Exhibit 10.10
AGREEMENT AND PLAN OF REORGANIZATION
AND CORPORATION SEPARATION
This AGREEMENT is made this ______ day of January, 2000 between
Xxxxxx Communications Corporation, an Oklahoma corporation ("XXXXXX"), and
Logix Communications Enterprises, Inc., an Oklahoma corporation ("LOGIX").
WHEREAS, Xxxxxx owns all the stock of Logix; and
WHEREAS, it is the desire of Xxxxxx to separate the business of Logix
and its subsidiaries, Logix Communications Corporation, Xxxxxx Telephone
Company, Inc. (also known as XxXxxxx Telephone Company), Xxxxxx FIBER/XXXXX
of Colorado, Inc., from the business of Xxxxxx; and
WHEREAS, it is the parties' intention that, effective upon the
Closing (as hereinafter defined), (i) Xxxxxx shall assume and accept or
retain responsibility for the Xxxxxx Liabilities (as hereinafter defined),
and (ii) Logix shall assume and accept or retain responsibility for the Logix
Liabilities (as hereinafter defined), in each case except as otherwise
provided in that certain Agreement by and between Xxxxxx and the shareholders
of Xxxxxx dated as of the date hereof regarding possible tax liabilities
incurred by Xxxxxx under Section 355(e) of the Internal Revenue Code of 1986,
as amended (the "TAX AGREEMENT");
NOW THEREFORE, in consideration of the mutual covenants herein set
forth, the parties agree as follows:
1. DISTRIBUTION OF LOGIX STOCK. Xxxxxx will distribute all stock in
Logix, which shall constitute all such stock outstanding, to the holders of
Xxxxxx Class A common stock and Xxxxxx Class B common stock (collectively,
the "COMMON STOCK"). Each holder of Common Stock will receive a percentage
of the total outstanding shares of Logix Common Stock equal to the percentage
determined by dividing the total number of shares of Common Stock owned by
such shareholder by the total outstanding shares of Common Stock.
2. CLOSING. The closing shall take place at Xxxxxx'x principal
execution offices on January ____, 2000 (the "CLOSING").
3. INDEMNIFICATION.
(a) CERTAIN DEFINITIONS.
"XXXXXX BUSINESSES" means all of the businesses, operations
and assets of Xxxxxx and its subsidiaries, including all of the businesses,
operations and assets that were previously conducted, owned or used by any
business or operation of Xxxxxx (or any predecessor to such business or
operation), notwithstanding the fact that prior to the Closing (i) any such
business or operation was closed, wound up or otherwise terminated, (ii) such
asset ceased to be used in connection with such business or operation, or
(iii) any such business, operation or asset was sold or otherwise disposed of
to any person or entity other than Logix and its subsidiaries; PROVIDED,
HOWEVER, that Xxxxxx Businesses do not include the Logix Businesses.
For the purpose of the definition of "Xxxxxx Businesses", the term "Xxxxxx"
includes all direct and indirect subsidiaries of Xxxxxx and any partnerships
in which it or any of its subsidiaries owns or at any time in the past owned
an interest.
"XXXXXX LIABILITIES" means, except as otherwise expressly provided
for in this Agreement and except for potential tax liabilities which are
addressed in the Tax Agreement, any and all of the obligations, liabilities
and expenses incurred by Xxxxxx, Logix or any of their respective affiliates
or subsidiaries or affiliates of such subsidiaries arising out of or
associated with, or any Litigation and Claims alleged to arise out of or be
associated with, the Xxxxxx Businesses, whether or not in the ordinary course
of business, in each case whether matured or unmatured, liquidated or
unliquidated, fixed or contingent, known or unknown, and whether arising out
of circumstances existing prior to, on or subsequent to the Closing and
regardless of where or against whom such obligations, liabilities and
expenses are asserted or determined or whether asserted or determined prior
to, on or subsequent to the Closing, and regardless of whether arising from
or alleged to arise from negligence, recklessness, violation of law, fraud,
or misrepresentation by any of the Logix Parties, and including, without
limitation, the following items:
(i) all obligations, liabilities and expenses with respect to health,
safety, personal injury, property damage, employment, benefits, compensation,
pension rights, claims arising out of contracts, intellectual property
rights, product liability, warranty, merchantability or fitness for any
