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EXHIBIT 99.4
AMENDED AND RESTATED INDEMNIFICATION AGREEMENT
THIS AMENDED AND RESTATED INDEMNIFICATION AGREEMENT (this "Agreement")
is made and entered into this 23rd day of April, 2001 ("Effective Date"), by and
between The Xxxxxxxx Companies, Inc., a Delaware corporation ("Xxxxxxxx"), and
Xxxxxxxx Communications Group, Inc., a Delaware corporation ("Communications").
The parties to this Agreement are collectively referred to as the "Parties", and
singularly as a "Party".
WITNESSETH:
WHEREAS, the Parties entered into an Indemnification Agreement dated
September 1, 1999, in conjunction with the initial public offering of
Communications (the "Prior Agreement"), and
WHEREAS, Xxxxxxxx plans to spin-off a portion of the issued and
outstanding Communications Class A Common Stock, held by Xxxxxxxx to the
shareholders of Xxxxxxxx (the "Spin-Off"), and
WHEREAS, the Parties desire to amend and restate the Prior Agreement
with respect to the Spin-Off,
NOW, THEREFORE, the parties hereto agree, intending to be legally
bound, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. As used in this Agreement, in addition to
the terms defined in the Preamble and Recitals hereof, the following terms shall
have the following meanings, applicable to both the singular and plural forms of
the terms described:
"1933 ACT" means the Securities Act of 1933, as amended, or any similar
federal law then in force, and the rules and regulations promulgated thereunder.
"1934 ACT" means the Securities Exchange Act of 1934, as amended, or
any similar federal law then in force, and the rules and regulations promulgated
thereunder.
"ACTION" means any action, claim (whether or not filed), suit,
arbitration, inquiry, demand proceeding or investigation.
"BUSINESS DAY" means any calendar day which is not a Saturday, Sunday
or public holiday under the laws of the State of New York.
"COMMON STOCK" means the Class A common stock, par value $.01 per share
of Communications.
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"COMMUNICATIONS GROUP" means Communications and its direct and indirect
subsidiaries.
"COMMUNICATIONS LIABILITIES" means all Liabilities (other than
Liabilities for Taxes that are allocated pursuant to the Tax Sharing Agreement)
to the extent relating to, resulting from or arising out of the businesses or
operations conducted or formerly conducted or assets owned or formerly owned by
any member of the Communications Group.
"COMMUNICATIONS SECURITIES LIABILITIES" means any Liability under the
1933 Act, the 1934 Act, or any other federal or state securities law or
regulation resulting from or arising out of the Communications Securities
Offerings or the Spin-Off, including, without limitation, any such Liability
arising out of or based upon: (i) any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or in any
Prospectus; or (ii) the omission or alleged omission to state in a Registration
Statement or Prospectus a material fact required to be stated therein or
necessary to make the statements made therein not misleading; but only to the
extent that such Liability arises out of or is based upon any such untrue
statement or alleged untrue statement or any such omission or alleged omission
concerning the businesses and operations of any member of the Communications
Group.
"COMMUNICATIONS SECURITIES OFFERINGS" means any private or public
offerings of securities made by Communications on or prior to the Effective
Date.
"CREDIT ENHANCEMENT FEE" means, with respect to each fiscal quarter for
which such fee is payable, an amount equal to 1.50% per annum multiplied by the
full amount of the obligations and liabilities of Communications and its direct
and indirect subsidiaries outstanding during such quarter to the extent
guaranteed or secured by Xxxxxxxx Guarantees.
"ENVIRONMENTAL LAW" means any statute, law, regulation and rule in
effect before, on or after the date of this Agreement that has as its principal
purpose the protection of the environment.
"INDEMNIFIABLE LOSSES" shall have the meaning ascribed to it in Section
2.01.
"INDEMNIFYING PARTY" shall have the meaning ascribed to it in Section
4.01(a).
"INDEMNITEE" shall have the meaning ascribed to it in Section 4.01(a).
