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EXHIBIT 10.38
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of _________, 1999 (the
"Agreement"), by and between Western Wireless Corporation, a Washington
corporation ("WWC"), and VoiceStream Wireless Corporation, a Washington
corporation ("VoiceStream", WWC and VoiceStream are sometimes individually
referred to herein as a "Party" and collectively as the "Parties").
WHEREAS, WWC and VoiceStream are parties to that certain Agreement and
Plan of Distribution, dated as of ______________, 1999, pursuant to which, among
other things, WWC has agreed, upon the terms and conditions set forth therein,
to distribute the shares of VoiceStream's Common Stock, no par value (the
"Common Stock"), owned by it, which shares represent 80.1% of the issued and
outstanding shares of Common Stock, to WWC's shareholders on the basis of one
share of Common Stock for each one share of WWC's outstanding common stock (the
"Spin Off");
WHEREAS, WWC and Xxxxx Xxxxxxxxx (the "Employee") have entered into an
Employment Agreement, dated as of _________, 199_ (the "Employment Agreement"),
setting forth, among other things, the terms of the Employee's employment by
WWC; and
WHEREAS, as of the effective date of the Spin-Off (the "Spin-Off
Effective Date"), WWC desires to assign to VoiceStream, and VoiceStream desires
to assume, all of WWC's rights and obligations under the Employment Agreement on
the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, WWC and VoiceStream agree as
follows:
1. Assignment and Assumption of the Employment Agreement. On and as of
the Spin-Off Effective Date, WWC hereby transfers, assigns and conveys to
VoiceStream all of WWC's rights and interests in, and VoiceStream hereby
accepts, assumes and agrees to perform and discharge all of the obligations
arising from and after the Spin-Off Effective Date under, the Employment
Agreement.
2. (a) Indemnification of WWC by VoiceStream. VoiceStream shall
indemnify and hold harmless WWC, its subsidiaries and affiliates and its and
their respective shareholders, members, managers, officers, employees, agents
and/or the legal representatives of any of them (each, a "WWC Indemnified
Party"), from and against any and all demands, claims, losses, liabilities,
actions or causes of action, assessments, damages, fines, fees, penalties, costs
and expenses, including, without limitation, interest, expenses of
investigation, reasonable fees and disbursements of counsel, accountants and
other experts (collectively, "Losses") (whether arising out of or relating to
matters asserted by third parties against a WWC Indemnified Party or incurred or
sustained by such WWC Indemnified Party in the absence of a third party claim)
that
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arise after the Spin-Off Effective Date (a) under the Employment Agreement,
(b) by reason of the Employee's employment by VoiceStream after the Spin-Off
Effective Date, or (c) any default by VoiceStream in the performance of its
obligations under the Employment Agreement.
(b) Indemnification of VoiceStream by WWC. WWC shall indemnify and hold
harmless VoiceStream, its subsidiaries and affiliates and its and their
respective shareholders, members, managers, officers, employees, agents and/or
the legal representatives of any of them (each, a "VoiceStream Indemnified
Party"), from and against any and all Losses (whether arising out of or relating
to matters asserted by third parties against a VoiceStream Indemnified Party or
incurred or sustained by such VoiceStream Indemnified Party in the absence of a
third party claim) that arise out of or result from (a) the assignment to
VoiceStream of the Employment Agreement, (b) the Employee's employment by WWC on
or prior to the Spin-Off Effective Date, or (c) any default by WWC prior to the
Spin-Off Effective Date in the performance of its obligations under the
Employment Agreement.
(c) Procedures.
(i) In the event that any VoiceStream Indemnified Party or WWC
Indemnified Party (each an "Indemnified Party") shall sustain or incur any
Losses in respect of which indemnification may be sought by such Indemnified
Party pursuant to this Section 2, the Indemnified Party shall assert a claim for
indemnification by giving prompt notice to the applicable indemnifying party
(the "Indemnifying Party) under Section 2 and shall thereafter keep the
Indemnifying Party reasonably informed with respect thereto; provided that
failure of the Indemnified Party to give the Indemnifying Party notice as
provided herein shall not relieve the Indemnifying Party of any of its
obligations hereunder, except to the extent that the Indemnifying Party is
materially prejudiced by such failure. Upon the Indemnifying Party's receipt of
such notice, the Indemnifying Party shall have the right to assume, conduct and
control the defense, compromise or settlement thereof, by written notice to the
Indemnified Party of its intention to do so within thirty (30) days after
receipt of the notice, with counsel reasonably satisfactory to the Indemnified
Party, at the Indemnifying Party's own expense, and thereupon to prosecute in
the name and on behalf of the Indemnified Party any available cross-claims,
counter-claims or third-party claims arising with respect to the claim. If the
Indemnifying Party shall assume the defense of such claim, it shall not settle
such claim unless such settlement includes as an unconditional term thereof the
giving by the claimant or the plaintiff of a release of the Indemnified Party,
reasonably satisfactory to the Indemnified Party, from all liability with
respect to such claim. As long as the Indemnifying Party is contesting any such
claim in good faith and on a timely basis, the Indemnified Party shall not pay
or settle any such claim. Notwithstanding the assumption by the Indemnifying
Party of the defense of any claim as provided in this Section 2(c) and without
limiting the Indemnifying Party's right to assume, conduct and control the
defense, compromise or settlement thereof, the Indemnified Party shall be
permitted to join in the defense of such claim and to employ counsel at its own
expense. Assumption by the Indemnifying Party of the defense of any claim shall
not be deemed a concession by the Indemnifying Party that it is required to
indemnify the Indemnified Party for the subject matter of such claim.