particular purpose of goods, conformity of goods to contractual requirements,
deceptive trade practice, misrepresentation, fraud or any other alleged or
actual breach or violation of any obligation or requirement arising out of,
or associated with, the Xxxxxx Businesses;
(ii) all Litigation and Claims pending as of the Closing against
Logix or Xxxxxx and/or any of their respective affiliates or subsidiaries or
affiliates of such subsidiaries ("PENDING XXXXXX LITIGATION") and all
Litigation and Claims brought, threatened or alleged against Logix or Xxxxxx
and/or any of their respective affiliates or subsidiaries or affiliates of
such subsidiaries after the Closing ("NEW XXXXXX LITIGATION"), in each case
if and solely to the extent that such Litigation and Claims (in whole or in
part) arise out of or are associated with or are alleged (regardless of the
party named in the allegation or complaint) to arise out of or to be
associated with the Xxxxxx Businesses;
(iii) all obligations, liabilities and expenses (including, without
limitation, all fines or penalties or costs of closure, investigation and
feasibility studies, attorneys' or consultants' fees or remediation costs) of
Logix, Xxxxxx or any of their respective affiliates or subsidiaries or
affiliates of such subsidiaries arising under any federal, state, local or
foreign statutes, laws (including common law), codes, rules, regulations,
policies or guidelines or any administrative or judicial interpretations
thereof relating to the environment, natural resources and public or employee
health and safety arising out of or relating to, or alleged to arise out of
or relate to, the Xxxxxx Businesses;
(iv) any Litigation and Claims brought after the Closing against
Logix or its affiliates or subsidiaries or affiliates of such subsidiaries by
employees of Logix or Xxxxxx or any of their respective subsidiaries and
affiliates claiming that they suffered personal injuries
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of any kind, whether prior to, on or subsequent to, the Closing, arising or
alleged to arise from the Xxxxxx Businesses;
(v) all obligations, liabilities and expenses (other than those
arising solely due to joint and several liability under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) with respect to
any employee benefit plan (within the meaning of Section 3(3) of ERISA),
including any multiemployer plan (within the meaning of Section 3(37) of
ERISA), maintained by, contributed to, or obligated to contribute to, at any
time, by Xxxxxx or any of its subsidiaries other than Logix or any of its
subsidiaries; and
(vi) all obligations, liabilities and expenses with respect to the
employment or termination of employment, including a constructive
termination, of any individual by (A) Xxxxxx or any Xxxxxx Business, or (B)
any officer, director, employee or agent of Xxxxxx or any Xxxxxx Business
attributable to any actions or inactions by Xxxxxx or any Xxxxxx Business.
"XXXXXX PARTIES" means Xxxxxx and any direct or indirect subsidiary
or affiliate of Xxxxxx, other than Logix and any of its subsidiaries, and any
of their respective directors, shareholders, officers, employees, agents,
consultants, customers, representatives, successors, transferees or assignees.
"LITIGATION AND CLAIMS" means litigation pending or threatened or
claims alleged against Logix Parties and/or Xxxxxx Parties, including,
without limitation, civil and criminal actions, workers' compensation
proceedings, administrative and regulatory proceedings, investigations,
audits, inquiries, demands, claims (including any title claims relating to
real properties) and threatened actions.
"LOGIX BUSINESSES" means all of the businesses, operations and assets
of Logix and its subsidiaries, or any predecessor to such business or
operation, notwithstanding the fact that prior to the Closing (i) any such
business or operation was closed, wound up or otherwise terminated, (ii) such
asset ceased to be used in connection with such business or operation, or
(iii) any such business, operation or asset was sold or otherwise disposed of
to any person or entity except Xxxxxx or its subsidiaries or affiliates. For
the purpose of the definition of "Logix Businesses", the term "Logix"
includes all direct and indirect subsidiaries of Logix and any partnerships
in which it or any of its subsidiaries owns or at any time in the past owned
an interest.
