Exhibit 99.4
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT (the "Agreement"), is dated as of
September 17, 1999, among VOICESTREAM WIRELESS CORPORATION, a Washington
corporation ("VoiceStream"), VOICESTREAM WIRELESS HOLDING CORPORATION, a
Delaware corporation ("Holding"), (VoiceStream and Holding are hereinafter
referred to collectively as "Parent"), AERIAL COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), AERIAL OPERATING COMPANY, INC., a Delaware
corporation ("Operating Company"), and TELEPHONE AND DATA SYSTEMS, INC., a
Delaware corporation ("TDS").
W I T N E S S E T H:
WHEREAS, the Company, Parent and VoiceStream Subsidiary III
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("Sub"), are parties to that certain Agreement and Plan of Reorganization dated
the date hereof (the "Reorganization Agreement"), providing for, among other
things, the merger (the "Merger") of Sub with and into the Company, with the
Company surviving as a wholly-owned subsidiary of Parent (as such, the
"Surviving Corporation");
WHEREAS, on June 1, 1998, TDS, the Company and Operating
Company entered into a Purchase Agreement (the "Purchase Agreement") with Sonera
Ltd., a limited liability company organized under the laws of the Republic of
Finland ("Investor"), pursuant to which Investor agreed to purchase an aggregate
of 2,410,482 shares (the "Purchased Shares") of common stock of Operating
Company ("Operating Company Shares") for an aggregate purchase price of
$200,000,000 (the "Purchase Price");
WHEREAS, on August 31, 1998, in anticipation of the closing of
the Purchase Agreement, (1) TDS and Operating Company entered into a Revolving
Credit Agreement (the "Revolving Credit Agreement"); and (2) the Company
executed a Guaranty, dated as of August 31, 1998 (the "Company Guaranty"), in
favor of TDS;
WHEREAS, on September 8, 1998 (the "Investor Closing Date"),
the parties consummated the closing of the Purchase Agreement by taking the
following actions: (1) Investor purchased the Purchased Shares from Operating
Company in consideration for the transfer by Investor to Operating Company of
the Purchase Price; (2) Investor, TDS, the Company and Operating Company entered
into an Investment Agreement (the "Investment Agreement"); (3) Investor and the
Company entered into a Registration Rights
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Agreement (the "Investor Registration Rights Agreement"); (4) Investor, TDS and
the Company entered into a side letter (the "Management Side Letter"); (5)
Sonera Corporation U.S., a Delaware corporation and wholly-owned subsidiary of
Investor ("Sonera U.S."), the Company and Operating Company entered into a Joint
Venture Agreement (the "Joint Venture Agreement"); (6) Investor, the Company and
Operating Company entered into a Supplemental Agreement (the "Supplemental
Agreement"); and (7) TDS, the Company and Operating Company entered into a Tax
Allocation Agreement (the "Tax Allocation Agreement") (the Purchase Agreement,
Investment Agreement, Investor Registration Rights Agreement, Management Side
Letter, Joint Venture Agreement, Supplemental Agreement, Tax Allocation
Agreement, Revolving Credit Agreement and Company Guaranty being hereafter
collectively referred to as the "Investor Arrangements");
WHEREAS, following the Investor Closing Date, Investor
asserted that the Company and TDS misrepresented and failed to disclose certain
material facts to Investor, thereby inducing it to pay an excessive price for
the Operating Company Shares, and has requested that certain provisions of the
Investor Arrangements be renegotiated, including the Purchase Price for the
Operating Company Shares, and has raised the possibility of litigation in
connection therewith;
WHEREAS, under the Purchase Agreement, the number of Operating
Company Shares purchased by Investor is subject to reduction if the average
price of the Company Common Shares exceeds certain threshold prices;
WHEREAS, as of July 7, 1999, the average price of the Company
Common Shares exceeded all of the threshold prices set forth in the Purchase
Agreement and, pursuant to the Purchase Agreement, the Company has requested
that Investor surrender for cancellation an aggregate of 634,216 Operating
Company Shares (the "Cancelled Shares");
WHEREAS, Investor has refused to surrender the Cancelled
Shares and has objected to the application of such adjustments in connection
with the assertions that it has made;
WHEREAS, TDS, the Company, and Operating Company expressly
deny that they have any liability to Investor in connection with the assertions
made by Investor with respect to the Investor Arrangements or otherwise, and
deny that Investor has any right to refuse to surrender the Cancelled Shares;
WHEREAS, as a condition of entering into the Reorganization
Agreement, Parent has required that Parent and its Affiliates be indemnified and
held harmless with respect to any Claims by Investor; and
WHEREAS, TDS has agreed to indemnify Parent and its Affiliates
pursuant to the terms of this Agreement;
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NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, the parties hereto agree as follows:
Section 1. Definitions.
