Exhibit 10.33
ESCROW AGREEMENT
This ESCROW AGREEMENT ("Agreement") is entered into as of August 9, 2001
("Closing Date"), by and among UbiquiTel Inc., a Delaware corporation
("UbiquiTel Parent"), UbiquiTel Operating Company, a Delaware corporation and
wholly-owned subsidiary of UbiquiTel Parent ("UbiquiTel"); First Union National
Bank, a national banking association ("Escrow Agent"); Xxxxxx Xxxxxxxx &
Associates, L.P., a California limited partnership ("Selling Member"); and
Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx (collectively, the "Xxxxxxxx Group");
the stockholders of X.X. Evans Co., a California corporation ("Xxxxx") whose
names appear on the signature page hereto (the "Xxxxx Stockholders" and
collectively the "Xxxxx Group"); The Ponderosa Telephone Co., a California
corporation ("PTC"); Instant Phone, LLC, a California limited liability company,
Ramyar, LLC, a California limited liability company, and RCBM, LLC, a California
limited liability company (collectively the "PCS Group"); Xxxxx Family, Inc., a
California corporation ("Xxxxx"); Kerman Communications, Inc., a California
corporation, Xxxxxx Family Limited Partnership, a California family limited
partnership; and S&K Xxxxx Family Limited Partnership, a California family
limited partnership (collectively, the "Kerman Group"). The Xxxxxxxx Group, the
Xxxxx Group, PTC, the PCS Group, Xxxxx, and the Kerman Group are referred to
individually as an "Indemnitor" and collectively as "Indemnitors."
RECITALS
A. UbiquiTel Parent, UbiquiTel, the Merger Subs, LLC, the Members, and
the Stockholders entered into a Merger Agreement dated as of February 22,
2001 ("Merger Agreement") pursuant to which UbiquiTel Parent will acquire
all of the Members' Interests. Capitalized terms used in this Agreement and
not otherwise defined in this Agreement have the meanings ascribed to them
in the Merger Agreement unless the context requires otherwise.
B. This Escrow Agreement is entered into pursuant to the Merger
Agreement.
NOW, THEREFORE, the parties agree as follows:
1. DEPOSIT OF UBIQUITEL STOCK.
(a) Concurrent with the Closing, each Indemnitor shall deposit into an
account (the "Escrow Account") with the Escrow Agent the number of shares of
UbiquiTel Parent common stock, par value $.0005 per share ("Stock") set
forth opposite such Indemnitor's name on Exhibit A. The Stock deposited
hereby, together with the proceeds thereof and any dividends paid or
interest earned thereon, are referred to as the "Escrow Fund." The shares of
Stock deposited into escrow by each Indemnitor shall be maintained in a
separate subaccount ("Subaccount(s)") for such Indemnitor. The
"Proportionate Interest" of each Indemnitor shall be a fraction the
numerator of which is the initial value of the shares of Stock in the
Subaccount of such Indemnitor as shown on Exhibit A (the "Initial Value")
and the denominator of which is the total Initial Value of all shares of
Stock in the Subaccounts of all Indemnitors as shown on Exhibit A. The
Proportionate Interest shall be fixed as of the date of the Closing Date and
shall not vary thereafter.
(b) The shares of Stock deposited into the Escrow Account shall be
shares subject to the 180-day lock-up period specified in the Lock-up
Agreement.
(c) An Indemnitor may at any time or from time to time, and upon notice
to UbiquiTel, instruct the Escrow Agent to sell shares of Stock in such
Indemnitor's Subaccount. If such shares are not then subject to the Lock-Up
Agreement, and the sale will not violate applicable securities
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laws or UbiquiTel Parent policies with respect to xxxxxxx xxxxxxx, UbiquiTel
shall authorize the Escrow Agent to sell the Stock, in which case the Escrow
Agent shall sell the Stock, retain in the Indemnitor's Subaccount such
proceeds as shall equal $ per share multiplied by the number of
shares sold, and deliver any balance (less brokerage commissions and any
charges of the Escrow Agent) to the Indemnitor.