"LOGIX LIABILITIES" means, except as otherwise expressly provided for
in this Agreement and except for potential tax liabilities addressed in the
Tax Agreement, any and all of the obligations, liabilities and expenses
incurred by Xxxxxx, Logix or any of their respective affiliates or
subsidiaries or affiliates of such subsidiaries arising out of or associated
with, or any Litigation and Claims alleged to arise out of or be associated
with the Logix Businesses, which or not in the ordinary course of business,
in each case whether matured or unmatured, liquidated or unliquidated, fixed
or contingent, known or unknown, and whether arising out of circumstances
existing prior to, on or subsequent to the Closing, and regardless of where
or against whom such obligations, liabilities and expenses are asserted or
determined or whether asserted or determined prior to, on or subsequent to
the Closing, and regardless of
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whether arising from or alleged to arise from negligence, recklessness,
violation of law, fraud or misrepresentation by any of the Xxxxxx Parties,
and including, without limitation, the following items:
(i) all obligations, liabilities and expenses with respect to health,
safety, personal injury, property damage, employment, benefits, compensation,
pension rights, claims arising out of contracts, intellectual property
rights, product liability, warranty, merchantability or fitness for any
particular purpose of goods, conformity of goods to contractual requirements,
deceptive trade practice, misrepresentation, fraud or any other alleged or
actual breach or violation of any obligation or requirement arising out of,
or associated with, the Logix Businesses;
(ii) all Litigation and Claims pending as of the Closing against
Logix or Xxxxxx and/or any of their respective affiliates or subsidiaries or
affiliates of such subsidiaries ("PENDING LOGIX LITIGATION") and all
Litigation and Claims brought, threatened or alleged against Logix or Xxxxxx
and/or any of their respective affiliates or subsidiaries or affiliates of
such subsidiaries after the Closing ("NEW LOGIX LITIGATION"), in each case if
and solely to the extent that such Litigation and Claims (in whole or in
part) arise out of or are associated with or are alleged (regardless of the
party named in the allegation or complaint) to arise out of or to be
associated with the Logix Businesses;
(iii) all obligations, liabilities and expenses (including, without
limitation, all fines or penalties or costs of closure, investigation and
feasibility studies, attorney or consultant fees or remediation costs) of
Logix, Xxxxxx or any of their respective affiliates or subsidiaries or
affiliates of such subsidiaries arising under any federal, state, local or
foreign statutes, laws (including common law), codes, rules, regulations,
policies or guidelines or any administrative or judicial interpretations
thereof relating to the environment, natural resources and public or employee
health and safety arising out of or relating to, or alleged to arise out of
or relate to the Logix Businesses;
(iv) any Litigation and Claims brought after the Closing against
Xxxxxx or its affiliates or subsidiaries or affiliates of such subsidiaries
by employees of Xxxxxx or Logix or any of their respective subsidiaries and
affiliates claiming that they suffered personal injuries of any kind, whether
prior to, on or subsequent to the Closing, arising out of, or alleged to
arise out of, the Logix Businesses;
(v) all obligations, liabilities and expenses (other than those
arising solely due to joint and several liability under ERISA with respect to
any employee benefit plan (within the meaning of Section 3(3) of ERISA),
including any multiemployer plan (within the meaning of Section 3(37) of
ERISA), maintained by, contributed to, or obligated to contribute to, at any
time, by Logix or any of its subsidiaries; and
(vi) all obligations, liabilities and expenses with respect to the
employment or termination of employment, including a constructive
termination, of any individual by (A) Logix or any of the Logix Businesses,
or (B) any officer, director, employee or agent of Logix or any of the Logix
Businesses attributable to any actions or inactions by Logix or any of the
Logix Businesses.
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"LOGIX PARTIES" means Logix and any direct or indirect subsidiary
or affiliate of Logix, and any of their respective directors, shareholders,
officers, employees, agents, consultants, customers, representatives,
successors, transferees or assignees.
(b) EXCULPATION AND INDEMNIFICATION BY XXXXXX.
Subject to the provisions of Section 3(d) hereof, upon, from and
after the Closing, Xxxxxx shall, without any further responsibility or
liability of, or recourse to, any of the Logix Parties, absolutely and
irrevocably assume and be solely liable and responsible for the Xxxxxx
Liabilities. None of the Logix Parties shall be liable to any of the Xxxxxx
Parties for any reason whatsoever on account of any Xxxxxx Liabilities.
Xxxxxx shall indemnify, defend, save and hold harmless each of
the Logix Parties from and against all claims, liabilities, obligations,
losses, costs, costs of defense (as and when incurred, and including
reasonable outside attorneys' and consultants' fees), expenses, fines,
charges, penalties, allegations, demands, damages (including but not limited
to actual, punitive or consequential, foreseen or unforeseen, known or
unknown), settlements, awards or judgments of any kind or nature whatsoever,
arising out of (i) the Xxxxxx Liabilities, and (ii) the breach by any of the
Xxxxxx Parties of any of their obligations under this Agreement (all of which
are hereinafter collectively referred to as the "LOGIX DAMAGES").