"INDEMNITY PAYMENT" shall have the meaning ascribed to it in Section
4.01(a).
"INSURANCE PROCEEDS" means those monies: (a) received by an insured
from an insurance carrier, or (b) paid by an insurance carrier on behalf of the
insured in the case of (a) or (b), net of any applicable premium adjustments
(including reserves and retrospectively rated premium adjustments) and net of
any costs or expenses (including allocated costs of in-house counsel and other
personnel) incurred in collection thereof.
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"LIABILITIES" means all liabilities and obligations of a party, actual
or contingent, liquidated or unliquidated, accrued or unaccrued, known or
unknown, whenever and however arising, including all costs and expenses
(including reasonable fees and disbursements of counsel) relating thereto, and
including, without limitation, liabilities and obligations arising in connection
with (i) any actual or threatened claim, action, suit or proceeding by or before
any court or regulatory or administrative agency or commission or any
arbitration panel, and (ii) any violation of any Environmental Law.
"PROSPECTUS" means any prospectus or offering memorandum relating to
any Communications Securities Offerings or Xxxxxxxx Securities Offerings, as
applicable, and any amendment or supplement thereto.
"REGISTRATION RIGHTS AGREEMENT" means that certain Registration Rights
Agreement by and between Xxxxxxxx and Communications dated September 1, 1999.
"REGISTRATION STATEMENT" means any Registration Statement filed with
the SEC in connection with any Communications Securities Offerings or Xxxxxxxx
Securities Offerings, as applicable, and any amendment or supplement thereto.
"SEC" means the Securities and Exchange Commission.
"SHAREHOLDER AGREEMENT" means that certain Shareholder Agreement by and
between Xxxxxxxx and Communications dated as of the date hereof.
"TAX ASSESSMENT" shall have the meaning ascribed to it in Section
12.01(a).
"TAX SHARING AGREEMENT" means (i) that certain Tax Sharing Agreement
between Xxxxxxxx and Communications dated September 30, 1999 as amended and
restated concurrently herewith.
"TAXES" shall have the same meaning as defined in the Tax Sharing
Agreement.
"THIRD-PARTY CLAIM" shall have the meaning ascribed to it in Section
5.01(a).
"UNDERWRITING AGREEMENTS" means any underwriting agreement or purchase
agreement associated with any Communications Securities Offerings or Xxxxxxxx
Securities Offerings, as applicable, and any amendment or supplement thereto.
"WCG FREE CASH FLOW" means the first quarter during which
Communications has any Excess Cash Flow, as such term is defined in that certain
Amended and Restated Credit Agreement dated as of April 24, 2001 among Xxxxxxxx
Communications, LLC (formerly known as Xxxxxxxx Communications, Inc.),
Communications, the Lenders party thereto, Bank of America, N.A., as
Administrative Agent and The Chase Manhattan Bank, as Syndication Agent.
"XXXXXXXX GROUP" means Xxxxxxxx and each of its direct and indirect
subsidiaries other than members of the Communications Group.
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"XXXXXXXX GUARANTEE" means any guarantee, surety or performance bond,
letter of credit or other contractual arrangement in effect on or after the
Effective Date pursuant to which any member of the Xxxxxxxx Group has guaranteed
or secured, or caused a third party to guarantee or secure, any liability or
obligation of Communications and its direct and indirect subsidiaries, including
but not limited to any of the guarantees listed on Exhibit A attached hereto and
made a part hereof.
"XXXXXXXX LIABILITIES" means all Liabilities (other than any
Liabilities for taxes which are allocated pursuant to the Tax Sharing Agreement)
to the extent relating to, resulting from or arising out of the business or
operations conducted formerly conducted or assets now or previously owned or
operated by any member of the Xxxxxxxx Group or any predecessor, in whole or in
part, of any such entity.