(d) If at any time the amount of cash held in an Indemnitor's Subaccount
equals the Initial Value of such Indemnitor's Subaccount, then, at the
request of such Indemnitor, the Escrow Agent shall immediately release to
such Indemnitor from its Subaccount any and all Stock held and any and all
cash held in excess of cash in the amount of the Initial Value.
2. INVESTMENT OF THE ESCROW FUND. Any cash that may from time to time be
part of the Subaccounts, and all interest earned thereon shall be invested by
the Escrow Agent at the written direction of each Indemnitor, provided, however
that no investment or reinvestment may be made except in the following:
(a) direct general obligations of, or obligations the payment of
principal of and interest on which are unconditionally guaranteed by, the
United States of America or any agency thereof, maturing within six months
from the date of purchase;
(b) certificates of deposit or other evidences of indebtedness issued by
any bank or savings institution which is insured by the Federal Deposit
Insurance Corporation, maturing within six months from the date of purchase,
provided that such certificates of deposit or evidences of indebtedness, to
the extent they exceed the amounts covered by such insurance, are fully
secured by obligations described in clause (a) above;
(c) prime commercial paper of companies whose commercial paper is rated
A-1 or P-1 by Moody's or Standard & Poor's; and
(d) any money market fund substantially all of which is invested in the
foregoing investment categories.
(e) If Escrow Agent has not received written direction at any time with
respect to the investment of cash in a Subaccount, the cash in such
Subaccount or such portion thereof as to which no written direction has been
received, shall be invested in investments described in (d) above. All
assets held under this Agreement shall be registered in the name of Escrow
Agent.
3. DIVIDENDS. Cash dividends on shares of Stock paid to the Escrow Agent
with respect to Stock held in Subaccounts shall be distributed to the
Indemnitors entitled thereto. Any dividend payable in shares of Stock (whether
in the nature of a stock split, stock dividend or recapitalization), shall be
added to the Subaccounts and become part of the Escrow Amount.
4. DUTIES OF THE ESCROW AGENT.
(a) The Escrow Agent shall receive, hold and invest the Escrow Fund
pursuant to the terms of this Agreement. On the first anniversary of the
Closing under the Merger Agreement, the Escrow Agent shall promptly deliver
to each Indemnitor the cash and shares of Stock then held in such
Indemnitor's Subaccount less the amounts (if any) reserved against claims
made by UbiquiTel pursuant to Section 4(c).
(b) At any time prior to the first anniversary date of the Members'
Closing, UbiquiTel may give the Escrow Agent and the Indemnitors written
notice of any claim for indemnification of Losses under Section
12.2(a)(i) of the Merger Agreement (a "Claim"), which notice (the "Claim
Notice") shall describe with particularity the facts on which the Claim is
based and the amount (reasonably estimated if necessary), of the Claim. Upon
receiving a Claim Notice, the Escrow
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Agent shall reserve from each of the Subaccounts, in accordance with the
Proportionate Interests, the amount of the Claim set forth in the Claim
Notice.
(c) The Indemnitors shall, within fifteen days after receiving a Claim
Notice, notify the Escrow Agent and UbiquiTel in writing whether they
acknowledge that the Claim is valid, or dispute the validity of the Claim,
or acknowledge that the Claim is valid in part. If the Indemnitors
acknowledge that the Claim is valid, in whole or in part, then five
(5) days thereafter, the Escrow Agent shall pay to UbiquiTel from the Escrow
Fund (charging each Subaccount its Proportionate Interest) the amount
reserved for that Claim, or so much of that amount as is undisputed. During
such five (5) day period, the Indemnitors shall be entitled to sell shares
of Stock (in the manner and subject to the limitations, set forth in Section
1) in order to fund payment of the Claim. If the Escrow Agent is obligated
to pay any Claim hereunder, the amount of such Claim shall be paid in
accordance with the Proportionate Interest, first from cash held in the
Indemnitors Subaccounts, and next from any Stock held in the Indemnitors
Subaccounts. If the Indemnitors dispute the validity of a Claim, in whole or
in part, the Escrow Agent shall continue to reserve an amount of the Escrow
Fund equal to the amount specified in that Claim Notice (or such lesser
amount as is in dispute) until the Escrow Agent receives either (i) a joint
written direction from UbiquiTel, and the Indemnitors with respect to the
disposition of the Claim or (ii) an order from a court of competent
jurisdiction directing disbursement.