Logix Damages with respect to which, but only to the extent that,
any proceeds are received by, or on behalf of, Logix or by any of its
subsidiaries or affiliates, from any third party insurance policy (and are
non-reimbursable by Logix or any of its subsidiaries or affiliates under any
self-insurance policy), shall not be the subject of indemnification under
this Agreement.
(c) GENERAL INDEMNIFICATION BY LOGIX.
Subject to the provisions of Section 3(d) hereof, upon, from and
after the Closing, Logix shall, without any further responsibility or
liability of, or recourse to, any of the Xxxxxx Parties, absolutely and
irrevocably assume and be solely liable and responsible for the Logix
Liabilities. None of the Xxxxxx Parties shall be liable to any of the Logix
Parties for any reason whatsoever on account of any Logix Liabilities.
Logix shall indemnify, defend, save and hold harmless each of the
Xxxxxx Parties from and against all claims, liabilities, obligations, losses,
costs, costs of defense (as and when incurred, and including reasonable
outside attorneys' and consultants' fees), expenses, fines, charges,
penalties, allegations, demands, damages (including but not limited to
actual, punitive or consequential, foreseen or unforeseen, known or unknown),
settlements, awards or judgments of any kind or nature whatsoever, arising
out of (i) the Logix Liabilities, and (ii) the breach by any of the Logix
Parties of any of their obligations under this Agreement (all of which are
hereinafter collectively referred to as the "XXXXXX DAMAGES").
Xxxxxx Damages with respect to which, but only to the extent
that, any proceeds are received by, or on behalf of, Xxxxxx or by any of its
subsidiaries or affiliates, from any third party insurance policy (and are
non-reimbursable by Xxxxxx or any of its subsidiaries
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or affiliates under any self-insurance policy), shall not be the subject of
indemnification under this Agreement.
(d) SPECIFIC INDEMNIFICATION ISSUES.
(i) In the event a claim, demand, action or proceeding is brought
by a third party in which the liability as between Xxxxxx and Logix is
determined after trial in any judgment, award or decree to be joint or
concurrent or in which the entitlement to indemnification hereunder is not
readily determinable, the parties shall negotiate in good faith in an effort
to agree, as between Xxxxxx and Logix, on the proper allocation of liability
or entitlement to indemnification, as well as the proper allocation of the
costs of any joint defense or settlement pursuant to Section 3(f)(iv), all in
accordance with the provisions of, and the principles set forth in, this
Agreement. In the absence of any such agreement, such allocation of
liability, entitlement to indemnification and allocation of costs shall be
subject to ultimate resolution between Xxxxxx and Logix pursuant to Section
4(h).
(ii) It is acknowledged that after the Closing the parties will
have arms length negotiated business relationships, which relationships will
be described in contracts, agreements and other documents entered into in the
normal course of business. Such documents may include agreements by the
parties and their affiliates and subsidiaries to supply after the Closing,
materials, products, services and leases. Such business relationships shall
not be subject to the indemnity provisions hereof, unless the parties
expressly agree to the contrary in the agreements governing such
relationships.
(e) NOTICE AND PAYMENT OF CLAIMS.
(i) If any person entitled to a defense and/or indemnification
under this Agreement (the "INDEMNIFIED PARTY") determines that it is or may
be entitled to a defense or indemnification by Logix or Xxxxxx, as the case
may be (the "INDEMNIFYING PARTY"), under this Agreement:
(1) The Indemnified Party shall deliver promptly to the
Indemnifying Party a written notice and demand for a defense or
indemnification, specifying the basis for the claim or defense and/or
indemnification, the nature of the claim, and if known, the amount for which
the Indemnified Party reasonably believes it is entitled to be indemnified.
Nothing in this subparagraph shall be interpreted to invalidate any claim by
the Indemnified Party to be entitled to indemnification, unless the
Indemnifying Party can show that the failure of the Indemnified Party to
deliver such notice was intentional.
(2) The Indemnifying Party shall have 30 days from receipt of
the notice requesting indemnification within which to either: (A) assume the
defense of such litigation or claim; (B) pay the claim in immediately
available funds; (C) reserve its rights pending negotiations under Section
3(f)(iv); or (D) object in accordance with Section 3(e)(ii). This 30-day
period may be extended by agreement of the parties. Nothing in this
subparagraph shall be interpreted to abrogate or delay a party's obligation
to provide the other with a defense under this Agreement.
