMENT SHALL BE FILED IN AND LITIGATED OR ARBITRATED SOLELY BEFORE THE COURTS LOCATED IN
OR ARBITRATORS SITTING IN DALLAS COUNTY IN THE STATE OF TEXAS, AND EACH PARTY TO THIS AGREEMENT:
(i) GENERALLY AND UNCONDITIONALLY ACCEPTS THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
ARBITRATORS AND VENUE THEREIN, AND WAIVES TO THE FULLEST EXTENT PROVIDED BY LAW ANY DEFENSE OR
OBJECTION TO SUCH JURISDICTION AND VENUE BASED UPON THE DOCTRINE OF “FORUM NON CONVENIENS;” AND
(ii) GENERALLY AND UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
BY DELIVERY OF CERTIFIED OR REGISTERED MAILING OF THE SUMMONS AND COMPLAINT IN ACCORDANCE WITH THE
NOTICE PROVISIONS OF THIS AGREEMENT. FOR PURPOSES OF THIS SECTION, THE TERM “ACTION OR
PROCEEDING” IS DEFINED AS ANY AND ALL CLAIMS, SUITS, ACTIONS, HEARINGS, ARBITRATIONS OR OTHER
SIMILAR PROCEEDINGS, INCLUDING APPEALS AND PETITIONS THEREFROM, WHETHER FORMAL OR INFORMAL,
GOVERNMENTAL OR NON-GOVERNMENTAL, OR CIVIL OR CRIMINAL. THE FOREGOING CONSENT TO JURISDICTION SHALL
NOT CONSTITUTE GENERAL CONSENT TO SERVICE OF PROCESS IN THE STATE FOR ANY PURPOSE EXCEPT AS
PROVIDED ABOVE, AND SHALL NOT BE DEEMED TO CONFER RIGHTS ON ANY PERSON OTHER THAN THE PARTIES TO
THIS AGREEMENT.
(c) The Company acknowledges that the Indemnitee may, as a result of the Company’s breach
of its covenants and obligations under this Agreement, sustain immediate and long-term substantial
and irreparable injury and damage which cannot be reasonably or adequately compensated by damages
at law. Consequently, the Company agrees that the Indemnitee shall be entitled, in the event of the
Company’s breach or threatened breach of its covenants and obligations hereunder, to obtain
equitable relief from a court of competent jurisdiction, including enforcement of each provision of
this Agreement by specific performance and/or temporary, preliminary and/or permanent injunctions
enforcing any of the Indemnitee’s rights, requiring performance by the Company, or enjoining any
breach by the Company, all without proof of any actual damages that have been or may be caused to
the Indemnitee by such breach or threatened breach and without the posting of bond or other
security in connection therewith. The Company waives the claim or defense therein that the
Indemnitee has an adequate remedy at law, and the Company shall not allege or otherwise assert the
legal position that any such remedy at law exists. The Company agrees and acknowledges that: (i)
the terms of this Section 29(c) are fair, reasonable and necessary to protect the
legitimate interests of the Indemnitee; (ii) this waiver is a material inducement to the Indemnitee
to enter into the transactions contemplated hereby; and (iii) the Indemnitee relied upon this
waiver in entering into this Agreement and will continue to rely on this waiver in its future
dealings with the Company. The Company represents and warrants that it has reviewed this provision
with its legal counsel, and that it has knowingly and voluntarily waived its rights referenced in
this Section 29 following consultation with such legal counsel.
Section 30. Nondisclosure of Payments. Except as expressly required by Federal securities
laws, the Company shall not disclose any payments under this Agreement without the prior written
consent of the Indemnitee. Any
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payments to the Indemnitee that must be disclosed shall, unless
otherwise required by law, be described only in the Company proxy or information statements
relating to special and/or annual meetings of the Company’s shareholders, and the Company shall
afford the Indemnitee a reasonable opportunity to review all such disclosures and, if requested by
the Indemnitee, to explain in such statement any mitigating circumstances regarding the events
reported.
Section 31. Notice by the Indemnitee. The Indemnitee agrees to promptly notify the
Company in writing upon being served with any summons, citation, subpoena, complaint, indictment,
information or other document relating to any Proceeding or matter which may be subject to
indemnification or advancement of Expenses covered hereunder.
Section 32. Notices. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and
received for by the party to whom said notice or other communication shall have been directed, or
(b) mailed by U.S. certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed: (i) If to the Company: MetroPCS Communications, Inc., 0000
Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: President; and (ii) if to any other
party hereto, including the Indemnitee, to the address of such party set forth on the signature
page hereof; or to such other address as may have been furnished by any party to the other(s), in
accordance with this Section 32.
Section 33. Modification and Waiver. No supplement, modification or amendment of this
Agreement or any provision hereof shall limit or restrict in any way any right of the Indemnitee
under this Agreement with respect to any action taken or omitted by the Indemnitee in his Corporate
Status prior to such supplement, modification or amendment. No supplement, modification or
amendment of this Agreement or any provision hereof shall be binding unless executed in writing by
both of the Company and the Indemnitee. No waiver of any provision of this Agreement shall be
deemed or shall constitute a wavier of any other provision hereof (whether or not similar) nor
shall such waiver constitute a continuing waiver.
Section 34. Headings. The headings of the Sections or paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this Agreement or to
affect the construction thereof.
Section 35. Gender. Use of the masculine pronoun in this Agreement shall be deemed to
include usage of the feminine pronoun where appropriate.
Section 36. Identical Counterparts. This Agreement may be executed in one or more
counterparts (whether by original, photocopy or facsimile signature), each of which shall for all
purposes be deemed to be an original, but all of which together shall constitute one and the same
Agreement. Only one such counterpart executed by the party against whom enforcement is sought must
be produced to evidence the existence of this Agreement.
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the
day and year first above written.
| METROPCS COMMUNICATIONS, INC. |
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| By: | ||||
Xxxxx X. Xxxxxxxx |
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Chairman of the Board, President and Chief Executive Officer |
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| INDEMNITEE |
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Name: |
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Address: |
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