"Affiliate" when used with respect to a specified Person,
shall mean another Person that controls, is controlled by, or is under common
control with the Person specified. As used in this Agreement, "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or other interests, by contract or otherwise.
"Claim" shall mean any demand, action, claim, counterclaim,
cross-claim, cause of action, or lawsuit existing now or in the future, asserted
by an Investor Group Member against any Potential Party, whether currently known
or unknown, accrued or unaccrued, foreseen or unforeseen, arising out of or
resulting from any alleged act or failure to act occurring prior to the
Effective Time. Notwithstanding anything to the contrary in this Agreement, the
definition of "Claim": (a) is intended to include any Claim by an Investor Group
Member with respect to (i) any asserted right of an Investor Group Member to the
Cancelled Shares, or (ii) in connection with the exercise of the tag-along
rights pursuant to Section 10.6 of the Investment Agreement (the "Tag-Along
Rights") with respect to the Operating Company Shares owned by Investor on the
date hereof, any asserted right of an Investor Group Member to receive shares of
Company Common Stock in excess of the number of shares indicated in the Company
Letter to which Investor is entitled upon the exercise of the Tag-Along Rights
with respect to such Operating Company Shares; and (b) is not intended to
include any Claim by an Investor Group Member with respect to the Investor
Agreement to be executed among Investor, Holding and Wireless, the Stock
Subscription Agreement to be executed between Investor and Holding or the
Registration Rights Agreement to be executed between Investor and Holding, in
each case to be dated on or about the date hereof.
"Dispute" shall have the meaning set forth in Section 4.1.
"Indemnity Claim" shall have the meaning set forth in
Section 2.2.
"Indemnity Claim Notice" shall have the meaning set forth in
Section 2.2.
"Indemnity Claim Notice Termination Date" shall have the
meaning set forth in Section 2.3(a).
"Investor Arrangements" shall have the meaning set forth in
the recitals to this Agreement.
"Investor Group Member" shall mean Investor, Sonera U.S. and
their parents,
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Subsidiaries and Affiliates, and their respective successors and permitted
assigns.
"Loss" or "Losses" shall mean any loss, liability, judgment,
settlement payment, damage, fee, cost or expense (including interest, penalties,
and the reasonable fees, disbursements and expenses of attorneys, accountants
and other professional advisors) imposed on or incurred by a Parent Indemnitee,
resulting from or arising out of either: (i) a Claim asserted by an Investor
Group Member against such Parent Indemnitee; or (ii) a claim asserted by an
officer, director, employee or agent of a Parent Indemnitee against such Parent
Indemnitee for indemnification with respect to a Claim asserted by an Investor
Group Member against such officer, director, employee or agent, but only to the
extent that such Parent Indemnitee determines in good faith that indemnification
of such officer, director, employee or agent with respect thereto is required by
the applicable indemnification provisions set forth in the certificate or
articles of incorporation or bylaws of such Parent Indemnitee or by the
applicable corporation law of the state in which such Parent Indemnitee is
incorporated. Notwithstanding anything to the contrary in this Agreement, the
definition of "Loss": (a) is intended to include any Loss imposed on or incurred
by a Parent Indemnitee with respect to (i) any asserted right of an Investor
Group Member to the Cancelled Shares, or (ii) in connection with the exercise of
the Tag-Along Rights pursuant to Section 10.6 of the Investment Agreement with
respect to the Operating Company Shares owned by Investor on the date hereof,
any asserted right of an Investor Group Member to receive shares of Company
Common Stock in excess of the number of shares indicated in the Company Letter
to which Investor is entitled upon the exercise of the Tag-Along Rights with
respect to such Operating Company Shares; and (b) is not intended to include any
Loss imposed on or incurred by a Parent Indemnitee with respect to the Investor
Agreement to be executed among Investor, Holding and Wireless, the Stock
Subscription Agreement to be executed between Investor and Holding or the
Registration Rights Agreement to be executed between Investor and Holding, in
each case to be dated on or about the date hereof.
