exv10w1






Exhibit 10.1






INDEMNIFICATION AGREEMENT




     This Indemnification Agreement (“Agreement”) is made as of [•] by and between Leap
Wireless International, Inc., a Delaware corporation (the “Company”), and [•]
(“Indemnitee”). This Agreement supersedes and replaces any and all previous agreements
between the Company and Indemnitee covering the subject matter of this Agreement.



RECITALS




     WHEREAS, directors, officers and other persons in service to publicly-held corporations and
other business enterprises are being increasingly subjected to expensive and time-consuming
litigation relating to, among other things, matters that traditionally would have been brought only
against the corporation or business enterprise itself;



     WHEREAS, highly competent persons have become more reluctant to serve publicly-held
corporations as directors or in other capacities unless they are provided with adequate protection
through insurance and indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of the corporation;



     WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in
order to attract and retain qualified individuals to serve the Company, the Company will attempt to
maintain on an ongoing basis, at its sole expense, liability insurance to protect such persons;
however, the Board recognizes that although the furnishing of such insurance has been a customary
and widespread practice among U.S. corporations and other business enterprises, given current
market conditions and trends, such insurance may be available in the future only at higher premiums
and with more exclusions;



     WHEREAS, the General Corporation Law of the State of Delaware (the “DGCL”) permits,
and Article IV of the By-laws of the Company requires, indemnification of the officers and
directors of the Company; each expressly provides that the indemnification provisions set forth
therein are not exclusive, and thereby contemplate that contracts may be entered into between the
Company and members of the Board, officers and other persons with respect to indemnification;



     WHEREAS, in light of uncertainties relating to such insurance and to indemnification and the
resulting difficulty of attracting and retaining persons to serve the Company, the Board has
determined that the best interests of the Company and its stockholders would be served by assuring
such persons that there will be increased certainty of such protection in the future;



     WHEREAS, the Company previously entered into indemnifications agreement with its directors and
officers (collectively, the “Prior Indemnification Agreements”);



     WHEREAS, it is reasonable, prudent and necessary for the Company to continue to obligate
itself contractually to indemnify, and to advance expenses on behalf of, such persons to the
fullest extent permitted by applicable law so that they will serve or continue to serve the Company
free from undue concern that they will not be so indemnified; and



     WHEREAS, although this Agreement is a supplement to and in furtherance of the By-laws of the
Company (and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder), Indemnitee does not regard the protection available under his Prior
Indemnification Agreement, if any, the Company’s By-laws and insurance as adequate in the present



 









 




circumstances, and may not be willing to serve (or continue to serve) as a director or officer
without adequate protection, and the Company desires Indemnitee to serve and continue to serve in
such capacity; and




     WHEREAS, the parties hereto desire to supersede and replace any Prior Indemnification
Agreement entered into by and between the Company and Indemnitee.



     NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:



     Section 1. Services to the Company. Indemnitee agrees to serve, or continue to serve,
as a director or officer of the Company and/or, as applicable, its subsidiaries and any other
Enterprise for so long as Indemnitee is duly elected or appointed or until Indemnitee tenders his
resignation. Indemnitee may at any time and for any reason resign from such position. This
Agreement shall not be deemed an employment contract between the Company (or any of its
subsidiaries or any other Enterprise) and Indemnitee. The foregoing notwithstanding, this
Agreement shall continue in force after Indemnitee has ceased to serve as a director, officer,
employee and/or agent of the Company or any of its subsidiaries or other Enterprise as provided in
Section 16 hereof.



     Section 2. Certain Definitions. As used in this Agreement:



          (a) “Agent” shall mean any person who is or was a director, officer or employee of the
Company or other person authorized by the Company to act for the Company, to include any person
serving in such capacity as a director, officer, employee, fiduciary or other official of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other Enterprise (including any subsidiary of the Company) at the request of, for the convenience
of, or to represent the interests of the Company.




          (b) A “Change in Control” shall be deemed to occur upon the earliest to occur after
the date of this Agreement of any of the following events:





          i. Acquisition of Stock by Third Party. Any Person (as defined below) becomes the
Beneficial Owner (as defined below), directly or indirectly, of securities of the Company
representing twenty-five (25%) or more of the combined voting power of the Company’s then
outstanding securities unless the change in relative Beneficial Ownership of the Company’s
securities by any Person results solely from a reduction in the aggregate number of
outstanding shares of securities entitled to vote generally in the election of directors;




          ii. Change in Board of Directors. During any period of two (2) consecutive years (not
including any period prior to the execution of this Agreement), individuals who at the
beginning of such period constitute the Board, and any new director (other than a director
designated by a person who has entered into an agreement with the Company to effect a
transaction described in Sections 2(b)(i), 2(b)(iii) or 2(b)(iv)
hereof) whose election by the Board or nomination for election by the Company’s stockholders
was approved by a vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute at least a majority
of the members of the Board;




          iii. Corporate Transactions. The effective date of a merger or consolidation of the
Company with any other entity, other than a merger or consolidation which would result in
the voting securities of the Company outstanding immediately prior to such merger or



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consolidation continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 51% of the combined
voting power of the voting securities of the surviving entity outstanding immediately after
such merger or consolidation and with the power to elect at least a majority of the board of
directors or other governing body of such surviving entity;




          iv. Liquidation. The approval by the stockholders of the Company of a complete
liquidation of the Company or an agreement or series of agreements for the sale or
disposition by the Company of all or substantially all of the Company’s assets; or




          v. Other Events. There occurs any other event of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any
similar item on any similar schedule or form) promulgated under the Exchange Act (as defined
below), whether or not the Company is then subject to such reporting requirement.