5. OPERATIONS. The Indemnitors, UbiquiTel Parent and UbiquiTel hereby
agree with the Escrow Agent that:
(a) The Escrow Agent shall have no duties or responsibilities except as
expressly provided for in this Agreement.
(b) The Escrow Agent shall not be responsible for the identity,
authority or rights of any person, firm or corporation executing or
delivering or purporting to execute or deliver this Agreement or any
document or security deposited hereunder or any endorsement thereon or
assignment thereof.
(c) The Escrow Agent shall not be responsible for the sufficiency,
genuineness or validity of or title to any document or security deposited or
to be deposited with it pursuant to this Agreement or of any endorsement
thereon or assignment thereof.
(d) The Escrow Agent may rely upon any instrument or writing believed by
it to be genuine and sufficient and properly presented, and shall not be
liable or responsible for any action taken or omitted in accordance with the
provisions thereof.
(e) The Escrow Agent shall not be liable or responsible for any act it
may do or omit to do in the exercise of reasonable care.
(f) In case any property held by the Escrow Agent hereunder shall be
attached, garnished or levied upon under any order of any court or the
delivery thereof shall be stayed or enjoined by any order of any court, or
any other order, judgment or decree shall be made or entered by any court
affecting such property or any part thereof or any acts of the Escrow Agent
(collectively an "Action"), the Escrow Agent is hereby authorized, in its
exclusive discretion, and after reasonable advanced written notice to the
Stockholders, Selling Member and to UbiquiTel, to obey and comply with all
writs, orders, judgments, or decrees so entered or issued, whether with or
without jurisdiction, and, if the Escrow Agent obeys and complies with any
such writ, order, judgment or decree, it shall not be liable to any of the
parties hereto, their successors, heirs or personal representatives or to
any other person, firm or corporation, by reason of such compliance
notwithstanding such writ, order, judgment or decree be subsequently
reversed, modified, annulled, set aside or vacated. The Escrow Agent shall
notify the Indemnitors promptly upon the occurrence of any Action.
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(g) UbiquiTel Parent, UbiquiTel, the Stockholders and Selling Member
jointly and severally agree to indemnify and hold Escrow Agent harmless from
any and all costs, expenses, claims, losses, liabilities and damages
(including reasonable attorneys' fees) that may arise out of or in
connection with Escrow Agent's acting as Escrow Agent under the terms of
this Escrow Agreement, except in those instances where Escrow Agent has been
guilty of gross negligence or willful misconduct.
6. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, and no
other persons shall have any rights herein.
(b) This Agreement may be executed and endorsed in one or more
counterparts and each of such counterparts shall, for all purposes, be
deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
(c) All fees and expenses of the Escrow Agent hereunder shall be paid by
one-half by UbiquiTel and one-half by the Indemnitors, provided that all
fees and expenses reasonably incurred by the Escrow Agent in connection with
any litigation hereunder shall be paid by the party obligated for the cost
of such litigation.
(d) A successor Escrow Agent may be appointed at any time by mutual
agreement of the Stockholders, Selling Member and UbiquiTel.
(e) The Escrow Agent agrees to hold the assets of the Escrow Fund in
segregated and separate Subaccounts, outside the reach of its general
creditors.
(f) Any notice, statement or other communication which is required
hereunder, including Claim Notices, shall be in writing and shall be
sufficient in all respects if delivered in the manner and to the addresses
stated in the Merger Agreement, except that any notice to the Escrow Agent
shall be given to: First Union National Bank, Attention: Corporate Trust
Department, 000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx 00000.
(g) The validity, enforcement and construction of this Agreement shall
be governed by the laws of the State of Delaware and all disputes hereunder
shall be brought in the federal or state courts of that State.
