Exhibit 10.37
EXECUTION COPY
XXXXX INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this "Agreement") is executed as of
February 22nd, 2001, by and among the following parties:
UBIQUITEL COMPANIES:
1. UbiquiTel Inc., a Delaware corporation ("UbiquiTel Parent");
2. UbiquiTel Operating Company, a Delaware corporation and
wholly-owned subsidiary of UbiquiTel Parent ("UbiquiTel");
UBIQUITEL AFFILIATES (INDIVIDUALLY, A "MERGER SUB" AND COLLECTIVELY, THE "MERGER
SUBS"):
1. UVMS I, Inc., a California corporation and wholly-owned
subsidiary of UbiquiTel Parent ("Merger Sub I");
2. UVMS II, Inc., a California corporation and wholly-owned
subsidiary of UbiquiTel Parent ("Merger Sub II");
3. UVMS III, Inc., a California corporation and wholly-owned
subsidiary of UbiquiTel Parent ("Merger Sub III");
4. UVMS IV, Inc., a California corporation and wholly-owned
subsidiary of UbiquiTel Parent ("Merger Sub IV");
5. UVMS V, Inc., a California corporation and wholly-owned
subsidiary of UbiquiTel Parent ("Merger Sub V");
6. UVMS VI, Inc., a California corporation and wholly-owned
subsidiary of UbiquiTel Parent ("Merger Sub VI");
XXXXX:
1. X.X. Xxxxx Inc., a California corporation ("Xxxxx");
THE XXXXX STOCKHOLDERS:
1. The individual Xxxxx stockholders, who in the aggregate own
at least 95% of the issued and outstanding capital stock of Xxxxx, listed on
Exhibit A attached ("Xxxxx Stockholders").
RECITALS
A. UbiquiTel Parent, UbiquiTel, the Merger Subs, VIA Wireless,
LLC, a California limited liability company ("LLC"), the Members, including
Central Valley Cellular Inc., a California corporation and wholly-owned
subsidiary of Xxxxx ("CVC"), and the Stockholders, including the Xxxxx
Stockholders, have entered into a Merger Agreement of even date ("Merger
Agreement") pursuant to which UbiquiTel Parent will acquire all of the
Members' Interests of LLC. To acquire the Member's Interest of CVC, Merger Sub V
may merge with and into Evan (the "Xxxxx Merger").
X. Xxxxx has engaged in various business activities in addition
to its ownership of CVC. The parties agree that UbiquiTel Parent, UbiquiTel
and the Merger Subs shall not incur any liabilities with respect to such
business activities. To that end, UbiquiTel Parent, UbiquiTel, the Merger Subs
and the Xxxxx Stockholders have agreed that as a condition to UbiquiTel Parent
and UbiquiTel's execution of the Merger Agreement and the payment of the
Merger Consideration to the Stockholders, including the Xxxxx Stockholders,
each of the Xxxxx Stockholders will indemnify UbiquiTel Parent, UbiquiTel and
the Merger Subs with respect to the conduct of the business of Xxxxx (other
than the business of CVC) prior to the Closing Date (as defined in the Merger
Agreement).
C. Capitalized terms used herein and not otherwise defined
shall have the meaning attributed to them in the Merger Agreement.
NOW, THEREFORE, the parties agree as follows:
1. INDEMNIFICATION OF UBIQUITEL. In the event the Xxxxx Mergers
occurs, subject to the terms and conditions of this Agreement, the Xxxxx
Stockholders, jointly and severally, shall defend, indemnify and hold harmless
UbiquiTel Parent, UbiquiTel, the Merger Subs, their Affiliates, and Xxxxx (but
only as the surviving corporation in a merger with Merger Sub V), and their
respective directors, officers, employees, agents, advisors, attorneys,
accountants, and consultants (collectively, the "UbiquiTel Indemnitees"), from
and against, and promptly reimburse the UbiquiTel Indemnitees for, any loss,
expense, damage, deficiency, liability, claim or obligation, including
investigative costs, costs of defense, settlement costs, and attorneys' and
accountants' fees (collectively, "Losses") that any UbiquiTel Indemnitee
suffers or incurs or to which any UbiquiTel Indemnitee becomes subject,
whether arising before or after the Effective Time, which Losses arise out of
or in connection with or relate to the activities and business of Xxxxx (other
than the business of CVC) prior to the Effective Time, including without
limitation any and all claims by third parties (governmental or private) for
business torts, breach of contract, and claims for malicious or intentional
misconduct, fraud, personal injury, property damage, worker's compensation,
and Taxes. For the avoidance of doubt, the indemnification obligations
provided by this Agreement do not extend to losses arising out of the business
and operations of the LLC. Notwithstanding the foregoing, the Xxxxx
Stockholders shall be responsible for Taxes only to the extent such Taxes (i)
have not been paid by Xxxxx on or before the Closing Date, and (ii) have not
been taken into account in computing Net Assets pursuant to Section
1.2(b)(ii)(B) of the Merger Agreement or the Tax Return adjustment amount
pursuant to Section 1.2(b)(ii)(B)(III) of the Merger Agreement.