"Parent Indemnitees" shall have the meaning set forth in
Section 2.1.
"Potential Party" or "Potential Parties" shall mean the
Company, Operating Company, Parent, each of their respective parents,
Subsidiaries and Affiliates, each of their respective successors and permitted
assigns, and each of their respective officers, directors, employees and agents.
All other capitalized terms used but not otherwise defined
herein shall have the meanings set forth in the Reorganization Agreement.
Section 2. Indemnification of Parent
2.1 Indemnification. Except as otherwise provided herein, TDS shall
defend, indemnify, hold harmless, and reimburse Parent and its Subsidiaries,
including the Company and its Subsidiaries, and each of their respective
Affiliates, successors and
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permitted assigns (collectively, the "Parent Indemnitees"), from and against any
Claim or Loss imposed on or incurred by Parent Indemnitees in the manner
provided in this Agreement.
2.2 Notice and Payment of Indemnity Claim by TDS.
(a) Parent shall give prompt written notice (an "Indemnity
Claim Notice") to TDS on behalf of any Parent Indemnitee seeking
indemnification hereunder of any Claim or Loss with respect to which
the Parent Indemnitee seeks to be indemnified (the "Indemnity Claim").
Such Indemnity Claim Notice shall state the nature of the Indemnity
Claim and the amount of any Claim, if known, or Loss. With respect to
an Indemnity Claim Notice delivered to TDS in connection with a Claim,
TDS shall, subject to paragraph (b) hereof, assume the defense thereof
pursuant to Section 3.1. With respect to an Indemnity Claim Notice
delivered to TDS in connection with a Loss, TDS shall, subject to
paragraph (b) hereof, promptly reimburse Parent with respect to such
Loss.
(b) If TDS does not agree that the Parent Indemnitee is
entitled to indemnification with respect to any such Claim or Loss
hereunder, TDS shall give prompt notice to Parent and such dispute
shall be resolved in the manner described in Section 4 hereof. TDS
shall be required to give such notice to Parent no later than the date
(the "TDS Response Date") occurring ten (10) days prior to the date on
which any action is required to be taken by any Parent Indemnitee with
respect to any Claim or Loss, provided that each of the following
conditions is satisfied: (1) the Indemnity Claim Notice clearly
identifies such TDS Response Date; and (2) Parent provides the
Indemnity Claim Notice to TDS sufficiently in advance of the TDS
Response Date to enable TDS to adequately assess the Claim or Loss and
reach a determination regarding the obligations of TDS with respect
thereto, taking into account the time at which Parent became aware of
the Claim or Loss.
2.3 Limitations. Notwithstanding anything to the contrary herein:
(a) TDS shall not have any liability to any Parent Indemnitee
under this Agreement or otherwise for any Claim or Loss thirty (30)
days after the expiration of all statutes of limitations applicable to
such Claim or Loss (the "Indemnity Claim Notice Termination Date"),
except to the extent that such Claim or Loss results from a lawsuit
filed or arbitration proceeding commenced by an Investor Group Member
against a Potential Party of which TDS receives an Indemnity Claim
Notice pursuant to Section 2.2 prior to the Indemnity Claim Notice
Termination Date.
(b) This Agreement shall serve as the sole and exclusive
remedy, and shall be in lieu of any other right or remedy, of any
Parent Indemnitee for Claims or Losses and for any other claims by any
Parent Indemnitee against TDS and its Subsidiaries, and any of their
respective Affiliates, officers, directors, employees, agents,
successors and permitted assigns, in any way relating to the Investor
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Arrangements.
Section 3. Responsibilities and Duties of Parties.
3.1 Control of Litigation or Settlement of Claim.
(a) Subject to the provisions in Sections 3.1(b) and 3.1(c)
hereof, TDS shall have the sole right and obligation to conduct and
control, on behalf of any and all Potential Parties, the litigation or
settlement of any Claim, including the assumption of the defense
thereof, the choosing and hiring of counsel and the payment of all
associated fees and expenses.