(h) Each of the parties hereto agrees to cooperate with the other
parties hereto in effectuating this Agreement and to execute and deliver
such further documents or instruments and to take such further actions as
shall be reasonably requested in connection therewith.
(i) If any one or more provisions in this Agreement, for any reason,
shall be determined to be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of any such provision in any other
respect and the remaining provisions of this Agreement shall not be in any
way impaired.
(j) The Escrow Agent may resign as such by delivering written notice to
that effect at least 30 days prior to effective date of such resignation to
UbiquiTel, the Stockholders and the Selling Member. UbiquiTel, the
Stockholders and the Selling Member, acting jointly, may terminate the
Escrow Agent from its position as such by delivering to the Escrow Agent
written notice to that effect executed by UbiquiTel, the Stockholders and
the Selling Member at least 30 days prior to the effective date of such
termination. In the event of such resignation or termination of the Escrow
Agent, a successor Escrow Agent shall be appointed by mutual agreement
between UbiquiTel, the Stockholders and the Selling Member. From and after
the appointment of a
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successor Escrow Agent pursuant to this Section 6(j), all references herein
to the Escrow Agent shall be deemed to be to such successor Escrow Agent.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the undersigned have executed this ESCROW AGREEMENT as
of the date first set forth above.
UBIQUITEL INC.
By:
-----------------------------------------
Name:
Title:
UBIQUITEL OPERATING COMPANY
By:
-----------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
-----------------------------------------
Name:
Title:
XXXXXX XXXXXXXX & ASSOCIATES, L.P.
By:
-----------------------------------------
Name:
Title:
-----------------------------------------
XXXXXX X. XXXXXXXX
-----------------------------------------
XXXXXXX X. XXXXXXXX
X.X. XXXXX INC.
By:
-----------------------------------------
Name:
Title:
THE PONDEROSA TELEPHONE CO.
By:
-----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO
ESCROW AGREEMENT]
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IN WITNESS WHEREOF, the undersigned have executed this
ESCROW AGREEMENT as
of the date first set forth above.
RCBM, LLC
By:
-----------------------------------------
Name:
Title:
RAMYAR, LLC
By:
-----------------------------------------
Name:
Title:
INSTANT PHONE, LLC
By:
-----------------------------------------
Name:
Title:
XXXXX FAMILY, INC.
By:
-----------------------------------------
Name:
Title:
KERMAN COMMUNICATIONS, INC.
By:
-----------------------------------------
Name:
Title:
XXXXXX FAMILY LIMITED PARTNERSHIP
By:
-----------------------------------------
Name:
Title:
S&K XXXXX FAMILY LIMITED PARTNERSHIP
By:
-----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO
ESCROW AGREEMENT]
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IN WITNESS WHEREOF, the undersigned have executed this
ESCROW AGREEMENT as
of the date first set forth above.
IRREVOCABLE TRUST UNDER THE WILL OF XXXX X.
XXXXX
By:
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Trustee
X.X. XXXXX FAMILY LIMITED PARTNERSHIP
By:
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: General Partner
XXXX XXXXX VILAS 1990 TRUST
By:
-----------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Trustee
By:
-----------------------------------------
Name: Xxxxx Xxxx Xxxxxx
Title: Trustee
THE XXX AND XXXXX XXXXXX CHARITABLE REMAINDER
TRUST II
By:
-----------------------------------------
Name: Xxx Xxxxxx
Title: Trustee
By:
-----------------------------------------
Name: Xxxxx Xxxx Xxxxxx
Title: Trustee
By:
-----------------------------------------
Name: Xxx Xxxxxx
Title: Special Trustee
[SIGNATURE PAGE TO
ESCROW AGREEMENT]
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IN WITNESS WHEREOF, the undersigned have executed this ESCROW AGREEMENT as
of the date first set forth above.
THE XXXX AND XXXXX XXXXX CHARITABLE REMAINDER
TRUST II
By:
-----------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Trustee
By:
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Trustee
By:
-----------------------------------------
Name: Xxx Xxxxxx
Title: Special Trustee
[SIGNATURE PAGE TO ESCROW AGREEMENT]
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