Exhibit 10.34
FORM OF
ESCROW AGREEMENT
This ESCROW AGREEMENT ("Agreement") is entered into as of February __,
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 __, 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
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).
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(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 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,
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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.
(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
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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 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:
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Name:
Title:
UBIQUITEL OPERATING COMPANY
By:
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Name:
Title:
FIRST UNION NATIONAL BANK
By:
-------------------------------
Name:
Title:
XXXXXX XXXXXXXX & ASSOCIATES, L.P.
By:
-------------------------------
Name:
Title:
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XXXXXX X. XXXXXXXX
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XXXXXXX X. XXXXXXXX
X.X. XXXXX INC.
By:
-------------------------------
Name:
Title:
THE PONDEROSA TELEPHONE CO.
By:
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Name:
Title:
[SIGNATURE PAGE TO ESCROW AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this ESCROW AGREEMENT
as of the date first set forth above.
RCBM, LLC
By:
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Name:
Title:
RAMYAR, LLC
By:
-------------------------------
Name:
Title:
INSTANT PHONE, LLC
By:
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Name:
Title:
XXXXX FAMILY, INC.
By:
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Name:
Title:
KERMAN COMMUNICATIONS, INC.
By:
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Name:
Title:
XXXXXX FAMILY LIMITED PARTNERSHIP
By:
-------------------------------
Name:
Title:
S&K XXXXX FAMILY LIMITED PARTNERSHIP
By:
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Name:
Title:
[SIGNATURE PAGE TO ESCROW AGREEMENT]
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:
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Name: XXXX X. XXXXX
Title: TRUSTEE
X.X. XXXXX FAMILY LIMITED
PARTNERSHIP
By:
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Name: XXXX X. XXXXX
Title: GENERAL PARTNER
XXXX XXXXX VILAS 1990 TRUST
By:
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Name: XXXX X. XXXXX, XX.
Title: TRUSTEE
By:
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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]
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]