(b) Parent, on behalf of the Potential Parties, shall have the
right to employ separate counsel and to monitor (but not control) the
litigation of any Claim, but the fees and expenses of monitoring such
litigation, including the fees and expenses of such separate counsel,
shall be at the expense of Parent; provided, however, that Parent shall
be entitled to be indemnified by TDS for its fees and expenses of
counsel if each of the following conditions is satisfied: (1) TDS has
given notice pursuant to Section 2.2 hereof asserting that TDS does not
agree that a Parent Indemnitee is entitled to indemnification; (2)
Parent has promptly submitted such dispute for resolution pursuant to
Section 4 hereof, provided that Parent shall be deemed to have
satisfied this condition by giving notice of a dispute to TDS; and (3)
it is ultimately determined pursuant to Section 4 hereof that such
Parent Indemnitee is entitled to indemnification by TDS under this
Agreement.
(c) Notwithstanding anything to the contrary in the Agreement,
in the event that an action or proceeding is brought by an Investor
Group Member against a Potential Party which includes both a Claim and,
separately or as a part of the Claim, a cause of action, claim,
counterclaim or cross-claim against a Potential Party which is not a
Claim as defined herein (an "Unindemnified Cause"), then TDS shall have
the right, but not the obligation, to conduct and control the defense
of such action or proceeding in its entirety on behalf of the Potential
Parties. In the event that TDS elects to conduct and control the
defense of such action or proceeding on behalf of the Potential
Parties, TDS shall be solely responsible for the payment of the fees
and expenses of the litigation counsel or any experts retained for the
litigation together with other litigation costs. In the event that TDS
elects not to conduct and control the defense of such action or
proceeding on behalf of the Potential Parties, then Parent shall have
the obligation to conduct and control the defense of the action or
proceeding on behalf of the Potential Parties and shall be solely
responsible for payment of the fees and expenses of the litigation
counsel or any experts retained for the litigation together with other
litigation costs. Regardless of whether TDS elects to conduct and
control on behalf of Potential Parties the defense of an action or
proceeding that is subject to this Section 3.1(c), TDS and Parent agree
that the responsibility for any damages award, other
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monetary judgment or settlement obligation incurred by a Parent
Indemnitee as a result of such an action or proceeding subject to this
Section 3.1(c) shall be allocated between TDS and Parent either by
agreement of the parties or, in the absence of such agreement, pursuant
to the arbitration provisions set forth in Section 4.4 of this
Agreement, based on an assessment and determination of the amount of
the damages award, other monetary judgment or settlement obligation
incurred by a Parent Indemnitee attributable to the Claim compared to
the amount of the damages award, other monetary judgment or settlement
obligation incurred by the Parent Indemnitee attributable to an
Unindemnified Cause.
(d) Anything in this Agreement to the contrary
notwithstanding, TDS shall have the sole right, without the prior
consent of any Potential Party, to settle or compromise any Claim or
consent to the entry of any judgment with respect to any Claim unless
such settlement, compromise or judgment imposes a criminal penalty or
equitable remedy on or with respect to such Potential Party, or a
non-monetary condition or obligation which could reasonably be expected
to have a material adverse effect on the ongoing business operations of
a Potential Party. No Potential Party shall settle or compromise any
Claim without the prior written consent of TDS, which consent may be
withheld at the sole discretion of TDS; provided that, in the event
that such Claim is the subject of a dispute regarding the obligation of
TDS to provide indemnification pursuant to Section 2.2(b) hereof and it
is ultimately determined pursuant to Section 4 hereof that TDS is not
obligated to provide such indemnification, then such consent may not be
unreasonably withheld by TDS.
(e) Each Potential Party shall reasonably cooperate in all
respects with TDS in all matters relating to the litigation or
settlement of any Claim, including without limitation, making documents
and witnesses reasonably available to TDS, entering into a joint
defense agreement, and taking all such other actions as TDS may
reasonably request to enable it to prepare for, conduct, and control
any litigation or potential litigation relating to such Claim.
(f) Notwithstanding anything to the contrary in this
Agreement, but subject to the provisions of Section 3.1(b) hereof, if
for any reason TDS is prevented by any Potential Party, or any Person
purporting to act on behalf of any of them, from conducting and
controlling in a material manner the defense of any Claim, including
without limitation the failure of a Potential Party to fully comply
with Section 3.1(e) hereof, TDS shall, at its sole election, have no
obligations under this Agreement to any party with respect to such
Claim or any Loss incurred in connection therewith. The right of TDS to
make the election provided for in this Section 3.1(f) with respect to
such Claim or Loss shall be subject to the dispute resolution
provisions of Section 4 hereof.