     For purposes of this Section 2(b), the following terms shall have the following
meanings:




     (A) “Exchange Act” shall mean the Securities Exchange Act of
1934, as amended from time to time.




     (B) “Person” shall have the meaning as set forth in Sections
13(d) and 14(d) of the Exchange Act; provided, however, that Person shall
exclude (i) the Company, (ii) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, and (iii) any
corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of
the Company.




     (C) “Beneficial Owner” shall have the meaning given to such
term in Rule 13d-3 under the Exchange Act; provided, however, that
Beneficial Owner shall exclude any Person otherwise becoming a Beneficial
Owner by reason of the stockholders of the Company approving a merger of the
Company with another entity.



          (c) “Corporate Status” describes the status of a person who is or was a director,
officer, employee, fiduciary or agent of the Company or any other corporation, limited liability
company, partnership or joint venture, trust, employee benefit plan or other Enterprise, in which
capacity such person is or was serving at the request of, for the convenience of, or to represent
the interests of the Company.




          (d) “Disinterested Director” shall mean a director of the Company who is not and was
not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.




          (e) “Enterprise” shall mean the Company and any other corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan or other enterprise (including
any subsidiary of the Company) of which Indemnitee is or was serving as a director, officer,
employee, fiduciary or agent at the request of, for the convenience of, or to represent the
interests of the Company.




          (f) “Expenses” shall include all direct and indirect costs, fees and expenses of any
type or nature whatsoever, including all attorneys’ fees and costs, retainers, court costs,
transcript costs, fees of experts and other professionals, witness fees, travel expenses,
duplicating costs, printing and



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binding costs, telephone charges, postage, delivery service fees, fax transmission charges,
secretarial services, any federal, state, local or foreign taxes imposed on Indemnitee as a result
of the actual or deemed receipt of any payments under this Agreement, ERISA excise taxes and
penalties, and all other disbursements, obligations or expenses of the types customarily incurred
in connection with or as a result of prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a deponent or witness in, or otherwise participating in, a
Proceeding, including reasonable compensation for time spent by Indemnitee for which he is not
otherwise compensated by the Company or any third party. Expenses also shall include: (i) expenses
incurred in connection with any appeal resulting from any Proceeding, including the premium,
security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or
its equivalent, (ii) expenses incurred in connection with recovery under any Insurance Policies (as
defined below) maintained by the Company, regardless of whether Indemnitee ultimately is determined
to be entitled to such insurance recovery, and (iii) for purposes of Section 14(d),
expenses incurred by or on behalf of Indemnitee in connection with the interpretation, enforcement
or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise. Expenses,
however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or
fines against Indemnitee.




          (g) “Independent Counsel” shall mean a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is, nor in the past five (5) years
has been, retained to represent: (i) the Company or Indemnitee in any matter material to either
such party (other than with respect to matters concerning Indemnitee’s right to indemnification
under this Agreement, or of other indemnitees under similar indemnification agreements with the
Company), or (ii) any other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any law
firm or member of a law firm who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the
reasonable fees and expenses of the Independent Counsel referred to above and to indemnify such
counsel fully against any and all expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.




          (h) The term “Proceeding” shall include any threatened, pending or completed action,
suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution
process, investigation, inquiry, administrative hearing or any other actual, threatened or
completed proceeding, whether brought by or in the right of the Company or otherwise, and whether
of a civil, criminal, administrative, regulatory, legislative or investigative (formal or informal)
nature, including any appeal therefrom, in which Indemnitee was, is, will or might be involved as a
party, potential party, non-party witness or otherwise by reason of the fact that Indemnitee is or
was a director, officer, employee, fiduciary or agent of the Company and/or any other Enterprise,
by reason of any action taken by him (or a failure to take action by him) or of any action (or
failure to act) on his part while acting pursuant to his Corporate Status, in each case whether or
not serving in such capacity at the time any liability or Expense is incurred for which
indemnification, reimbursement, or advancement of Expenses can be provided under this Agreement.
If Indemnitee believes in good faith that a given situation may lead to or culminate in the
institution of a Proceeding, such situation shall be considered a Proceeding under this paragraph.




          (i) References to “fines” shall include any excise tax assessed with respect to any employee
benefit plan; references to “serving at the request of the Company” and similar references shall
include any service as a director, officer, employee, fiduciary or agent of the Company that
imposes duties on, or involves services by, such director, officer, employee, fiduciary or agent
with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner he reasonably believed to be in the best interests of the
participants and beneficiaries of an



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employee benefit plan shall be deemed to have acted in a manner “not opposed to the best
interests of the Company” as referred to in this Agreement.