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(ii) The Indemnifying Party may object to the claim for defense
and/or indemnification set forth in any notice; PROVIDED, HOWEVER, that if
the Indemnifying Party does not give the Indemnified Party written notice
setting forth its objection to such claim (or the amount thereof) and the
grounds therefor within the same 30-day period (or any extended period)
referred to in Section 3(e)(i) above, the Indemnifying Party shall be deemed
to have acknowledged its liability to provide a defense or for the amount of
such claim and the Indemnified Party may exercise any and all of its rights
under applicable law to collect such amount or obtain such defense. Any
objection to a claim for a defense or indemnification shall be resolved in
accordance with Section 3(h)(viii).
(iii) The right to a defense or indemnification under this
Agreement applies only insofar as defense and indemnification are not
provided for by insurance from any third party insurance policy (and are
non-reimbursable by the Indemnified Party or any of its affiliates or
subsidiaries or affiliates of such subsidiaries under any self-insurance
policy). Nevertheless, the potential availability of insurance coverage to
Xxxxxx or Logix shall not relieve the other party of its obligations for
defense or indemnification hereunder, or delay either party's obligation to
the other to assume a defense or pay any sums due hereunder.
(iv) Payments due to be made under this Agreement shall carry
interest from the date on which the Indemnified Party became entitled to
indemnification until the date of actual payment (whether before or after
judgment) at the prime rate charged by Chase Manhattan Bank, N.A. to its
corporate customers in effect during such period.
(v) Payments due to be made under this Agreement shall be free
and clear of all deductions, withholdings, set-offs or counterclaims
whatsoever, except as may be required by law. If any deductions or
withholdings are required by law the Indemnifying Party shall be obliged to
pay such sum as will, after such deduction, withholding, set-off or
counterclaim has been made, leave the Indemnified Party with the same amount
as it would have been entitled to receive in the absence of any such
requirement to make a deduction or withholding.
(vi) Payments due to be made under this Agreement shall be
reduced by the amount by which any taxes for which the Indemnified Party
would have been accountable or liable to be assessed are either (i) actually
reduced prior to payment falling due hereunder or (ii) likely to be reduced
subsequent to payment falling due hereunder in the reasonable opinion of the
Indemnified Party acting in good faith in the light of the circumstances
prevailing at the time of delivery of written notice in accordance with
Section 3(e)(i). The reductions of any payments to be made in accordance
with this Section 3(e)(vi) for tax benefits which will likely be recognized
within one year after the date on which the Indemnified Party receives
indemnification under this Agreement shall be made without regard to the time
value of money. The reduction of any payments to be made in accordance with
this Section 3(e)(vi) for tax benefits which will not likely be recognized
within one year after the date on which the Indemnified Party receives
indemnification under this Agreement shall take into account the time value
of money from the time the applicable payment is received until the date of
such tax benefits are likely to be recognized, using as the discount rate the
prime rate charged by Chase Manhattan Bank, N.A. to its corporate customers
at the time the payment is received.
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(vii) The parties to this Agreement may enter into agreements or
other arrangements providing for the set-off of payments due to be made by
way of indemnification to both Xxxxxx and Logix.
(f) DEFENSE OF THIRD-PARTY CLAIMS.
(i) If the Indemnified Party's claim for indemnification is
based, under this Agreement, on a claim, demand, investigation, action or
proceeding, judicial or otherwise, brought by a third party, and the
Indemnifying Party does not object under Section 3(e)(ii) hereof, the
Indemnifying Party shall, within the 30-day period (or any extended period)
referred to in Section 3(e)(i) above, assume the defense of such third-party
claim at its sole cost and expense and shall thereafter be designated as the
"Case Handler." Any such defense shall be conducted by attorneys employed by
the Indemnifying Party. The Indemnified Party may retain attorneys of its
own choosing to participate in such defense at the Indemnified Party's sole
cost and expense.
(ii) If the Indemnifying Party assumes the defense of any such
third-party claim, the Indemnifying Party may settle or compromise the claim
without the prior consent of the Indemnified Party so long as all present and
future claims relating to the compromised claim against the Indemnified Party
are irrevocably and unconditionally released in full.