2. SHARE OF LIABILITY. If any Xxxxx Stockholder ("Paying
Stockholder") is required to pay or is held liable for any amount with respect
to an indemnified claim, each of the other Xxxxx Stockholders ("Remaining
Xxxxx Stockholders") shall be liable to the Paying Stockholder for, and shall
contribute to and hold the Paying Stockholder harmless from and against, an
amount equal to such Stockholder's proportionate share of such liability
(based upon the aggregate dollar value of the Merger Consideration received by
such Stockholder pursuant to the Merger Agreement) as adjusted to account for
a default by any Stockholder in meeting its obligations hereunder. Any such
amounts shall be paid within five days of the date any Paying Stockholder is
held liable for, or is required to pay, an indemnified claim.
3. PAYMENTS. All indemnification payments made under this
Agreement shall be made to UbiquiTel and deemed adjustments to the Merger
Consideration received by the Xxxxx Stockholders.
4. EXCLUSIVITY. In the absence of fraud, the indemnification
provisions of this Agreement shall be the exclusive remedy for any Losses.
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5. NOTICE AND OPPORTUNITY TO DEFEND.
(a) NOTICE, ETC. If a UbiquiTel Indemnitee receives
notice of any third-party claim or commencement of any third-party action or
proceeding (an "Asserted Liability") with respect to which the Xxxxx
Stockholders are obligated to provide indemnification pursuant to this
Agreement, such UbiquiTel Indemnitee shall promptly give all Xxxxx
Stockholders notice thereof. The failure of a UbiquiTel Indemnitee so to
notify an Xxxxx Stockholder shall not cause any UbiquiTel Indemnitee to lose
its rights to indemnification under this Agreement, except to the extent that
such failure materially prejudices an Xxxxx Stockholder's ability to defend
against an Asserted Liability that such Xxxxx Stockholder has the right to
defend against hereunder (and except as otherwise set forth in this
Agreement). Such notice shall describe the Asserted Liability in reasonable
detail, and if practicable shall indicate the amount (which may be estimated)
of the Losses that have been or may be asserted by a UbiquiTel Indemnitee.
Upon receiving such written notice, each of the Xxxxx Stockholders shall
defend against the Asserted Liability on behalf of a UbiquiTel Indemnitee
using counsel selected by Xxxxx Stockholders, unless (i) the UbiquiTel
Indemnitee reasonably objects to the assumption of such defense on the grounds
that counsel for such Xxxxx Stockholder cannot represent both such UbiquiTel
Indemnitee and such Xxxxx Stockholder because such representation would be
reasonably likely to result in a conflict of interest or because there may be
defenses available to such UbiquiTel Indemnitee that are not available to such
Xxxxx Stockholder, (ii) such Xxxxx Stockholder is not capable (by reason of
insufficient financial capacity, bankruptcy, receivership, liquidation,
managerial deadlock, managerial neglect or similar events) of maintaining a
reasonable defense of such action or proceeding, or (iii) the action or
proceeding seeks injunctive or other equitable relief against such UbiquiTel
Indemnitee. In the event that a UbiquiTel Indemnitee has elected to defend
against an Asserted Liability under clause (i) or (iii) above, Xxxxx
Stockholders shall be entitled to participate in such defense through counsel
selected by them to the extent necessary to mitigate their liability under
this Agreement. In the event the Xxxxx Stockholders elect to conduct the
defense, they are entitled to have exclusive control over the defense and
settlement thereof and the UbiquiTel Indemnitees will cooperate and make
available to the Xxxxx Stockholders such assistance and materials as they may
reasonably request, at the Xxxxx Stockholders' expense. Notwithstanding the
foregoing, the Xxxxx Stockholders shall not be entitled to control, but may
participate in, and the UbiquiTel Indemnitees shall be entitled to have sole
control over, the defense or settlement of any claim that (i) seeks a
temporary restraining order, preliminary or permanent injunction or specific
performance against the UbiquiTel Indemnitees, or (ii) would impose liability
on the part of the UbiquiTel Indemnitees for which the UbiquiTel Indemnitees
are not entitled to indemnification hereunder. If the Xxxxx Stockholders fail
promptly to defend, contest, or otherwise protect in a timely manner against
any such Asserted Liability, the UbiquiTel Indemnitee shall have the right,
but not the obligation, to defend, contest, or otherwise protect against the
same.