     Section 3. Indemnity in Third-Party Proceedings. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee was, is, or is
threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or
in the right of the Company to procure a judgment in its favor. Pursuant to this Section
3, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against
all Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement (including
all interest, assessments and other charges paid or payable in connection with or in respect of
such Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement) actually
and reasonably incurred by Indemnitee or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Company and, in the case of a
criminal Proceeding, had no reasonable cause to believe that his conduct was unlawful. The parties
hereto intend that this Agreement shall provide to the fullest extent permitted by law for
indemnification in excess of that expressly permitted by statute, including any indemnification
provided by the Company’s Certificate of Incorporation, its By-Laws, vote of its stockholders or
Disinterested Directors (or any committee thereof), or applicable law.



     Section 4. Indemnity in Proceedings by or in the Right of the Company. The Company
shall indemnify Indemnitee in accordance with the provisions of this Section 4 if
Indemnitee was, is, or is threatened to be made, a party to or a participant in any Proceeding by
or in the right of the Company to procure a judgment in its favor. Pursuant to this Section
4, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against
all Expenses actually and reasonably incurred by him or on his behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the Company; provided,
however, that if applicable law so provides no indemnification for Expenses shall be made under
this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have
been finally adjudged by a court to be liable to the Company, unless and only to the extent that
the Delaware Court or any court in which the Proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnification for such Expenses that the
Delaware Court or such other court deems proper.



     Section 5. Indemnification for Expenses of a Party Who is Wholly or Partially
Successful. To the fullest extent permitted by applicable law and to the extent that Indemnitee
is a party to (or a participant in) and is successful, on the merits or otherwise, in any
Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or on his
behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all applicable claims,
issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by him or on his behalf in connection with or related to each
successfully resolved claim, issue or matter to the fullest extent permitted by law. For purposes
of this Section 5 and without limitation, the termination of any claim, issue or matter in
such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.



     Section 6. Indemnification For Expenses of a Witness. To the fullest extent permitted
by applicable law and to the extent that Indemnitee is, by reason of his Corporate Status, a
witness or otherwise asked to participate in any aspect of a Proceeding to which Indemnitee is not
a party, he shall



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be indemnified against all Expenses actually and reasonably incurred by him or on his behalf
in connection therewith.



     Section 7. Partial Indemnification. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of Expenses, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion thereof to which Indemnitee is entitled.



     Section 8. Additional Indemnification.



          (a) Notwithstanding any limitation in Sections 3, 4, or 5 hereof, the
Company shall indemnify Indemnitee to the fullest extent permitted by applicable law if Indemnitee
is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in
the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines
and amounts paid in settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such Expenses, judgments, fines and amounts paid in
settlement) actually and reasonably incurred by or on behalf of Indemnitee in connection with the
Proceeding.




          (b) For purposes of Section 8(a), the meaning of the phrase “to the fullest extent
permitted by applicable law” shall include, but not be limited to, the following:





          i. to the fullest extent permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding provision of any
amendment to or replacement of the DGCL, and




          ii. to the fullest extent authorized or permitted by any amendments to or replacements
of the DGCL adopted after the date of this Agreement that increase the extent to which a
Delaware corporation may indemnify its directors, officers, employees and agents.



     Section 9. Exclusions. Notwithstanding any other provision in this Agreement, the
Company shall not be obligated under this Agreement to indemnify Indemnitee in connection with any
claim against Indemnitee:



          (a) to the extent that payment has actually been made to or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect to any excess beyond the amount
actually received under any insurance policy or other indemnity provision or as otherwise set forth
in Section 15(f); or




          (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as
defined in Section 2(b) hereof) or similar provisions of state statutory law or common law,
or (ii) any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or
equity-based compensation or of any profits realized by Indemnitee from the sale of securities of
the Company, as required in each case under the Exchange Act (including any such reimbursements
that arise from an accounting restatement of the Company pursuant to Section 304 of the
Sarbanes-Oxley Act of 2002 (as amended, the “Sarbanes-Oxley Act”), or the payment to the
Company of profits arising from the purchase and sale by Indemnitee of securities in violation of
Section 306 of the Sarbanes-Oxley Act); or




          (c) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee,
including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the
Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized
the



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Proceeding (or any part of such Proceeding) prior to its initiation, (ii) such payment arises
in connection with any mandatory counterclaim or cross-claim that the Indemnitee asserts against
the Company or its directors, officers, employees or other indemnitees or any affirmative defense
Indemnitee raises, or (iii) the Company provides the indemnification, in its sole discretion,
pursuant to the powers vested in the Company under applicable law; provided, however, that this
Section 9(c) shall not apply to any claims related to the interpretation, enforcement or
defense of Indemnitee’s rights under this Agreement by litigation or otherwise, including as
provided in Sections 10 and 14(d) hereof.