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(ii) If the Indemnifying Party shall fail to notify the
Indemnified Party of its desire to assume the defense of such claim within the
prescribed 30-day period set forth in Section 2(c)(i) or shall notify the
Indemnified Party that it will not assume the defense of any such claim, then
the Indemnified Party may defend any such claim, in which event it may do so in
such manner as it may deem appropriate, and the Indemnifying Party shall be
bound by any determinations made in any litigation with respect to such claim or
any settlement thereof effected by the Indemnified Party, provided that any such
determinations or settlement shall not affect the right of the Indemnifying
Party to dispute the Indemnified Party's claim for indemnification. Unless and
until the Indemnified Party assumes the defense of any claim, the Indemnifying
Party shall advance to the Indemnified Party any of its reasonable attorneys'
fees and other costs and expenses incurred in connection with the defense of any
such action or proceeding.
3. Representations and Warranties.
Each of WWC and VoiceStream hereby represents and warrants to the other
as follows:
(a) It is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation with full
power and authority to execute, deliver and perform its obligations under this
Agreement;
(b) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on its part and this Agreement
constitutes its legal, valid and binding obligation enforceable against it in
accordance with its terms; and
(c) Neither the execution, delivery or performance of this
Agreement by it, nor the consummation of the transactions contemplated hereby
will, with or without the giving of notice of passage of time, or both, conflict
with, result in a default or loss of rights (or give rise to any right of
termination, cancellation or acceleration) under, (i) any provision of its (or
any of its subsidiaries') certificate of incorporation or by-laws, (ii) any
material note, bond, indenture, mortgage, deed of trust, contract, agreement,
lease or other instrument or obligation to which it, or any of its subsidiaries,
is a party or by which it, or any of its subsidiaries, or its, or any of its
subsidiaries', properties may be bound or affected, or (iii) any law, order,
judgment, ordinance, rule, regulation or decree to which it, or any of its
subsidiaries, is a party or by which it, or any of its subsidiaries, or any of
its, or any of its subsidiaries', properties are bound or affected.
4. Effectiveness. This Agreement shall become effective only upon the
Spin-Off Effective Date. If the Spin-Off Effective Date does not occur on or
before December 31, 1999, this Agreement shall terminate and be of no further
force and effect whatsoever.
5. Notices. All notices, claims or other communications hereunder shall
be in writing and shall be given by delivery in person, by facsimile
transmission, by registered or
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certified mail (return receipt requested), postage prepaid, or overnight carrier
guaranteeing next day delivery:
(a) to VoiceStream:
3650 000 Xxxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxx, Esq.
3650 000 Xxxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
and:
Xxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000)-000-0000
(b) to WWC:
3650 000 Xxxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
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with a copy to:
Xxxx X. Xxxxxx, Esq.
3650 000 Xxxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
and:
Xxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000)-000-0000
or to such other address as any Party may from time to time furnish to the other
by a notice given in accordance with the provisions of this Section 5. All such
notices and communications shall be deemed to have been duly given at the time
delivered by hand, if personally delivered; five (5) business days after being
deposited in the mail, first class postage prepaid, return receipt requested, if
mailed; when receipt confirmed, if sent by facsimile; and the next business day
after timely delivery to the courier, if sent by an overnight air courier
service guaranteeing next day delivery.
6. Waiver; Amendments. This Agreement may be amended, modified or
supplemental only by written agreement of the Parties. No provision in this
Agreement shall be deemed waived except by an instrument in writing signed by
the Party waiving such provision. Any waiver by any Party of any of its rights
under this Agreement or of any breach of this Agreement shall not constitute a
waiver of any other rights or of any other or future breach.
7. Cumulative Remedies. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any Party
shall not preclude or waive its right to use any or all other remedies except as
otherwise expressly provided in this Agreement. Such rights and remedies are
given in addition to any other rights the Parties may have by law, statute,
ordinance or otherwise.
8. Successors, Assigns and Transferees. This Agreement shall inure to
the benefit of, and be binding upon, the successors and assigns of each Party.
9. Entire Agreement. This Agreement constitutes the entire understanding
of the Parties with respect to the subject matter hereof and supersedes all
prior understandings among the Parties with respect to such subject matter.
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10. Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall be considered the same agreement.
11. Applicable Law. This Agreement will be governed by and construed and
interpreted in accordance with the laws of the State of Washington without
reference to conflicts of laws principles.
12. Section Headings. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
13. Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
WESTERN WIRELESS CORPORATION
By:
---------------------------------
Name:
Title:
VOICESTREAM WIRELESS CORPORATION
By:
---------------------------------
Name:
Title:
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