3.2 Authority of TDS. Not in limitation of the general
authority granted to TDS
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pursuant to Section 3.1 but subject to all limitations included in this
Agreement, TDS shall have full power and authority on behalf of all Potential
Parties (i) to take all actions which TDS considers necessary or desirable in
connection with the defense, pursuit or settlement of any Claim, including to
arbitrate, ▇▇▇, defend, claim, counterclaim, cross-claim, negotiate, settle,
compromise and otherwise handle any such dispute or claim, and to amend or
terminate any of the Investor Arrangements, (ii) to engage and employ agents and
representatives (including accountants, legal counsel and other professionals)
and to incur such other expenses as it shall deem necessary or prudent in
connection with the administration of the foregoing, and (iii) to take all other
actions and exercise all other rights which TDS in its sole discretion considers
necessary or appropriate in connection with the foregoing. All decisions and
acts by TDS within the scope of Section 3.1 and this Section 3.2 shall be
binding upon all of the Potential Parties.
3.3 No Admission. Neither this Agreement nor any of the negotiations in
connection herewith or any prior negotiations or discussions shall be construed
as or deemed to be an admission of the truth of any allegation or the validity
of any claim by any Investor Group Member against TDS or any Potential Party or
by TDS or any Potential Party against any other Potential Party or TDS or used
in any other proceeding except one brought to enforce the terms of this
Agreement.
Section 4. Resolution of Disputes Relating to this Agreement.
4.1 Informal Dispute Resolution. Subject to Section 4.5, any dispute,
controversy, claim or disagreement between TDS, on the one hand, and any Parent
Indemnitee, on the other hand, arising from, relating to or in connection with
this Agreement, including questions regarding the interpretation, meaning or
performance of the Agreement, and including claims based on contract, tort,
common law, equity, statute, regulation, order or otherwise ("Dispute") shall be
resolved in accordance with this Section 4.
4.2 Level 1 Review. Upon written request of either TDS or Parent, each
of TDS, on its own behalf, and Parent, on behalf of itself and each other Parent
Indemnitee, shall appoint a designated representative whose task it will be to
meet within twenty days for the purpose of endeavoring to resolve such Dispute
("Level 1 Review"). The designated representatives shall meet as often as the
parties reasonably deem necessary to discuss the Dispute and negotiate in good
faith in an effort to resolve the Dispute without the necessity of any formal
proceeding.
4.3 Mediation. If the Dispute cannot be resolved within thirty days
after the first Level 1 Review meeting ("Level 1 Termination Date"), TDS and
Parent shall submit the Dispute to mediation in accordance with the Commercial
Mediation Rules of the American Arbitration Association ("AAA") and shall bear
equally the costs of the mediation. TDS and Parent will act in good faith to
jointly appoint a mutually acceptable mediator, seeking assistance in such
regard from the AAA within thirty days of the Level 1 Termination Date.
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TDS and Parent agree to participate in good faith in the mediation and
negotiations related thereto for a period of thirty calendar days commencing
with the selection of the mediator and any extension of such period as mutually
agreed to by TDS and Parent.
4.4 Arbitration.
(a) If TDS and Parent cannot agree to a mediator within thirty
calendar days after the ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ Date or if the Dispute is
not resolved within thirty calendar days after the beginning of the
mediation and any extension of such periods as mutually agreed to by
TDS and Parent, the Dispute shall be submitted to, and finally
determined by, binding arbitration in accordance with the following
provisions of this Section 4.4, regardless of the amount in controversy
or whether such Dispute would otherwise be considered justiciable or
ripe for resolution by a court or arbitration panel.
(b) Any such arbitration shall be conducted by the AAA in
accordance with its current Commercial Rules ("AAA Rules"), except to
the extent that the AAA Rules conflict with the provisions of this
Agreement, in which event the provisions of this Agreement shall
control.
(c) The arbitration panel (the "Panel") shall consist of three
neutral arbitrators ("Arbitrators"), each of whom shall be an attorney
having ten or more years experience, and shall be appointed in
accordance with the AAA Rules (the "Basic Qualifications").
(d) Should an Arbitrator refuse or be unable to proceed with
arbitration proceedings as called for by this Agreement, a substitute
Arbitrator possessing the Basic Qualifications shall be appointed by
the AAA. If an Arbitrator is replaced after the arbitration hearing has
commenced, then a rehearing shall take place in accordance with the
provisions of this Agreement and the AAA Rules.