     Section 10. Advances of Expenses. In furtherance and not in limitation of the
provisions of Article IV, Section 3 of the By-laws of the Company, and notwithstanding any other
provision of this Agreement to the contrary, the Company shall advance, to the extent not
prohibited by law, the Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding (or any part of any Proceeding) not initiated by Indemnitee, and such advancement shall
be made within thirty (30) days after the receipt by the Company of a statement or statements
requesting such advances from time to time, whether prior to or after final disposition of any
Proceeding; provided, however, that this Section 10 shall not affect Indemnitee’s right to
advancement of Expenses as provided in Section 14(d). Advances shall be unsecured and
interest free. Advances shall be made without regard to Indemnitee’s ability to repay the Expenses
and without regard to Indemnitee’s ultimate entitlement to be indemnified under the other
provisions of this Agreement. In accordance with Section 14(d), advances shall include any
and all reasonable Expenses incurred pursuing an action to enforce this right of advancement,
including Expenses incurred preparing and forwarding statements to the Company to support the
advances claimed. Indemnitee shall qualify for advances upon the execution and delivery to the
Company of this Agreement, which shall constitute an undertaking by Indemnitee to repay (without
interest) the amounts advanced to the extent that it is ultimately determined that Indemnitee is
not entitled to be indemnified by the Company, and no other form of undertaking shall be required
from Indemnitee other than the execution of this Agreement. This Section 10 shall not
apply to any claim made by Indemnitee for which indemnity is otherwise excluded pursuant to
Section 9.



     Section 11. Procedure for Notification and Defense of Claim.



          (a) Indemnitee shall notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as
reasonably practicable following the receipt by Indemnitee of written notice thereof or
Indemnitee’s becoming aware thereof (the “Indemnification Notice”). The Indemnification
Notice shall include a description of the nature of the Proceeding and the facts underlying the
Proceeding, in each case to the extent known to Indemnitee. To obtain indemnification under this
Agreement, Indemnitee shall also submit to the Company such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to determine whether and to what
extent Indemnitee is entitled to indemnification following the final disposition of such
Proceeding. The omission by Indemnitee to notify the Company hereunder will not relieve the
Company from any liability which it may have to Indemnitee under this Agreement or otherwise, and
any delay in so notifying the Company shall not constitute a waiver by Indemnitee of any rights
under this Agreement. The Secretary of the Company shall, promptly upon receipt of the
Indemnification Notice, advise the Board in writing that Indemnitee has requested indemnification
and/or advancement of Expenses.




          (b) The Company will be entitled to participate in the Proceeding at its own expense.




          (c) The Company shall not settle any action, claim or Proceeding (in whole or in part) which
would impose any Expense, judgment, fine, penalty or limitation on the Indemnitee against



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which Indemnitee is not entitled to be indemnified hereunder without the Indemnitee’s prior
written consent.




     Section 12. Procedure Upon Application for Indemnification.



          (a) Upon delivery of the Indemnification Notice by Indemnitee under Section 11(a), a
determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto
shall be made with respect to such request as follows: (i) by a majority vote of the Disinterested
Directors, even though less than a quorum of the Board, (ii) by a committee of Disinterested
Directors designated by a majority vote of the Disinterested Directors, even though less than a
quorum of the Board, (iii) if there are no such Disinterested Directors or, if such Disinterested
Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which
shall be delivered to Indemnitee or (iv) if so directed by the Board, by the stockholders of the
Company; provided, however, that, notwithstanding the foregoing, in all cases, Indemnitee shall
have the option, but not the obligation, to require, by delivery of a written request to the
Company, that the determination with respect to Indemnitee’s entitlement to indemnification
hereunder be made solely by Independent Counsel in a written opinion to the Board, a copy of which
shall be delivered to Indemnitee (in which case such request shall be made prior to any
determination by the Disinterested Directors (or any committee thereof) or prior to the submission
of such matter to a vote by the stockholders of the Company).




          (b) If it is determined pursuant to Section 12(a) hereof that Indemnitee is entitled
to indemnification, payment to Indemnitee shall be made within ten (10) days after such
determination. Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to Indemnitee’s entitlement to indemnification, including providing to
such person, persons or entity upon reasonable advance written request any documentation or
information that is not privileged or otherwise protected from disclosure and that is reasonably
available to Indemnitee and reasonably necessary to such determination. Any Expenses incurred by
or on behalf of Indemnitee in so cooperating with the person, persons or entity making such
determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee
harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any
determination that Indemnitee is or is not entitled to indemnification, including a description of
any reason or basis for which indemnification has been denied.




          (c) In the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be
selected as provided in this Section 12(c). If a Change in Control shall have occurred,
the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board, in which event the following sentence shall apply), and Indemnitee
shall give written notice to the Company advising it of the identity of the Independent Counsel so
selected and certifying that the Independent Counsel so selected meets the requirements of
“Independent Counsel” as defined in Section 2 of this Agreement. If a Change in Control shall not
have occurred and the determination with respect to Indemnitee’s entitlement to indemnification
hereunder is to be made by Independent Counsel pursuant to Section 12(a)(iii), the
Independent Counsel shall be selected by the Board, and the Company shall give written notice to
Indemnitee advising him of the identity of the Independent Counsel so selected and certifying that
the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in
Section 2 of this Agreement. In either event, Indemnitee or the Company, as the case may be, may,
within ten (10) days after such written notice of selection shall have been given, deliver to the
Company or to Indemnitee, as the case may be, a written objection to such selection; provided,
however, that such objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of “Independent Counsel” as defined in Section 2(g)
of this Agreement, and the



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objection shall set forth with particularity the factual basis of such assertion. Absent a
proper and timely objection, the person so selected shall act as Independent Counsel. If such
written objection is so made and substantiated, the Independent Counsel so selected may not serve
as Independent Counsel unless and until such objection is withdrawn or the Delaware Court has
determined that such objection is without merit. If, within twenty (20) days after the later of
(i) submission by Indemnitee of an Indemnification Notice pursuant to Section 11(a) hereof
and (ii) the final disposition of the Proceeding, no Independent Counsel shall have been selected
and not objected to, either the Company or Indemnitee may petition the Delaware Court for
resolution of any objection made by the Company or Indemnitee to the other’s selection of
Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such
court or by such other person as such court shall designate, and the person with respect to whom
all objections are so resolved or the person so appointed shall act as Independent Counsel under
Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).




