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EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered into
this 1st day of September, 1999, by and between The Xxxxxxxx Companies,
Inc., a Delaware corporation ("Xxxxxxxx"), and Xxxxxxxx Communications Group,
Inc., a Delaware corporation ("Communications"),
WITNESSETH:
WHEREAS, Communications plans to sell shares of its Class A Common Stock,
par value $.01 per share ("Common Stock"), to the public in an underwritten
Initial Public Offering ("Initial Public Offering") and to SBC Communications
Inc., pursuant to a Securities Purchase Agreement dated as of February 8, 1999,
and
WHEREAS, Communications plans to sell approximately $1.3 billion in
aggregate principal amount senior notes due (the "Notes") to the public in an
underwritten offering (the "Notes Offering," and together with the Initial
Public Offerings, the "Offerings"), and
WHEREAS, Xxxxxxxx will continue to hold all of the issued and outstanding
Class B Common Stock of Communications, par value $.01 per share, after the
closing of the Initial Public Offering, and
WHEREAS, in connection with each of the Notes Offering and the Initial
Public Offering, Communications has filed a Registration Statement with the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended ("1933 Act") and
WHEREAS, each of Xxxxxxxx and Communications desires to indemnify the other,
and to be indemnified by the other, against certain liabilities relating to,
arising out of or resulting from their respective businesses, operations and
assets and the above-mentioned Registration Statement, on the terms set forth in
the Agreement,
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:
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"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.
"CLOSING" means the consummation of the purchase and sale of shares of the
Common Stock pursuant to the Initial Public Offering and the consummation of the
purchase and sale of the Notes pursuant to the Notes Offering.
"CLOSING DATE" means the date on which the Closing occurs.
"COMMUNICATIONS GROUP" shall mean 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 Notes Offering or the Initial Public
Offering, 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.
"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).
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"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.
"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 relating to the Notes Offering or the
Initial Public Offering or any amendment or supplement thereto.
"REGISTRATION RIGHTS AGREEMENT" means that certain Registration Rights
Agreement by and between Xxxxxxxx and Communications dated as of the date
hereof.
"REGISTRATION STATEMENT" means any Registration Statement filed with the SEC
in connection with the Notes Offering or the Initial Public Offering and any
amendment or supplement thereto.
"TAX ASSESSMENT" shall have the meaning ascribed to it in Section 12.01(a).
"TAX SHARING AGREEMENT" means that certain Tax Sharing Agreement between
Xxxxxxxx and Communications dated as of the date hereof.
"TAXES" means any and all taxes (including interest, penalties and additions
to tax), fees and charges (including sales, use, excise, value added, personal
property and other taxes) imposed by any federal, state or local or government
tax authority in the United States of America or by any foreign government or
taxing authority.
"THIRD-PARTY CLAIM" shall have the meaning ascribed to it in Section
5.01(a).
"UNDERWRITING AGREEMENTS" means, collectively: (i) that certain underwriting
agreement with respect to the Initial Public Offering to be executed by and
among Xxxxxx Brothers Inc., Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxxx Lynch, Pierce,
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Xxxxxx & Xxxxx Incorporated, CIBC Oppenheimer, Credit Suisse First Boston,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and NationsBanc Xxxxxxxxxx
Securities LLC (as representatives of the U.S. underwriters for the Initial
Public Offering) as well as Xxxxxx Brothers International (Europe), Salomon
Brothers International Limited, Xxxxxxx Xxxxx International, CIBC Oppenheimer,
Credit Suisse First Boston (Europe) Limited, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation and NationsBanc Xxxxxxxxxx Securities LLC (as
representatives of the international underwriters for the Initial Public
Offering); and (ii) that certain underwriting agreement with respect to the
Notes Offering to be executed by and among Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxx Brothers Inc., Xxxxxxx Xxxxx Xxxxxx Inc., CIBC Oppenheimer,
Credit Suisse First Boston, Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
and NationsBanc Xxxxxxxxxx Securities LLC (as representatives of the
underwriters for the Notes Offering).
"XXXXXXXX GROUP" means Xxxxxxxx and each of its direct and indirect
subsidiaries other than members of the Communications Group.
"XXXXXXXX GUARANTEE" means any guarantee, surety or performance bond, letter
of credit or other contractual arrangement in effect as of the Closing 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.
"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 or 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 the Notes Offering or the Initial Public
Offering, 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.
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.
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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 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 arising prior to the Closing Date determined, in
a manner consistent with the principles of tax liability allocation 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
the Notes Offering or the Initial Public Offering, including, without
limitation, the Registration Rights 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.
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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 arising prior to the Closing Date determined, in
a manner consistent with the principles of tax liability allocation 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 the Notes
Offering or the Initial Public Offering, including, without limitation, the
Registration Rights 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 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.
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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.
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.
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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 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.
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(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 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 submitted to the Separation Committee in accordance with the
procedures set forth in Section [xx] of the Separation Agreement.
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
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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 Closing 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 Closing 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 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.
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ARTICLE IX
EFFECTIVENESS
SECTION 9.01 EFFECTIVENESS. This Agreement shall become effective at
Closing.
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.
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.
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(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. Except as set forth in the Tax Sharing Agreement
and in Sections 2.01(a) and 3.01(a), all indemnification relating to Taxes shall
be governed by the Tax Sharing Agreement
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.
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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.
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
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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: Xxxxxxx X. xxx Xxxxx
Fax No.: 918/000-0000
If to Communications:
Xxxxxxxx Communications Group, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
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.
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.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
THE XXXXXXXX COMPANIES, INC.
BY: /s/ XXXXX X. XXXX
------------------------------------
NAME: Xxxxx X. Xxxx
TITLE: Treasurer
XXXXXXXX COMMUNICATIONS GROUP, INC.
BY: /s/ XXXXX X. XXXXXXXX
------------------------------------
NAME: Xxxxx X. Xxxxxxxx
TITLE: Chief Financial Officer
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