(e) The arbitration shall be conducted in Denver, Colorado, or
in such other location as TDS and Parent may designate by mutual
written consent; provided, that the Panel may from time to time
convene, carry on hearings, inspect property or documents and take
evidence at any location which the Panel deems appropriate.
(f) The Panel may in its discretion order a pre-exchange of
information including production of documents, exchange of summaries of
testimony or exchange of statements of position, and shall schedule
promptly all discovery and other procedural steps and otherwise assume
case management initiative and control to effect an efficient and
expeditious resolution of the Dispute.
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(g) At any oral hearing of evidence in connection with any
arbitration conducted pursuant to this Agreement, each of TDS and
Parent and their respective legal counsel shall have the right to
examine their own witnesses and to cross-examine the witnesses of the
other party. No testimony of any witness shall be presented in written
form unless the opposing party shall have the opportunity to
cross-examine such witness, except as TDS and Parent otherwise agree in
writing and except under extraordinary circumstances where, in the
opinion of the Panel, the interests of justice require a different
procedure.
(h) Within thirty calendar days after the closing of the
arbitration hearing, the Panel shall prepare and distribute to TDS and
Parent a written award, setting forth the Panel's findings of fact and
conclusions of law relating to the Dispute, including the reasons for
the giving or denial of any requested remedy or relief. The Panel shall
have the authority to award any remedy or relief that a court of
competent jurisdiction could order or grant, and shall award interest
on any monetary award from the date that the loss or expense was
incurred by the successful party. In addition, the Panel shall have the
authority to decide issues relating to the interpretation, meaning or
performance of this Agreement or the relationships of the parties
hereunder, even if such decision would constitute an advisory opinion
in a court proceeding or if the issues would otherwise not be ripe for
resolution in a court proceeding, and any such decision shall bind the
parties in their performance of this Agreement. The decision of the
arbitrators as to the validity and amount of any Indemnity Claim shall
be binding and conclusive.
(i) Except as necessary in court proceedings to enforce this
arbitration provision or an award rendered hereunder, or to obtain
interim relief, or as provided in Section 4.5, or as otherwise required
by law (including the federal securities laws and the rules of any
applicable securities exchange), neither any party nor any arbitrator
shall disclose the existence, content or results of any arbitration
conducted hereunder without the prior written consent of the other
parties.
(j) To the extent that the relief or remedy granted in an
award rendered by the Panel is relief or a remedy on which a court
could enter judgment, a judgment upon the award rendered by the Panel
may be entered in any court having jurisdiction thereof. Otherwise, the
award shall be binding on the parties in connection with their
obligations under this Agreement and in any subsequent arbitration or
judicial proceedings among any of the parties.
(k) The prevailing party in any arbitration shall be entitled
to an award of reasonable attorneys' fees and costs, and all costs of
arbitration shall be paid by the losing party, subject in each case to
a determination by the Panel as to which party is the prevailing party
and the amount of such fees and costs to be allocated to such party,
taking into consideration the relative merits of the positions
advocated by each party in such arbitration proceeding.
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(l) Notwithstanding the choice of law provision set forth in
Section 6.4, The Federal Arbitration Act, 9 U.S.C. Sections 1 to 14,
except as modified hereby, shall govern the interpretation and
enforcement of this Agreement.
4.5 Recourse to Courts and Other Remedies. Notwithstanding the Dispute
resolution procedures contained in Sections 4.1, 4.2, 4.3 and 4.4, any party may
apply to any court having jurisdiction (i) to enforce this agreement to
negotiate, mediate and arbitrate, (ii) to seek provisional injunctive relief so
as to maintain the status quo until the arbitration award is rendered or the
Dispute is otherwise resolved, (iii) to avoid the expiration of any applicable
limitation period, (iv) to preserve a superior position with respect to other
creditors or (v) to challenge or vacate any final judgment, award or decision of
the Panel that does not comport with the express provisions of this Agreement.
4.6 Expenses. Each of TDS and Parent shall be responsible for such
party's costs and expenses related to such Dispute, including attorneys' fees,
except as otherwise set forth herein.