          (d) If the Company disputes a portion of the amounts for which indemnification is requested,
the undisputed portion shall be paid and only the disputed portion withheld pending resolution of
any such dispute.




     Section 13. Presumptions and Effect of Certain Proceedings.



          (a) In making a determination with respect to entitlement to indemnification hereunder, the
person, persons or entity making such determination (including any Independent Counsel) shall, to
the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification
under this Agreement, and the Company shall, to the fullest extent not prohibited by law, have the
burden of proof to overcome that presumption in connection with the making by any person, persons
or entity of any determination contrary to that presumption. Neither the failure of the Company
(including by its directors or Independent Counsel) to have made a determination, at any time prior
to the commencement of any action pursuant to this Agreement, as to whether indemnification is
proper in the circumstances because Indemnitee has or has not met the applicable standard of
conduct, nor an actual determination by the Company (including by its directors or Independent
Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that Indemnitee has not met the applicable standard of conduct.




          (b) Subject to Section 14(e) (which section allows determination regarding
Indemnitee’s entitlement to indemnification under this Agreement to be deferred until following the
final disposition of the Proceeding), if the person, persons or entity empowered or selected under
Section 12 of this Agreement to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within sixty (60) days after receipt by the Company of the
Indemnification Notice from Indemnitee therefor, the requisite determination of entitlement to
indemnification shall, to the fullest extent not prohibited by law, be deemed to have been made and
Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee’s statement not
materially misleading, in connection with the request for indemnification, or (ii) a prohibition of
such indemnification under applicable law; provided, however, that such sixty (60)-day period may
be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person,
persons or entity making the determination with respect to entitlement to indemnification in good
faith requires such additional time for the obtaining or evaluating of documentation and/or
information relating thereto; provided, further, that the foregoing provisions of this Section
13(b) shall not apply (i) if the determination of entitlement to indemnification is to be made
by



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the stockholders pursuant to Section 12(a)(iv) of this Agreement and if (A) within
fifteen (15) days after receipt by the Company of the request for such determination the Board has
resolved to submit such determination to the stockholders for their consideration at an annual
meeting thereof to be held within seventy-five (75) days after such receipt and such determination
is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after
such receipt for the purpose of making such determination, such meeting is held for such purpose
within sixty (60) days after having been so called and such determination is made thereat, or (ii)
if the determination of entitlement to indemnification is to be made by Independent Counsel
pursuant to Section 12(a) of this Agreement.




          (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) in and of itself adversely affect the
right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that his conduct was unlawful.




          (d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise,
including financial statements, or on information supplied to Indemnitee by the directors or
officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the
Enterprise, or on information or records given or reports made to the Enterprise by an independent
certified public accountant or by an appraiser or other expert selected with the reasonable care by
the Enterprise. The provisions of this Section 13(d) shall not be deemed to be exclusive
or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement.




          (e) The knowledge and/or actions, or failure to act, of any other director, officer, agent or
employee of the Company or any other Enterprise shall not be imputed to Indemnitee for purposes of
determining Indemnitee’s right to indemnification under this Agreement.




     Section 14. Remedies of Indemnitee.



     (a) In the event that:




          i. a determination is made pursuant to Section 12(a) of this Agreement that
Indemnitee is not entitled to indemnification under this Agreement;




          ii. advancement of Expenses is not timely made pursuant to Section 10 of this
Agreement;




          iii. subject to Section 14(e) (which section allows determination regarding
Indemnitee’s entitlement to indemnification under this Agreement to be deferred until
following the final disposition of the Proceeding), no determination of entitlement to
indemnification shall have been made pursuant to Section 12(a) of this Agreement
within ninety (90) days after receipt by the Company of the Indemnification Notice, as
provided in Section 13(b);




          iv. payment of indemnification is not made pursuant to Section 5, 6 or
7, or the penultimate sentence of Section 12(b) of this Agreement within ten
(10) days after receipt by the Company of a written request therefor;



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          v. payment of indemnification pursuant to Section 3, 4 or 8 of
this Agreement is not made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification; or




          vi. the Company or any other person or Enterprise takes or threatens to take any action
to declare this Agreement void or unenforceable, or institutes any litigation or other
action or Proceeding designed to deny, or to recover from, Indemnitee the benefits provided
or intended to be provided to Indemnitee hereunder,


then, in any such event, Indemnitee shall be entitled to an adjudication by the Delaware Court of
his entitlement to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at
his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association. The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration. If requested by
Indemnitee, the Company shall use its best efforts to cause such adjudication or arbitration to be
considered and decided on an expedited basis by the Delaware Court or the arbitrator, as
applicable.