(iii) The Indemnifying Party shall pay to the Indemnified Party
in immediately available funds the amount for which the Indemnified Party is
entitled to be indemnified within 30 days after the settlement or compromise
of such third-party claim or the judgment of a court of competent
jurisdiction (or within such longer period as agreed to by the parties). If
the Indemnifying Party does not assume the defense of any such third-party
claim, the Indemnifying Party shall be bound by the result obtained with
respect thereto by the Indemnified Party, except that the Indemnifying Party
has the right to contest that it is obligated to the Indemnified Party under
the terms of this Agreement, provided the Indemnifying Party shall have
raised its objection in a timely manner under Section 3(e)(ii).
(iv) In the event a claim, demand, action or proceeding is
brought by a third party in which the liability as between Logix and Xxxxxx
is alleged to be joint or in which the entitlement to indemnification
hereunder is not readily determinable, the parties shall cooperate in a joint
defense. Such joint defense shall be under the general management and
supervision of the party which is expected to bear the greater share of the
liability, and which will be considered the Case Handler, unless otherwise
agreed; PROVIDED, HOWEVER, that neither party shall settle or compromise any
such joint defense matter without the consent of the other. The costs of
such joint defense, any settlement and any award or judgment (unless the
award or judgment specifies otherwise) shall be borne as the parties may
agree; or in the absence of such agreement, such costs shall be borne by the
party incurring such costs, subject to ultimate resolution between Logix and
Xxxxxx pursuant to Section 4(h).
(g) COOPERATION AND PRESERVATION OF RECORDS.
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(i) Logix Parties and Xxxxxx Parties shall cooperate with one
another fully and in a timely manner in connection with the defense of any
Pending Logix Litigation, New Logix Litigation, Pending Xxxxxx Litigation,
New Xxxxxx Litigation or any other actual or threatened claim.
(ii) Such cooperation shall include, without limitation, making
available to the other party, during normal business hours and upon
reasonable notice, all books, records and information ("LITIGATION RECORDS"),
officers and employees (without substantial interruption of employment)
necessary or useful in connection with any actual or threatened claim,
investigation, audit or proceeding.
(iii) Each party shall continue in force, or at the request of
the other party, shall issue, notices exempting from destruction any
Litigation Records which the requesting party represents may be necessary to
the defense of, or required to be produced in discovery in connection with,
any such claim, investigation, audit, action or proceeding and shall refrain
from destroying any such Litigation Records until authorized by the
requesting party. The requesting party shall notify the other party promptly
when the Litigation Records are no longer required to be maintained.
(iv) The party requesting access to Litigation Records or
officers and employees pursuant to Section 3(g)(ii) or preservation of
Litigation Records under Section 3(g)(iii) shall bear all reasonable
out-of-pocket expenses (except reimbursement of salaries, employee benefits
and general overhead) incurred by the other party in connection with
providing such Litigation Records or officers and employees.
(v) The party providing Litigation Records under this Section
3(g) may elect, upon a reasonable basis and within a reasonable time, to
designate all or a portion of the Litigation Records as confidential or
proprietary. If Litigation Records are so designated, the party receiving
them will treat them as it would its own confidential or proprietary
information and will take all reasonable steps to protect and safeguard the
Litigation Records while in its own custody and will attempt to shield such
information from disclosure by motions to quash, motions for a protective
order, redaction or other appropriate actions.
4. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Oklahoma.
(b) This Agreement may be amended, modified or supplemented only
by a written agreement of the parties.
(c) Except as provided in this Section 4(c), this Agreement shall
be personal to the parties to it and may not be assigned without the prior
written consent of the other parties. Notwithstanding the foregoing, Xxxxxx
and Logix acknowledge and agree that any party may assign its rights and
delegate its obligations under this Agreement, to one or more of its
respective subsidiaries or affiliates, provided that such an assignment shall
have no effect on, and shall not be deemed to constitute a release of such
party from, its obligations under this Agreement.
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(d) This Agreement is solely for the benefit of the Xxxxxx
Parties and the Logix Parties and is not intended to confer upon any other
person except such parties any rights or remedies hereunder. There are no
third party beneficiaries to this Agreement other than the Xxxxxx Parties and
the Logix Parties.
(e) This Agreement may be entered into in any number of
counterparts and by the parties to it on separate counterparts, each of which
when so executed and delivered shall be an original, but all the counterparts
shall together constitute one and the same instrument.