Section 5. Representations and Warranties. Each of the parties hereto represents
and warrants to each of the other parties hereto that it is a corporation duly
organized, validly existing and in good standing (to the extent such concept
exists) under the laws of its jurisdiction of formation; that it has the
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder; that the execution, delivery and performance
of this Agreement by it has been duly authorized and approved by all necessary
corporate action; that this Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms; and that the
execution, delivery and performance of this Agreement by it will not result in a
breach of or loss of rights under or constitute a default under or a violation
of its charter or bylaws or any trust (constructive or other), agreement,
judgment, decree, order or other instrument to which it is a party or it or its
properties or assets may be bound.
Section 6. Miscellaneous.
6.1 Benefit; Successor and Assigns; Parties in Interest. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns but shall not be assignable by any
party hereto without the written consent of all of the other parties hereto;
provided, however, that Parent may assign its rights and delegate its
obligations hereunder to any successor corporation in the event of a merger,
consolidation or transfer or sale of all or substantially all of Parent's stock
or assets. Nothing in this Agreement, expressed or implied, is intended or shall
be construed to confer upon any Person, other than the parties hereto and their
successors and permitted assigns, any right, remedy or claim under or by reason
of this Agreement.
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6.2 Termination.
(a) This Agreement shall be terminated prior to the Effective
Time on the occurrence of either of the following events:
(i) the mutual written agreement of each of the
parties hereto; or
(ii) the termination of the Reorganization Agreement
pursuant to Section 8.1 thereof.
(b) This Agreement shall terminate at the Effective Time if
both of the following conditions are satisfied:
(i) each of VoiceStream, Holding, the Company,
Operating Company, TDS, Investor and Sonera U.S. have entered
into the Settlement Agreement and Release currently under
negotiation among the parties; and
(ii) each of the parties thereto executes and
delivers the Bring-Down Amendment pursuant to Section 8.4 of
the Settlement Agreement and Release.
(c) Following the Effective Time, this Agreement shall
terminate on the occurrence of either of the following events:
(i) the mutual written agreement of each of the
parties hereto; or
(ii) the first date on which there has been a final
determination of all unresolved Indemnity Claims set forth in
each Indemnity Claim Notice received by TDS prior to the
Indemnity Claim Notice Termination Date and, if applicable,
payment thereof to Parent.
6.3 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, sent by overnight
courier (providing proof of delivery) or telecopied (with a confirmatory copy
sent by overnight courier) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
If to any Parent Indemnitee (including the Company and
Operating Company after the Effective Time) to:
VoiceStream Wireless
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to TDS or its Affiliates (including the Company and
Operating Company prior to the Effective Time) to:
Telephone and Data Systems, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as any such party shall designate in writing to the
parties hereto.
6.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF.
6.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.6 Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of
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this Agreement.
6.7 Partial Invalidity. Wherever possible, each provision hereof shall
be interpreted in such manner as to be effective and valid under applicable law,
but in case any one or more of the provisions contained herein shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
provision shall be ineffective in the jurisdiction involved to the extent, but
only to the extent, of such invalidity, illegality or unenforceability without
invalidating the remainder of such invalid, illegal or unenforceable provision
or provisions or any other provisions hereof, unless such a construction would
be unreasonable.
6.8 Entire Agreement; Modification and Waiver. This Agreement together
with the Reorganization Agreement and the agreements contemplated thereby embody
the entire agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersede any and all prior agreements and
understandings relating to the subject matter hereof. No amendment, modification
or waiver of this Agreement shall be binding or effective for any purpose unless
it is made in a writing signed by the party against whom enforcement of such
amendment, modification or waiver is sought. No course of dealing between the
parties to this Agreement shall be deemed to affect or to modify, amend or
discharge any provision or term of this Agreement. No delay by any party to or
any beneficiary of this Agreement in the exercise of any of its rights or
remedies shall operate as a waiver thereof, and no single or partial exercise by
any party to or any beneficiary of this Agreement of any such right or remedy
shall preclude any other or further exercise thereof. A waiver of any right or
remedy on any one occasion shall not be construed as a bar to or waiver of any
such right or remedy on any other occasion.
* * * *
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
TELEPHONE AND DATA SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
AERIAL COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Chairman
AERIAL OPERATING COMPANY, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
VOICESTREAM WIRELESS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President - Strategy,
Finance and Development
VOICESTREAM WIRELESS HOLDING
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President-Strategy,
Finance and Development
SIGNATURE PAGE TO INDEMNITY AGREEMENT RELATING TO
MERGER OF AERIAL COMMUNICATIONS INC.
15