          (b) In the event that a determination shall have been made pursuant to Section 12(a)
of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 14 shall be conducted in all respects as a
de novo trial or arbitration on the merits and Indemnitee shall not be prejudiced by reason of that
adverse determination. In any judicial proceeding or arbitration commenced pursuant to this
Section 14 the Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.




          (c) If a determination shall have been made pursuant to Section 12(a) of this
Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to this Section
14, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material
fact necessary to make Indemnitee’s statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification under applicable law.




          (d) The Company shall, to the fullest extent not prohibited by law, be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14
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
the provisions of this Agreement. It is the intent of the Company that, to the fullest extent
permitted by law, Indemnitee not be required to incur legal fees or other Expenses associated with
the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by
litigation, arbitration or otherwise because the cost and expense thereof would substantially
detract from the benefits intended to be extended to Indemnitee hereunder. The Company shall, to
the fullest extent permitted by law, indemnify Indemnitee against any and all Expenses and, if
requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written
request therefor) advance, to the extent not prohibited by law, such Expenses to Indemnitee, which
are incurred by or on behalf of Indemnitee in connection with any action, proceeding or arbitration
brought by Indemnitee for indemnification or advance of Expenses from the Company under this
Agreement or under any directors’ and officers’ liability insurance policies maintained by the
Company.




          (e) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement of Indemnitee to indemnification under this Agreement shall be required to be made
prior to the final disposition of the Proceeding; provided however and for the avoidance of doubt
nothing in this




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Section 14(e) shall limit or postpone the obligations of the Company otherwise set
forth herein to advance Expenses.




     Section 15. Non-exclusivity; Survival of Rights; Insurance; Subrogation.



          (a) The rights of indemnification and to advancement of Expenses as provided by this Agreement
(i) shall not be deemed exclusive of any other rights to which Indemnitee may at any time be
entitled under applicable law, the Company’s Certificate of Incorporation, the Company’s By-laws,
any agreement, a vote of stockholders or a resolution of directors, or otherwise and (ii) shall be
interpreted independently of and without reference to any other such rights to which Indemnitee may
at any time be entitled or any limitation or constraint (whether procedural, substantive or
otherwise) in the exercise by Indemnitee of any other such rights. No amendment, alteration or
repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee
under this Agreement in respect of any action taken or omitted by Indemnitee in his Corporate
Status prior to such amendment, alteration or repeal. To the extent that a change in Delaware law,
whether by statute or judicial decision, permits greater indemnification or advancement of Expenses
than would be afforded currently under the Company’s Certificate of Incorporation, the Company’s
By-laws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by
virtue of this Agreement the greater benefits so afforded by such change. To the extent that a
change in Delaware law, whether by statute or judicial decision, narrows or limits indemnification
or advancement of Expenses that are afforded under the Company’s Certificate of Incorporation, the
Company’s By-laws or this Agreement, it is the intent of the parties hereto that such change,
except to the extent required by applicable law, shall have no effect on this Agreement or the
parties’ rights and obligations hereunder. No right or remedy herein conferred is intended to be
exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other right or remedy.




          (b) As long as Indemnitee shall continue to serve as a director and/or officer of the Company
or as a director, officer, employee, fiduciary or agent of any other Enterprise, and thereafter for
the duration of this Agreement specified in Section 16, the Company will purchase and
maintain in effect for the benefit of Indemnitee one or more valid, binding and enforceable
policies (the “Insurance Policies”) of directors’ and/or officers’ liability insurance
(“D&O Insurance”) providing liability coverage for Indemnitee’s acts in such capacities;
provided, however, that the Company shall not be required to pay with respect to such Insurance
Policies in respect of any one policy year more than 250% of the last annual premium paid by the
Company prior to the date hereof in respect of the coverages required to be obtained pursuant
hereto, but in such case shall purchase as much coverage as reasonably practicable for 250% of such
last annual premium. The Company shall promptly notify Indemnitee of any lapse, amendment or
failure to renew said policy or policies or any material provision thereof relating to the extent
or nature of coverage provided thereunder. To the extent that the Company maintains Insurance
Policies providing liability insurance for directors, officers, employees, fiduciaries or agents of
the Company or any other Enterprise, Indemnitee shall be covered by such policy in accordance with
its terms to the maximum extent of the coverage available for any such director, officer, employee,
fiduciary or agent under such policy. If, at the time of the receipt of an Indemnification Notice
pursuant to the terms hereof, the Company has D&O Insurance in effect, the Company shall give
prompt notice of such claim or of the commencement of a Proceeding, as the case may be, to the
applicable insurers in accordance with the procedures set forth in the applicable policy. The
Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on
behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the
terms of each such policy.




-12-









 








          (c) Except as set forth in Section 15(f), in the event of any payment under this
Agreement to or on behalf of Indemnitee, the Company shall be subrogated to the extent of such
payment to all of the rights of recovery of Indemnitee, who shall execute all papers required 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.