(f) If any term or provision of this Agreement shall be held to
be illegal or unenforceable, in whole or in part, under any enactment or rule
of law, such term or provision or part shall to that extent be deemed not to
form part of this Agreement but the enforceability of the remainder of this
Agreement shall not be affected. Subject thereto, should any term or
provision of this Agreement be or become ineffective, in whole or in part,
for reasons beyond the control of the parties hereto, the parties shall use
reasonable efforts to agree upon a new provision which shall as nearly as
possible have the same commercial effect as the ineffective term or provision
or part hereof.
(g) Any notice, claim or demand requiring to be served under or
in connection with this Agreement shall be in writing and shall be
sufficiently given or served if delivered addressed as follows:
If to Xxxxxx or any other Xxxxxx Party, to:
Xxxxxx Communications Corporation
00000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
If to Logix or any other Logix Party, to:
Logix Communications Enterprises, Inc.
0000 X.X. 00xx Xxxxxx, 00xx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxx
Any such notice shall be delivered by hand or sent by first class post or
overnight courier. Any such notice shall take effect, in the case of hand
delivery, at the time of delivery, or, in the case of first class post,
forty-eight hours after posting.
(h) Resolution of any and all disputes arising from or in
connection with this Agreement, whether based on contract, tort, statute or
otherwise, including, but not limited to, disputes over arbitration and
disputes in connection with claims by third parties (collectively,
"DISPUTES") shall be exclusively governed by and settled in accordance with
the provisions of this Section 4(h); PROVIDED, HOWEVER, that nothing
contained herein shall preclude either party from seeking or obtaining (a)
injunctive relief or (b) equitable or other judicial relief to enforce the
provisions hereof or, pending resolution of Disputes hereunder, to preserve
the status quo.
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Xxxxxx or Logix (each a "PARTY") may commence proceedings hereunder by
delivering a written notice to the other Party providing reasonable
description of the Dispute to the other and expressly requesting arbitration
hereunder. The Parties hereby agree to submit all Disputes to arbitration
under the terms hereof, which arbitration shall be final, conclusive and
binding upon the Parties, their successors and assigns. The arbitration
shall be conducted in Oklahoma City by three arbitrators acting by majority
vote (the "PANEL") selected by agreement of the Parties not later than ten
(10) days after delivery of the demand or, failing such agreement, appointed
pursuant to the commercial arbitration rules of the American Arbitration
Association, as amended from time to time (the "AAA RULES"). If an
arbitrator so selected becomes unable to serve, his or her successor shall be
similarly selected or appointed. The arbitration shall be conducted pursuant
to the Federal Arbitration Act and such procedures as the Parties may agree,
or, in the absence of or failing such agreement, pursuant to the AAA Rules.
Notwithstanding the foregoing: (i) each Party shall have the right to audit
the books and records of the other Party that are reasonably related to the
Dispute; (ii) each Party shall provide to the other, reasonably in advance of
any hearing, copies of all documents which a Party intends to present in such
hearing; and (iii) each Party shall be allowed to conduct reasonable
discovery through written requests for information, document requests,
requests for stipulation of fact and depositions, the nature and extent of
which discovery shall be determined by the Panel, taking into account the
needs of the Parties and the desirability of making discovery expeditious and
cost effective. All hearings shall be conducted on an expedited schedule,
and all proceedings shall be confidential. Either Party may at its expense
make a stenographic record thereof. The Panel shall complete all hearings
not later than ninety (90) days after its selection or appointment, and shall
make a final award not later than thirty (30) days thereafter. The award
shall be in writing and shall specify the factual and legal basis for the
award. The Panel shall apportion all costs and expenses of arbitration,
including the Panel's fees and expenses and fees and expenses of experts,
between the prevailing and non-prevailing Party as the Panel deems fair and
reasonable. Notwithstanding the foregoing, in no event may the Panel award
multiple, punitive or exemplary damages. Any arbitration award shall be
binding and enforceable against the Parties hereto and judgment may be
entered thereon in any court of competent jurisdiction.
(i) Neither of the parties hereto shall impeach this Agreement on
the grounds that any of the Directors of Xxxxxx stand in any fiduciary
position to Logix or that any of the Directors of Logix stand in any
fiduciary position to Xxxxxx or that the Directors of either party do not
constitute an independent Board.
IN WITNESS WHEREOF, Xxxxxx and Logix have caused this Agreement to be
signed and delivered by their respective officers thereunto duly authorized,
all as of the date first written above.
XXXXXX COMMUNICATIONS CORPORATION
By
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Name:
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Title:
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11
LOGIX COMMUNICATIONS ENTERPRISES, INC.
By
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Name:
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Title:
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12
