EXHIBIT 10.7
INDEMNITY AGREEMENT
INDEMNITY AGREEMENT (the "Agreement") dated as of ___________ ___,
200_, by and among [insert whichever Xxxx Atlantic or Vodafone Affiliate is
party to the Transaction Agreement], a ___________ corporation ("Partner
Party"), [ insert whichever of Xxxx Atlantic or Vodafone is the ultimate parent
entity of the Partner Party] , a ______________ corporation ("Parent") and
Wireless Partnership, a Delaware general partnership ("Partnership" ).
PREAMBLE
Xxxx Atlantic Corporation ("Xxxx Atlantic") and Vodafone AirTouch Plc
("Vodafone") have entered into a U.S. Wireless Alliance Agreement, dated
as of September 21, 1999 (as amended, the "Alliance Agreement"). All terms
used herein and not defined herein shall have the meaning ascribed thereto
in the Alliance Agreement. Partner Party has entered into a [insert title
of purchase/sale agreement], dated _____________ (the "Transaction
Agreement"), with _______________ (the "Transaction Party") pursuant to
which Partner Party has agreed to sell certain assets, property rights,
liabilities and obligations (the "Sold Assets and Liabilities") which
constitute a Xxxx Atlantic Other Disposition, a Vodafone Other
Disposition, a Conflict-Related System or a Conflicted System and/or has
agreed to acquire certain assets, property rights, liabilities and
obligations (the "Acquired Assets and Liabilities") which constitute
proceeds of a Xxxx Atlantic Other Disposition, a Vodafone Other
Disposition, a Conflict-Related System or a Conflicted System. This
Agreement is being entered into in accordance with the provisions of
Section 2.4.6 or 2.5.5 of the Alliance Agreement.
NOW, THEREFORE, in consideration of the Preamble and the terms,
conditions, representations, warranties, covenants, agreements and provisions
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Certain Definitions.
"Sell-Side Transaction Agreement Indemnification Claim" means any claim
for indemnification under the Transaction Agreement against any member of the
Indemnified Transaction Group.
"Buy-Side Transaction Agreement Indemnification Right" means any
right to indemnification of the Partner Party under the Transaction Agreement
against the Transaction Party or any other person.
"Indemnified Transaction Group" means each of the Partner Party and if the
Parent is Vodafone each Indemnified Vodafone Party or, if the Parent is Xxxx
Atlantic, each Indemnified Xxxx Atlantic Party.
2. Status of Transaction Agreement. Nothing contained herein shall
constitute an assignment by the Partner Party of the Transaction Agreement or
any right, title or interest of the Partner Party therein or obligation
thereunder. This Agreement provides for the arrangement between the parties
hereto as to the indemnification rights and obligations of the parties hereto
with respect to the Sold Assets and Liabilities and the Acquired Assets and
Liabilities.
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3. Sell-Side Indemnification by the Partnership.
(a) General Sell-Side Indemnity Obligations. Subject to the terms hereof,
the Partnership shall indemnify and hold harmless each member of the
Indemnified Transaction Group from and against any Losses that such member of
the Indemnified Transaction Group may sustain, suffer or incur and that result
from, arise out of or relate to any Sell-Side Transaction Agreement
Indemnification Claim. Any payment pursuant to the foregoing sentence to a
person who is a Partner of the Partnership shall be made pursuant to Section
6.8(e) of the Partnership Agreement; any payment pursuant to the foregoing
sentence to any person other than a Partner shall be made directly to such
person.
(b) Certain Limitations on Sell-Side Transaction Agreement
Indemnifications Claims. Notwithstanding Section 3(a), nothing contained in
this Agreement shall affect the Partnership's rights against any member of an
Indemnified Transaction Group pursuant to Articles VIII or IX of the Alliance
Agreement (any such right, if capable of being asserted against such member
after taking into account all relevant limitations and restrictions contained
in such Articles, being "Alliance Agreement Claims") and no Loss resulting
from, arising out of or relating to Alliance Agreement Claims shall be a Loss
as to which indemnification under Section 3(a) shall be available.