(b) DEFENSE COSTS. If any Xxxxx Stockholder defends an
Asserted Liability in accordance with Section 5(a), it shall do so at its own
expense and shall be responsible for the costs of defense, investigative
costs, attorneys' fees or other expenses incurred to defend the Asserted
Liability (collectively, the "Defense Costs"). If the UbiquiTel Indemnitees
assume the defense of an Asserted Liability by reason of clauses (i), (ii) or
(iii) of subsection (a) above, or because the Xxxxx Stockholders fail to
assume the defense, then such Xxxxx Stockholders shall indemnify the UbiquiTel
Indemnitees for their Defense Costs; PROVIDED, HOWEVER, the Xxxxx Stockholders
shall not be liable for the costs of more than one counsel for all UbiquiTel
Indemnitees in any one jurisdiction.
(c) SETTLEMENT. An Xxxxx Stockholder may settle any
Asserted Liability (i) without the consent of the Ubiquitel Indemnittees, if
such settlement requires only the payment of money and provides a complete
release for the UbiquiTel Indemnitees, or (ii) the UbiquiTel Indemnitees
consent to the settlement. At the request of an Xxxxx Stockholder, a UbiquiTel
Indemnitee shall join in any settlement that complies with this Section 5(c)
to the extent necessary to conclude it.
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(d) COOPERATION; ACCESS TO BOOKS AND RECORDS. A
UbiquiTel Indemnittee asserting a right to indemnification under this
Agreement shall cooperate in and with the Xxxxx Stockholders in the defense of
an Asserted Liability to the extent such cooperation is reasonably necessary;
provided, however, that the Xxxxx Stockholders shall reimburse the UbiquiTel
Indemnitee for its reasonable out-of-pocket expenses. After the Closing Date,
the Xxxxx Stockholders shall retain custody of the books and records of Xxxxx
(the "Records"), in safekeeping, for the joint benefit of the parties. The
Xxxxx Stockholders shall advise UbiquiTel of the location of the Records and
shall make them available to UbiquiTel for inspection or copying, or shall
make available to UbiquiTel copies of such Records that UbiquiTel shall
request.
6. DELAYS OR OMISSIONS, ETC. Except as provided in Section 5(a)
(NOTICE AND OPPORTUNITY TO DEFEND), no delay or omission to exercise any
right, power or remedy inuring to any party under this Agreement shall impair
any such right, power or remedy of such party nor shall it be construed to be
a waiver of any such breach or default, or an acquiescence therein, or of or
in any similar breach or default thereafter occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring.
7. GOVERNING LAW. This Agreement shall be governed by, and
construed, interpreted and applied in accordance with the internal laws of the
State of New York. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts in the state of New
York, or if the courts of such state are not available, then to the exclusive
jurisdiction of the state and federal courts of Pennsylvania, for the purposes
of any action brought to enforce a right of indemnification under this
Agreement. To the extent permitted by applicable law, each party hereby waives
and agrees not to assert, by way of motion, as a defense or otherwise in any
such action, any claim (i) that it is not subject to the jurisdiction of the
above-named courts, (ii) that the action is brought in an inconvenient forum,
(iii) that it is immune from any legal process with respect to itself or its
property, (iv) that the venue of the suit, action or proceeding is improper or
(v) that this Agreement, or the subject matter hereof or thereof, may not be
enforced in or by such courts.
8. MISCELLANEOUS.
8.1 SUCCESSORS AND ASSIGNS. The provisions hereof shall
inure to the benefit of, and be binding upon, the permitted assigns,
successors, heirs, executors and administrators of the parties hereto. This
Agreement may not be assigned without the written consent of UbiquiTel Parent
and the Xxxxx Stockholders and any attempted assignment without such consent
shall be null and void; PROVIDED, HOWEVER, UbiquiTel Parent, UbiquiTel and the
Merger Subs may assign any of its rights and obligations hereunder to any
Affiliate that agrees in writing to be bound hereby.
8.2 AMENDMENT. The parties hereto may modify or amend
this Agreement by written agreement executed and delivered by duly authorized
officers of the respective parties. This Agreement may not be modified or
amended except by written agreement executed and delivered by each of the
respective parties.
8.3 NOTICES, ETC. All notices and other communications
required or permitted hereunder shall be in writing and shall be sent by
certified or registered mail, postage prepaid with return receipt requested,
telecopy (with hard copy delivered by overnight courier service), or delivered
by hand, messenger or overnight courier service, and shall be deemed given
when received at the addresses or telecopy numbers of the parties set forth in
the Merger Agreement or at such other address or telecopy number furnished in
the manner provided in the Merger Agreement.
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8.4 THIRD PARTY BENEFICIARY, ETC. There shall be no
third party beneficiary hereof. Neither the availability of, nor any limit on,
any remedy hereunder limits the remedies of any party hereto against third
parties.
8.5 REFORMATION; SEVERABILITY. In case any provision
hereof shall be invalid, illegal or unenforceable, such provision shall be
reformed to best effectuate the intent of the parties and permit enforcement
hereof, and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby. If such
provision is not capable of reformation, it shall be severed from this
Agreement and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
8.6 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one and the same instrument.
8.7 TITLES AND SUBTITLES. The titles of the paragraphs
and subparagraphs hereof are for convenience of reference only and are not to
be considered in construing this Agreement.
8.8 ENTIRE AGREEMENT. This Agreement (including the
exhibits hereto), the Merger Agreement and Related Agreements, and the other
documents delivered pursuant hereto and thereto and referenced herein and
therein, constitute the full and entire understanding and agreement between
the parties with respect to the subject matters set forth herein and therein
and supersede any other agreements, written or oral, with regard to the
subject matter hereof.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the undersigned have executed this INDEMNIFICATION
AGREEMENT as of the date first set forth above.
UBIQUITEL COMPANIES:
UBIQUITEL INC.
By:
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Name:
Title:
UBIQUITEL OPERATING COMPANY
By:
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Name:
Title:
UBIQUITEL AFFILIATES:
UVMS I, INC.
By:
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Name:
Title:
UVMS II, INC.
By:
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Name:
Title:
UVMS III, INC.
By:
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Name:
Title:
UVMS IV, INC.
By:
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Name:
Title:
[SIGNATURE PAGE TO INDEMNIFICATION AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this INDEMNIFICATION
AGREEMENT as of the date first set forth above.
UVMS V, INC.
By:
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Name:
Title:
UVMS VI, INC.
By:
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Name:
Title:
XXXXX
X.X. XXXXX INC.
By:
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Name:
Title:
THE XXXXX STOCKHOLDERS
IRREVOCABLE TRUST UNDER THE WILL OF
XXXX X. XXXXX
By:
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Name: XXXX X. XXXXX
Title: TRUSTEE
X.X. XXXXX FAMILY LIMITED
PARTNERSHIP
By:
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Name: XXXX X. XXXXX
Title: GENERAL PARTNER
XXXX XXXXX VILAS 1990 TRUST
By:
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Name: XXXX X. XXXXX, XX.
Title: TRUSTEE
By:
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Name: XXXXX XXXX XXXXXX
Title: TRUSTEE
[SIGNATURE PAGE TO INDEMNIFICATION AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this INDEMNIFICATION
AGREEMENT as of the date first set forth above.
THE XXX AND XXXXX XXXXXX
CHARITABLE REMAINDER TRUST II
By:
-------------------------------------
Name: XXX XXXXXX
Title: TRUSTEE
By:
-------------------------------------
Name: XXXXX XXXX XXXXXX
Title: TRUSTEE
By:
-------------------------------------
Name: XXX XXXXXX
Title: SPECIAL TRUSTEE
THE XXXX AND XXXXX XXXXX
CHARITABLE REMAINDER TRUST II
By:
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Name: XXXX X. XXXXX, XX.
Title: TRUSTEE
By:
-------------------------------------
Name: XXXXX XXXXX
Title: TRUSTEE
By:
-------------------------------------
Name: XXX XXXXXX
Title: SPECIAL TRUSTEE
[SIGNATURE PAGE TO INDEMNIFICATION AGREEMENT]
EXHIBIT A
XXXXX STOCKHOLDERS
The Xxxxx signatories to this Agreement constitute the holders of at
least 95% of the issued and outstanding stock of X.X. Xxxxx, Inc.