          (d) Except as set forth in Section 15(f), the Company shall not be liable under this
Agreement to or on behalf of Indemnitee to make any payment of amounts otherwise indemnifiable
(including Expenses for which advancement is provided hereunder) hereunder if and to the extent
that Indemnitee has otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.




          (e) Except as set forth in Section 15(f), the Company’s obligation to indemnify or to
advance Expenses hereunder to Indemnitee in connection with any claim related to Indemnitee’s
service as a director, officer, employee, fiduciary or agent of any Enterprise other than the
Company shall be reduced by any amount Indemnitee has actually received as indemnification or
advancement of Expenses with respect to such claim from such other Enterprise.




          (f) The Company hereby acknowledges that Indemnitee now or in the future may have certain
rights to indemnification, advancement of Expenses and/or insurance provided by a third party as to
which Indemnitee serves as a director, officer or employee other than the Company or any other
Enterprise (such third party, if applicable, a “Secondary Indemnitor”). The Company hereby
agrees that (i) it is the indemnitor of first resort with respect to the matters addressed in this
Agreement (i.e., its obligations to Indemnitee are primary and any obligation of a Secondary
Indemnitor, as applicable, to advance Expenses or to provide indemnification for the same Expenses
or liabilities incurred by or on behalf of Indemnitee are secondary to any such obligation of the
Company), (ii) it shall be liable for the full amount of all Expenses and liabilities to the extent
legally permitted and as required by the terms of this Agreement and the Certificate of
Incorporation or By-laws of the Company (or any other agreement between the Company and
Indemnitee), without regard to any rights Indemnitee may have against a Secondary Indemnitor, as
applicable, and (iii) it irrevocably waives, relinquishes and releases each Secondary Indemnitor,
as applicable, and Indemnitee from any and all claims (x) against such Secondary Indemnitor, as
applicable, for contribution, indemnification, subrogation or any other recovery of any kind in
respect of the matters addressed in this Section 15(f) and (y) that Indemnitee must seek
Expense advancement or reimbursement, or indemnification, from any Secondary Indemnitor, as
applicable, before the Company must perform its Expense advancement and reimbursement, and
indemnification obligations, under this Agreement. No advancement or payment by any Secondary
Indemnitor, as applicable, on behalf of Indemnitee with respect to any claim for which Indemnitee
has sought indemnification from the Company shall affect any of the foregoing. Each Secondary
Indemnitor, as applicable, shall be subrogated to the extent of such advancement or payment to all
of the rights of recovery which Indemnitee would have had against the Company if such Secondary
Indemnitor, as applicable, had not advanced or paid any amount to or on behalf of Indemnitee. If
for any reason a court of competent jurisdiction determines that a Secondary Indemnitor, as
applicable, is not entitled to the subrogation rights described in the immediately preceding
sentence, such Secondary Indemnitor, as applicable, shall have a right of contribution by the
Company to such Secondary Indemnitor, as applicable, with respect to any advance or payment by such
Secondary Indemnitor, as applicable, to or on behalf of Indemnitee. The Company and Indemnitee
agree that each Secondary Indemnitor, as applicable, is an express third party beneficiary of this
Section 15(f).




     Section 16. Duration of Agreement. This Agreement shall continue in full force and
effect until and terminate upon the later of: (a) ten (10) years after the date that Indemnitee
shall have ceased to



-13-









 




serve as a director, officer, employee, fiduciary and/or agent of the Company or any other
Enterprise, and (b) two (2) years after the final termination of any Proceeding then pending in
respect of which Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder (including any rights of appeal thereto) and of any proceeding commenced by Indemnitee
pursuant to Section 14 of this Agreement. The indemnification and advancement of Expenses
rights provided by or granted pursuant to this Agreement shall be binding upon and be enforceable
by the parties hereto and their respective successors and assigns (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), shall continue whether or not Indemnitee has ceased to be a
director, officer, employee, fiduciary or agent of the Company or of any other Enterprise, and
shall inure to the benefit of Indemnitee and his spouse, assigns, heirs, devisees, executors and
administrators and other legal representatives. The Company shall require any such successor or
assignee to, by written agreement, expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if no such succession
or assignment had taken place.




     Section 17. Amendments to Certificate of Incorporation or By-laws. Any amendments to
the Certificate of Incorporation or the By-laws of the Company that purport to reduce or eliminate
indemnification rights of Indemnitee thereunder shall have no effect with respect to this
Agreement, and Indemnitee shall continue to have all of the rights and benefits of this Agreement
despite any such amendments to the Certificate of Incorporation and/or the By-laws. However, if
the Certificate of Incorporation or the By-laws of the Company are amended to provide for greater
indemnification rights or privileges, this Agreement shall not be construed so as to limit
Indemnitee’s rights and privileges to the terms hereof, and Indemnitee shall be entitled to the
full benefit of any such additional rights and privileges.



     Section 18. 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 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 not in any way be
affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law;
(b) such provision or provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the 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 thereby.



     Section 19. Enforcement; Prior Indemnification Agreements.



          (a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to encourage Indemnitee to serve as a
director, officer, employee and/or agent of the Company and/or one or more other Enterprises, and
the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director,
officer, employee and/or agent of the Company and/or any of such other Enterprises.