4. Buy-Side Indemnification by Partner Party. The Partner Party shall
indemnify and hold harmless the Partnership for any Losses that the Partnership
may sustain, suffer or incur and that result from, arise out of or relate to
any of the Acquired Assets and Liabilities but only to the extent that the
Partner Party both (a) has a Buy-Side Transaction Agreement Indemnification
Right with respect to such Loss, and (b) has actually received proceeds in
respect of a Buy-Side Transaction Agreement Indemnification Right for such Loss
and then only to the extent of such proceeds received from time to time
(determined on an after-tax basis calculated as 40% of the gain or income
recognized for federal income tax purposes).
5. Sell-Side Indemnification Claim Procedure. If a member of the
Indemnified Transaction Group seeks indemnification from the Partnership
hereunder with respect to a Sell-Side Transaction Agreement Indemnification
Claim to which the Indemnified Transaction Group is entitled to indemnification
from the Partnership pursuant to Section 3 hereof (an "Action"), it shall give
the Partnership prompt notice of the institution of such Action, and the
Partnership, with counsel reasonably satisfactory to Parent and at the
Partnership"s expense, shall act as agent for the members of the Indemnified
Transaction Group in the defense of such Action; provided, however, that the
Partnership shall not consent to the entry of any judgment or enter into any
settlement, that (x) does not include as an unconditional term thereof the
giving by the claimant or plaintiff to the Indemnified Transaction Group of a
complete release therefrom, or (y) provides for injunctive or other
non-monetary relief affecting any member of the Indemnified Transaction Group,
except with the written consent of such member (which consent shall not be
unreasonably withheld, delayed or conditioned). The members of the Indemnified
Transaction Group shall render all assistance and cooperation to the
Partnership (at Partnership"s sole expense) which the Partnership may request
in defense of any such Action including, without limitation, the making of
witnesses and documents available for depositions, interrogatories and court
proceedings. Any failure to give prompt notice and to tender the defense of an
Action pursuant hereto shall not bar a right to claim indemnification
hereunder, except to the extent that the Partnership shall have been harmed by
such failure.
6. Buy-Side Indemnification Procedure. Upon the request of the
Partnership, the Partner Party and Parent shall appoint the Partnership their
respective agent and attorney-in-fact to enforce in the name of the Partner
Party and, where applicable, the Parent, but at the sole cost and expense of
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the Partnership, all Buy-Side Transaction Agreement Indemnification Rights that
the Partner Party or the Parent may have from time to time. At the reasonable
request of the Partnership, the Partner Party and, where applicable, the Parent
will or will cause its Affiliates to execute, acknowledge and deliver to the
Partnership such documents, certifications and further assurances as the
Partnership may reasonably require to better enable the Partnership to enforce
such Buy-Side Transaction Agreement Indemnification Rights
7. Contents of Agreement; Parties in Interest; etc. This Agreement and the
other Transaction Documents set forth the entire understanding of the parties
hereto with respect to the transactions contemplated hereby. This Agreement
shall not be amended or modified except by written instrument duly executed by
each of the parties hereto. Any and all previous agreements and understandings
between or among the parties regarding the subject matter hereof, whether
written or oral, are superseded by this Agreement and the other Transaction
Documents.
8. Delaware Law to Govern. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State of Delaware,
without regard to the principles of conflict of law thereof.
9. No Benefit to Others. Except as expressly provided herein, the
covenants and agreements contained in this Agreement are for the sole benefit
of the parties hereto and they shall not be construed as conferring any rights
on any other Persons.
IN WITNESS WHEREOF, the parties have caused this Indemnity Agreement to be
duly executed by their duly authorized representatives as of the date first
written above.
[Signature block for Partner Party]
By:
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Print Name:
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Title:
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[Signature block for ParENt]
By:
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Print Name:
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Title:
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CELLCO PARTNERSHIP, a Delaware
general partnership
By:
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Print Name:
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Title:
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