"XXXXXXXX SECURITIES LIABILITIES" means any Liability under the 1933
Act, the 1934 Act or any other federal or state securities law or regulation
resulting from or arising out of either any Xxxxxxxx Securities Offerings or the
Spin-Off, including, without limitation, any such Liability arising out of or
based upon: (i) any untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement or in any Prospectus; or (ii) the
omission or alleged omission to state in a Registration Statement or Prospectus
a material fact required to be stated therein or necessary to make the
statements made therein not misleading; but only to the extent that such
Liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission concerning the business and
operations of any member of the Xxxxxxxx Group.
"XXXXXXXX SECURITIES OFFERINGS" means any private or public offerings
of securities made by Xxxxxxxx on or prior to the Effective Date.
SECTION 1.02. INTERNAL REFERENCES. Unless the context indicates
otherwise, references to Articles, Sections and Paragraphs shall refer to the
corresponding Articles, Sections and Paragraphs in this Agreement, and
references to the parties shall mean the parties to this Agreement.
ARTICLE II
INDEMNIFICATION BY COMMUNICATIONS
SECTION 2.01. INDEMNIFICATION BY COMMUNICATIONS. (a) Communications
shall indemnify, defend and hold harmless the Xxxxxxxx Group and the respective
past, present and future directors, officers, partners, employees, agents and
representatives thereof (regardless in each case of whether any such person
serves in one or more similar capacities for Communications) from and against
any and all losses, claims, damages, liabilities, demands, suits and actions,
including all reasonable attorneys' fees and disbursements and other costs and
expenses incurred in connection therewith (collectively, "Indemnifiable
Losses"), relating to, resulting from or arising out of: (i) any Communications
Liabilities; (ii) any Communications Securities Liabilities; or (iii) any
misrepresentation or breach by any member
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of the Communications Group of any covenant of any member of the Communications
Group or any failure by any member of the Communications Group to satisfy any
condition required to be satisfied by any member of the Communications Group or
any liability of any member of the Communications Group for Taxes as set forth
in the Tax Sharing Agreement, to be owing by any member of the Communications
Group for which any member of the Xxxxxxxx Group may have a secondary liability,
in each case contained in this Agreement, the Underwriting Agreements or any
other agreement executed by any member of the Communications Group in connection
with any Communications Securities Offerings or the Spin-Off, including, without
limitation, the Registration Rights Agreement, the Shareholders Agreement, and
the Tax Sharing Agreement, and in addition to and notwithstanding any other
indemnification between the parties hereto as provided in any such agreement,
except to the extent that such misrepresentation, breach or failure was caused
by or resulted from any statement, act or omission within the exclusive
knowledge or control of any member of the Xxxxxxxx Group.
(b) Except as specifically set forth in this Agreement, Xxxxxxxx Group
waives any rights and claims Xxxxxxxx Group may have against any member of
Communications Group, whether in law or in equity, relating to the business of
Xxxxxxxx Group or the transactions contemplated hereby. The rights and claims
waived by Xxxxxxxx Group include, without limitation, claims for contribution or
other rights of recovery arising out of or relating to any Environmental Law,
claims for breach of contract, breach of representation or warranty, negligent
misrepresentation and all other claims for breach of duty. This Agreement will
provide the exclusive remedy for any misrepresentation, breach of warranty,
covenant or other agreement or other claim arising out of this Agreement or the
transactions contemplated hereby.