          (b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof, including any Prior
Indemnification Agreement entered into by and between the Company and Indemnitee, which is hereby
terminated and cancelled; provided, however, that this Agreement is a supplement to and in
furtherance of



-14-









 






the Certificate of Incorporation of the Company, the By-laws of the Company, any D&O Insurance
policy maintained by the Company and applicable law, and shall not be deemed a substitute therefor,
nor to diminish or abrogate any rights of Indemnitee thereunder.




     Section 20. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the parties hereto. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provisions of this Agreement nor shall any waiver constitute a continuing waiver. In the event the
Company enters into an indemnification agreement with another director or officer of the Company
containing a term or terms more favorable to Indemnitee than the terms contained herein (as
determined by Indemnitee), Indemnitee shall be afforded the benefit of such more favorable term or
terms and such more favorable term or terms shall be deemed incorporated by reference herein as if
set forth in full herein.



     Section 21. Notice by Indemnitee. Indemnitee agrees promptly to 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 that is or may be subject to indemnification
or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company
shall not relieve the Company of any obligation which it may have to Indemnitee under this
Agreement or otherwise.



     Section 22. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by
hand and receipted for by the party to whom said notice or other communication shall have been
directed, (b) mailed by certified or registered mail with postage prepaid, on the third business
day after the date on which it is so mailed, (c) mailed by reputable overnight courier and
receipted for by the party to whom said notice or other communication shall have been directed, or
(d) sent by facsimile transmission, with receipt of oral confirmation that such transmission has
been received:


If to Indemnitee:



at the address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide to the Company in writing.



If to the Company to:



Leap Wireless International, Inc.

5887 Copley Drive

San Diego, CA 92111

Attention: President

Fascimile: (858) 882-6040



or to any other address as may have been furnished to Indemnitee by the Company in writing.




     Section 23. Contribution. To the fullest extent permissible under applicable law, if
the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by or on behalf of Indemnitee, whether for judgments, fines, penalties, excise taxes,
amounts paid or to be paid in settlement and/or Expenses, in connection with any Proceeding or
other claim relating to an indemnifiable event under this Agreement, in such proportion as is
deemed fair and reasonable in light of all of the circumstances of such Proceeding or other claim
in order to reflect (a) the relative benefits received by the



-15-









 




Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such
Proceeding; and/or (b) the relative fault of the Company (and its directors, officers, employees
and agents) and Indemnitee in connection with such event(s) and/or transaction(s).




     Section 24. Applicable Law and Consent to Jurisdiction. This Agreement and the legal
relations among the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without regard to its conflict of laws rules. Except with
respect to any arbitration commenced by Indemnitee pursuant to Section 14(a) of this
Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (a) agree that any
action or proceeding arising out of or in connection with this Agreement shall be brought only in
the Chancery Court of the State of Delaware (the “Delaware Court”), and not in any other
state or federal court in the United States of America or any court in any other country, (b)
consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or
proceeding arising out of or in connection with this Agreement, (c) appoint, to the extent such
party is not otherwise subject to service of process in the State of Delaware, Corporation Service
Company, 2711 Centerville Road, Wilmington, Delaware 19808 irrevocably as its agent in the State of
Delaware as such party’s agent for acceptance of legal process in connection with any such action
or proceeding against such party with the same legal force and validity as if served upon such
party personally within the State of Delaware, (d) waive any objection to the laying of venue of
any such action or proceeding in the Delaware Court, and (e) waive, and agree not to plead or to
make, any claim that any such action or proceeding brought in the Delaware Court has been brought
in an improper or inconvenient forum, or is subject (in whole or in part) to a jury trial.



     Section 25. Construction



          (a) The section and subsection headings contained in this Agreement are solely for the purpose
of reference and convenience, are not part of the agreement of the parties, and shall not in any
way limit, modify or otherwise affect the meaning or interpretation of this Agreement.




          (b) References to “Sections” or “Articles” refer to corresponding Sections or Articles of this
Agreement unless otherwise specified.




          (c) Unless the context requires otherwise, the words “include,” “including” and variations
thereof mean without limitation, the words “hereof,” “hereby,” “herein,” “hereunder” and similar
terms refer to this Agreement as a whole and not any particular section or article in which such
words appear, any reference to a law shall include any amendment thereof or any successor thereto
and any rules and regulations promulgated thereunder, and the word “or” shall be disjunctive but
not exclusive.




          (d) Unless the context requires otherwise, words in the singular include the plural, words in
the plural include the singular, and words importing any gender shall be applicable to all genders.




     Section 26. Counterparts; Facsimile Signatures. This Agreement may be executed in two
or more counterparts, each of which shall for all purposes be deemed to be an original but all of
which, taken together, shall constitute one and the same Agreement. Only one such counterpart
signed by the party against whom enforceability is sought needs to be produced to evidence the
existence of this Agreement. This Agreement may be executed and delivered by facsimile or email
transmission of a file in “.pdf” or similar format and upon such delivery, each signature shall be
deemed to have the same effect as if the original signature had been delivered to the other party.



Signature page follows.




-16-









 








     IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.



	 	 	 	 	 
	 	LEAP WIRELESS INTERNATIONAL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	INDEMNITEE

 	 
	  	 	 
	 	Printed Name:  	 	 
	 	Address: