AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT dated as of November 3, 2003

Exhibit 10.3(b)

 

AMENDMENT NO. 3 TO

AMENDED AND RESTATED STOCKHOLDERS AGREEMENT

 

dated as of November 3, 2003

 

Reference is hereby made to the AMENDED AND RESTATED STOCKHOLDERS AGREEMENT dated as of July 17, 2000, as amended by Amendment No. 1 thereto dated as of November 13, 2000, and as further amended by Amendment No. 2 thereto dated as of January 4, 2001 (as so amended, the “Stockholders Agreement”), by and among MetroPCS, Inc., a Delaware corporation (together with any successor thereto, the “Company”), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇▇”), ▇. ▇▇▇▇▇▇ ▇▇▇▇ (“▇▇▇▇,” and together with ▇▇▇▇▇▇▇▇, the “Class A Stockholders”), the stockholders listed on Schedule 1 thereto (the “Class B Stockholders”), the stockholders listed on Schedule 2 thereto (the “Class C Stockholders”), the stockholders listed on Schedule 3 thereto (the “Series C Preferred Stockholders”) and the stockholders listed on Schedule 4 thereto (the “Series D Preferred Stockholders,” and together with the Class A Stockholders, Class B Stockholders, Class C Stockholders, and Series C Preferred Stockholders, the “Stockholders”).

 

This AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT dated as of November 3, 2003 (this “Amendment No. 3”) among the Company and the Stockholders is entered into pursuant to Section 7.1 of the Stockholders Agreement for the purpose of modifying and adding certain provisions of and to the Stockholders Agreement. Initially capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Stockholders Agreement, including Annex A thereto.

 

WHEREAS, the Company and the Stockholders desire to amend the Stockholders Agreement to (i) provide that notices and communications provided for under the Stockholders Agreement may be sent by electronic mail and/or electronic mail attachment and (ii) provide that each Stockholder will maintain the confidentiality of any Confidential Information (as defined below) disclosed to such Stockholder.

 

NOW THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth, the parties hereto agree as follows:

 

ARTICLE I

AMENDMENTS TO STOCKHOLDERS AGREEMENT

 

Section A. Notices and Demands. Section 7.6 of the Stockholders Agreement is hereby amended and restated in its entirely to read as follows:

 

“Section 7.6 Notices and Demands. Any notice, demand or other communication which is required or provided to be given under this Agreement shall be in writing and shall be deemed to have been sufficiently given and received for all purposes when delivered by hand, electronic mail transmission (including without limitation electronic mail attachment), telecopy, telex or other method of facsimile, or five days after being sent by certified or registered mail, postage and charges prepaid, return receipt requested, or two days after being sent by overnight delivery providing

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Page 1

---

receipt of delivery. Any such notice, demand or other communication must be sent as follows:

 

if to the Company, to:

 

MetroPCS, Inc.

▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇

▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Financial Officer

Telephone: (▇▇▇) ▇▇▇-▇▇▇▇

Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇

email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇

 

with a copy to (which shall not constitute notice):

 

▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP

▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇▇ Havre, Esq.

Telephone: (▇▇▇) ▇▇▇-▇▇▇▇

Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇

email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇

 

if to a Stockholder, to:

 

the mailing address, telecopy number and/or email address for notice as set forth in the books and records of the Company,

 

or, in the case of any party, at such other address, telecopy number and/or email address as such party shall specify in a written notice delivered to all other parties to this Agreement in accordance with this Section.”

 

Section B. Confidential Information. Article VII of the Stockholders Agreement is hereby amended by adding the following Section 7.11 at the end thereof:

 

“Section 7.11 Confidential Information.

 

(a) For the purposes of this Section 7.11, “Confidential Information” means all information regarding the Company or any subsidiary or affiliate thereof, disclosed to any Stockholder, provided that such term does not include information that (i) was publicly known or otherwise known to such Stockholder prior to the time of such disclosure, (ii) subsequently becomes publicly known through no act or omission by such Stockholder or any person acting on such Stockholder’s behalf, or (iii) otherwise becomes known to such Stockholder other than through disclosure by the Company or any subsidiary or affiliate thereof.

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Page 2

---

(b) Each Stockholder will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by it in good faith to protect confidential information of third parties delivered to it, provided that such Stockholder may deliver or disclose Confidential Information to (i) its directors, trustees, officers, employees, agents, attorneys and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by the shares of the Company’s capital stock held by such Stockholder), (ii) its financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 7.11, (iii) any other Stockholder party to this Agreement, (iv) any federal or state regulatory authority having jurisdiction over such Stockholder, or (v) any other person to which such delivery or disclosure may be necessary or appropriate (x) to effect compliance with any law, rule, regulation or order applicable to such Stockholder, (y) in response to any subpoena or other legal process, or (z) in connection with any litigation to which such Stockholder is a party.”

 

ARTICLE II

MISCELLANEOUS

 

Section A. Ratification & Conflicts. The Stockholders Agreement as amended by this Amendment No. 3 is ratified and confirmed, and shall remain in full force and effect. In the event of any conflict between the terms of the Stockholders Agreement and this Amendment No. 3, the terms and provisions of this Amendment No. 3 shall govern and control.

 

Section B. Effectiveness. Subject to Section 7.1 of the Stockholders Agreement, this Amendment No. 3 shall be effective as of the date first set forth above.

 

Section C. Counterparts. This Amendment No. 3 may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.

 

[SIGNATURE PAGES FOLLOW]

 

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Page 3

---

IN WITNESS WHEREOF, the parties have executed this AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT as of the date first above written.

 

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Signature Page

---

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Signature Page

---

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Signature Page

---

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Signature Page

---

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Signature Page

---

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Signature Page

---

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Signature Page

---

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Signature Page

---

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Signature Page

---

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Signature Page

---

 

AMENDMENT NO. 3 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT – Signature Page