ARTICLE III
INDEMNIFICATION BY XXXXXXXX
SECTION 3.01. INDEMNIFICATION BY XXXXXXXX. (a) Xxxxxxxx shall
indemnify, defend and hold harmless the Communications Group and the respective
past, present and future directors, officers, employees, partners, agents and
representatives thereof (regardless in each case of whether any such person
serves in one or more similar capacities for any member of the Xxxxxxxx Group)
from and against any and all Indemnifiable Losses relating to, resulting from or
arising out of: (i) any Xxxxxxxx Liabilities; (ii) any Xxxxxxxx Securities
Liabilities; or (iii) any misrepresentation or breach by any member of the
Xxxxxxxx Group of any covenant of any member of the Xxxxxxxx Group or any
failure of any member of the Xxxxxxxx Group to satisfy any condition required to
be satisfied by any member of the Xxxxxxxx Group or any liability of any member
of the Xxxxxxxx Group for Taxes as set forth in the Tax Sharing Agreement, to be
owing by any member of the Xxxxxxxx Group for which any member of the
Communications Group may have a secondary liability, contained in this
Agreement, the Underwriting Agreements, or any other agreement executed by any
member of the Xxxxxxxx Group in connection with any Xxxxxxxx Securities
Offerings or the Spin-Off, including, without limitation, the Registration
Rights Agreement, the Shareholder Agreement, and the Tax Sharing Agreement, and
in addition to and notwithstanding any other indemnification between the parties
hereto as provided in any such agreement, except to the extent that such
misrepresentation,
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breach or failure was caused by or resulted from any statement, act or omission
within the exclusive knowledge or control of any member of the Communications
Group.
(b) Except as specifically set forth in this Agreement, Communications
Group waives any rights and claims Communications Group may have against any
member of Xxxxxxxx Group, whether in law or in equity, relating to the business
of the Communications Group or the transactions contemplated hereby. The rights
and claims waived by Communications Group include, without limitation, claims
for contribution or other rights of recovery arising out of or relating to any
Environmental Law, claims for breach of contract, breach of representation or
warranty, negligent misrepresentation and all other claims for breach of duty.
This Agreement will provide the exclusive remedy for any misrepresentation,
breach of warranty, covenant or other agreement or other claim arising out of
this Agreement or the transactions contemplated hereby.
ARTICLE IV
INDEMNIFICATION OBLIGATIONS NET OF INSURANCE PROCEEDS
AND OTHER AMOUNTS
SECTION 4.01. INDEMNIFICATION OBLIGATIONS NET OF INSURANCE PROCEEDS AND
OTHER AMOUNTS. (a) The parties intend that any Liabilities subject to
indemnification or reimbursement pursuant to Article II or Article III of this
Agreement will be net of Insurance Proceeds that actually reduce the amount of
the Liabilities. Accordingly, the amount which any party (an "Indemnifying
Party") is required to pay to any person entitled to indemnification hereunder
(an "Indemnitee") will be reduced by any Insurance Proceeds theretofore actually
recovered by or on behalf of the Indemnitee in reduction of the related
Liability. If an Indemnitee receives a payment (an "Indemnity Payment") required
by this Agreement from an Indemnifying Party in respect of any Liability and
subsequently receives Insurance Proceeds, then the Indemnitee will pay to the
Indemnifying Party an amount equal to the excess of the Indemnity Payment
received over the amount of the Indemnity Payment that would have been due if
the Insurance Proceeds recovery had been received, realized or recovered before
the Indemnity Payment was made.
(b) An insurer who would otherwise be obligated to pay any claim shall
not be relieved of the responsibility with respect thereto or, solely by virtue
of the indemnification provisions hereof, or have any subrogation rights with
respect thereto, it being expressly understood and agreed that no insurer or any
other third party shall be entitled to a "windfall" (i.e., a benefit they would
not be entitled to receive in the absence of the indemnification provisions) by
virtue of the indemnification provisions hereof. Notwithstanding the foregoing,
each member of the Xxxxxxxx Group and Communications Group shall be required to
use commercially reasonable efforts to collect or recover any available
Insurance Proceeds.
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ARTICLE V
GUARANTEE
SECTION 5.01. GUARANTEE. Communications shall indemnify, defend and
hold harmless each member of the Xxxxxxxx Group, and their respective directors,
officers, employees, agents and representatives, from and against any
Indemnifiable Losses relating to, resulting from, or arising out of any Xxxxxxxx
Guarantee. Each member of the Xxxxxxxx Group shall not terminate unilaterally or
withdraw any Xxxxxxxx Guarantee and shall abide by the terms of any such
Xxxxxxxx Guarantee. Communications shall reimburse each member of the Xxxxxxxx
Group for any direct fees (such as letter of credit maintenance fee) incurred by
such member in connection with maintaining any Xxxxxxxx Guarantee.
SECTION 5.02. CREDIT SUPPORT FEE. Communications shall pay the Credit
Enhancement Fee to Xxxxxxxx beginning upon the earlier of (i) the existence or
incurrence of any Reimbursement Obligations, as such term is defined in that
certain Participation Agreement among Xxxxxxxx, Communications, Xxxxxxxx
Communications, LLC, WCG Note Trust, WCG Note Corp., Inc., Xxxxxxxx Share Trust,
United States Trust Company of New York, and Wilmington Trust Company dated as
of March 22, 2001, upon or after March 15, 2004, or (ii) the WCG Free Cash Flow,
and continuing upon the first day of each quarter thereafter (e.g., January 1,
April 1, July 1 and October 1) until all of the Xxxxxxxx Guarantees have been
terminated and no member of the Xxxxxxxx Group has any continuing liabilities or
obligations, contingent or otherwise, with respect thereto.
SECTION 5.03 CHANGE OF CONTROL. In the event of a Change of Control, as
such term is defined in that certain Credit Agreement among Communications,
Xxxxxxxx Communications, Inc., Bank of America, N.A. as administrative Agent,
The Chase Manhattan Bank as syndication agent, and various other Banks dated
September 8, 1999, as heretofore amended, Communications hereby agrees that no
member of the Xxxxxxxx Group will have any continuing liabilities or
obligations, contingent or otherwise, with respect to any of the Xxxxxxxx
Guarantees, and Communications hereby agrees to use its reasonable best efforts
to procure such waivers and releases as any member of the Xxxxxxxx Group may
reasonably request as evidence of and/or to effectuate such termination of
liability.
SECTION 5.04 REPORTING. Communications will provide Xxxxxxxx with
financial reporting to the same extent Communications provides reports to the
agents and/or lenders under its other debt instruments, including without
limitation bank loans, for so long as any Xxxxxxxx Guarantees are outstanding.
ARTICLE VI
THIRD-PARTY CLAIMS
SECTION 6.01. THIRD-PARTY CLAIMS. (a) If any Indemnitee receives notice
of the assertion of any claim or of the commencement of any action or proceeding
by any person that is not a party to this Agreement or a subsidiary of any such
party against such Indemnitee (a "Third-Party Claim"), the Indemnitee shall
promptly provide written notice thereof (including a description of the
Third-Party Claim and an estimate of any Indemnifiable Losses, which estimate
shall not be conclusive as to the final amount of such Indemnifiable Losses) to
the Indemnifying Party within twenty (20) Business Days after the Indemnitee's
receipt of notice of
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such Third-Party Claim. Any delay by the Indemnitee in providing such written
notice shall not relieve the Indemnifying Party of any liability for
indemnification hereunder except to the extent that the rights of the
Indemnifying Party are materially prejudiced by such delay.
(b) The Indemnifying Party shall have the right to participate in or,
by giving written notice to the Indemnitee, to assume the defense of any
Third-Party Claim at such Indemnifying Party's expense and by such Indemnifying
Party's own counsel (which shall be reasonably satisfactory to the Indemnitee),
and the Indemnitee will cooperate in good faith in such defense. The
Indemnifying Party shall not be liable for any legal expenses incurred by the
Indemnitee after the Indemnitee has received notice of the Indemnifying Party's
intent to assume the defense of a Third-Party Claim; provided, however, that if,
under applicable standards of professional conduct a conflict on any significant
issue between the Indemnifying Party and any Indemnified Party exists in respect
of such Third-Party Claim, then the Indemnifying Party shall reimburse the
Indemnified Party for the reasonable fees and expenses of one additional counsel
(who shall be reasonably acceptable to the Indemnifying Party); provided,
further, that if the Indemnifying Party fails to take steps reasonably necessary
to diligently pursue the defense of such Third-Party Claim within twenty (20)
Business Days of receipt of notice from the Indemnitee that such steps are not
being taken, the Indemnitee may assume its own defense and the Indemnifying
Party shall be liable for the reasonable costs thereof.
(c) The Indemnifying Party may settle any Third-Party Claim which it
has elected to defend so long as the written consent of the Indemnitee to such
settlement is first obtained (which consent shall not be unreasonably withheld).
The Indemnitee shall not settle any Third-Party Claim without the written
consent of the Indemnifying Party (which consent shall not be unreasonably
withheld).
(d) In the event that a Third-Party Claim involves a proceeding as to
which both Xxxxxxxx and Communications may be Indemnifying Parties, the parties
hereto agree to cooperate in good faith in a joint defense of such Third-Party
Claim.
(e) In the event of payment by or on behalf of any Indemnifying Party
to any Indemnitee in connection with any Third-Party Claim, such Indemnifying
Party shall be subrogated to and shall stand in the place of such Indemnitee as
to any events or circumstances in respect of which such Indemnitee may have any
right, defense or claim relating to such Third-Party Claim against any claimant
or plaintiff asserting such Third-Party Claim or against any other person. Such
Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner,
and at the cost and expense (including allocated costs of in-house counsel and
other personnel) of such Indemnifying Party, in prosecuting any subrogated
right, defense or claim.
SECTION 6.02. NON THIRD-PARTY CLAIMS. In the event that an Indemnified
Party should have a claim against the Indemnifying Party hereunder that does not
involve a claim or demand being asserted against or sought to be collected from
it by a third party, the Indemnified Party shall send a notice with respect to
such claim to the Indemnifying Party. The Indemnifying Party shall have sixty
(60) days from the date such notice is delivered during which to notify the
Indemnified Party in writing of any good faith objections it has to the
Indemnified Party's notice or claims for indemnification, setting forth in
reasonable detail each of the Indemnifying Party's
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objections thereto. If the Indemnifying Party does not deliver such written
notice of objection within such sixty-day period, the Indemnifying Party shall
be deemed to not have any objections to such claim. If the Indemnifying Party
does deliver such written notice of objection within such sixty (60) day period,
the Indemnifying Party and the Indemnified Party shall attempt in good faith to
resolve any such dispute within sixty (60) days of the delivery by the
Indemnifying Party of such written notice of objection. If the Indemnifying
Party and the Indemnified Party are unable to resolve any such dispute within
such sixty (60) day period, such dispute shall be resolved in accordance with
the Dispute Resolution Procedures set forth in the Amended and Restated
Separation Agreement of which this Agreement is an exhibit, and made a part
hereof.
ARTICLE VII
CONTRIBUTION
SECTION 7.01. CONTRIBUTION. If the Indemnification provided for in this
Agreement with respect to Communications Securities Liabilities or Xxxxxxxx
Securities Liabilities is for any reason held by a court or other tribunal to be
unavailable on policy grounds or otherwise, Xxxxxxxx and Communications shall
contribute to any Indemnifiable Losses relating to, resulting from or arising
out of the Communications Securities Liabilities or the Xxxxxxxx Securities
Liabilities in such proportion as to reflect each party's relative fault in
connection with such Indemnifiable Losses. The relative fault of the parties
shall be determined by reference to, among other things, whether the conduct or
information giving rise to the Indemnifiable Losses is attributable to Xxxxxxxx
or Communications and each party's relative intent, knowledge, access to
information and opportunity to prevent or correct the Indemnifiable Losses. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who is
not guilty of fraudulent misrepresentation.
ARTICLE VIII
COOPERATION
SECTION 8.01. COOPERATION. So long as any books, records and files
retained after the Effective Date by any member of the Xxxxxxxx Group, on the
one hand, or any member of the Communications Group on the other hand, relating
to the businesses, operations or assets of the other party and its subsidiaries
(including any books, records and files retained by any member of the
Communications Group relating to the conduct of its businesses or operations or
the ownership of its assets prior to the Effective Date) remain in existence and
are available, such other party shall have the right upon prior written notice
to inspect and copy the same at any time during business hours for any proper
purpose; provided that such right will not extend to any books, records or files
the disclosure of which in accordance herewith would result in a waiver of the
attorney-client, work-product or other privileges which permit non-disclosure of
otherwise relevant material in litigation or other proceedings, or which are
subject on the date hereof and at the time inspection is requested to a
non-disclosure agreement with a third party and a waiver cannot reasonably be
obtained. Xxxxxxxx and Communications agree that neither they nor any member of
the Xxxxxxxx Group or the Communications Group, as the case may be, shall
destroy
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such books, records or files without reasonable notice to the other party or if
such party receives within ten (10) Business Days of such notice any reasonable
objection from the other party to such destruction. Except in the case of
dispute between the parties hereto, each member of the Xxxxxxxx Group and each
member of the Communications Group shall cooperate with one another in a timely
manner in any administrative or judicial proceeding involving any matter
affecting the actual or potential liability of either party hereunder. Such
cooperation shall include, without limitation, making available to the other
party during normal business hours all books, records and information, and
officers and employees (without substantial disruption of operations or
employment) necessary or useful in connection with any inquiry, audit,
investigation or dispute, any litigation or any other matter requiring any such
books, records, information, officers or employees for any reasonable business
purpose. The party requesting or otherwise entitled to any books, records,
information, officers or employees pursuant to this Article VIII shall bear all
reasonable out-of-pocket costs and expenses (except for salaries, employee
benefits and general overhead) incurred in connection with providing such books,
records, information, officers or employees.
ARTICLE IX
EFFECTIVENESS
SECTION 9.01. EFFECTIVENESS. This Agreement is effective as of the
Effective Date.
ARTICLE X
SUCCESSORS AND ASSIGNS
SECTION 10.01. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the parties hereto and their respective successors and permitted assigns
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement may not be assigned by either
party hereto to any other person without the prior written consent of the other
party hereto.
ARTICLE XI
NO THIRD-PARTY BENEFICIARIES
SECTION 11.01. NO THIRD-PARTY BENEFICIARIES. Except for the persons
entitled to indemnification pursuant to Article II or Article III hereof, each
of whom is an intended third-party beneficiary hereunder, nothing expressed or
implied in this Agreement shall be construed to give any person or entity other
than the parties hereto any legal or equitable rights hereunder.
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ARTICLE XII
TAXATION OF PAYMENTS
SECTION 12.01. TAXATION OF PAYMENTS. (a) All sums payable by the
Indemnifying Party to the Indemnified Party under this Agreement shall be paid
free and clear of all deductions, withholdings, set-offs or counterclaims
whatsoever save only as may be required by law. If any deductions or
withholdings are required by law, the Indemnifying Party shall be obliged to pay
to the Indemnified Party such sum as will, after such deduction or withholding
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. If any authority imposes any Taxes on any sum paid to
the Indemnified Party under this Agreement (a "Tax Assessment"), then the amount
so payable shall be grossed up by such amount as will ensure that after payment
of the Tax Assessment there shall be left a sum equal to the amount that would
otherwise be payable under this Agreement.
(b) The Indemnified Party shall take any action and institute any
proceedings, and give any information and assistance, as the Indemnifying Party
may reasonably request, to dispute, resist, appeal, compromise, defend, remedy
or mitigate any Tax Assessment, in each case on the basis that the Indemnifying
Party shall indemnify the Indemnified Party for all reasonable costs incurred as
a result of a request by the Indemnifying Party.
(c) The Indemnified Party shall not admit liability in respect of, or
compromise or settle, a Tax Assessment without the prior written consent of the
Indemnifying party (such consent not to be unreasonably withheld or delayed).
ARTICLE XIII
ADDITIONAL MATTERS
SECTION 13.01. SURVIVAL OF INDEMNITIES. The rights and obligations of
each of Communications and Xxxxxxxx and their respective Indemnitees under
Article II and Article III, respectively, of this Agreement shall survive the
sale or other transfer by any party of any assets or businesses or the
assignment by it of any Liabilities.
SECTION 13.02. REMEDIES CUMULATIVE. The remedies provided in this
Agreement shall be cumulative and shall not, subject to the provisions of
Section 13.04 below, preclude assertion by any Indemnitee of any other rights or
the seeking of any and all other remedies against any Indemnifying Party.
SECTION 13.03. LIMITATION ON LIABILITY. No Indemnifying Party shall be
liable to an Indemnified Party under this Agreement in respect of consequential,
exemplary, special or punitive damages, or lost profits, except to the extent
such consequential, exemplary, special or punitive damages, or lost profits are
actually paid to a third party.
SECTION 13.04. TAX MATTERS. As set forth in Sections 2.01(a) and
3.01(a), all indemnification relating to Taxes shall be governed by the Tax
Sharing Agreement except as set forth in Section 12.01.
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ARTICLE XIV
ENTIRE AGREEMENT
SECTION 14.01. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes any prior or contemporaneous agreement or understanding between the
Parties regarding same including the Prior Agreement.
ARTICLE XV
AMENDMENT
SECTION 15.01. AMENDMENT. This Agreement may not be amended except by
an instrument signed by the parties hereto.
ARTICLE XVI
REMEDIES AND WAIVERS
SECTION 16.01. REMEDIES AND WAIVERS. No waiver of any term shall be
construed as a subsequent waiver of the same term, or a waiver of any other
term, of this Agreement. The failure of any party to assert any of its rights
hereunder will not constitute a waiver of any such rights. The single or partial
exercise of any right, power or remedy provided by law or under this Agreement
shall not preclude any other or further exercise thereof or the exercise of any
right, power or remedy. Except as provided in this Agreement, the rights, powers
and remedies provided in this Agreement are cumulative and not exclusive of any
rights, powers and remedies provided by law.
ARTICLE XVII
SEVERABILITY
SECTION 17.01. SEVERABILITY. If any provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, such provision shall be deemed severable and all other provisions of
this Agreement shall nevertheless remain in full force and effect.
ARTICLE XVIII
HEADINGS
SECTION 18.01. HEADINGS. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
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ARTICLE XIX
NOTICES
SECTION 19.01. NOTICES. All notices given in connection with this
Agreement shall be in writing. Service of such notices shall be deemed complete:
(i) if hand delivered, on the date of delivery; (ii) if by mail, on the fourth
Business Day following the day of deposit in the United States mail, by
certified or registered mail, first-class postage prepaid; (iii) if sent by
Federal Express or equivalent courier service, on the next Business Day; or (iv)
if by telecopier, upon receipt by sender of confirmation of successful
transmission. Such notices shall be addressed to the parties at the following
address or at such other address for a party as shall be specified by like
notice (except that notices of change of address shall be effective upon
receipt):
If to Xxxxxxxx:
The Xxxxxxxx Companies, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax No.: 918/000-0000
If to Communications:
Xxxxxxxx Communications Group, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax No.: 918/000-0000
ARTICLE XX
GOVERNING LAW
SECTION 20.01. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with, the laws of the State of Oklahoma, without giving
effect to the principles of conflict of laws of such state or any other
jurisdiction.
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ARTICLE XXI
COUNTERPARTS
SECTION 21.01. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
THE XXXXXXXX COMPANIES, INC.
BY: /s/ XXXX X. XXXXXXXX
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NAME: Xxxx X. XxXxxxxx
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TITLE: Senior Vice President
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XXXXXXXX COMMUNICATIONS GROUP, INC.
BY: /s/ XXX X. XXXXX
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NAME: Xxx X. XxXxx
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TITLE: Senior Vice President
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