Exhibit 10.11
AGREEMENT
THIS AGREEMENT is made and entered into as of January __, 2000 by and
among XXXXXX COMMUNICATIONS CORPORATION, an Oklahoma corporation ("Xxxxxx")
and the holders of issued and outstanding shares of Xxxxxx'x common stock
listed on Schedule A annexed hereto (the "Shareholders") with reference to
the following circumstances:
X. Xxxxxx'x board of directors has approved the distribution of the
stock of Logix Communications Enterprises, Inc. ("Logix") to the Shareholders
(the "Distribution").
B. Based on the opinion of Xxxxxx Xxxxxxxx dated __________, Xxxxxx,
Logix and the Shareholders believe that Xxxxxx will not incur any income tax
resulting from the Distribution, provided the Shareholders do not take, or
cause or permit Logix to take, any action which action by the Shareholders or
Logix would cause Xxxxxx to realize taxable income as a result of the
Distribution on or before the second anniversary of the Distribution (a
"Prohibited Action").
C. The parties desire to set forth their understanding and agreements
with respect to their respective rights and obligations if income tax is due
from Xxxxxx as a result of a Sale.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. SHAREHOLDER AGREEMENT. The Shareholders agree that they will
not, and they will not cause or permit Logix to, consummate a Prohibited
Action that results in Xxxxxx incurring taxable income from the Distribution
pursuant to Section 355(e) of the Internal Revenue Code of 1986, as amended;
provided, however, that the Shareholders may take one or more Prohibited
Actions if either:
a) The taxable income recognized by Xxxxxx from the
Distribution pursuant to Section 355(e) does not exceed the
sum of Xxxxxx'x tax basis in the Logix stock plus the
aggregate net operating losses of Xxxxxx legally available
to offset against such taxable income; or
b) Logix executes an indemnity agreement with Xxxxxx reasonably
satisfactory whereby Logix will indemnify Xxxxxx for any
income tax, together with any penalties or interest thereon
(collectively, the "Income Tax"), incurred by Xxxxxx as a
result of a Prohibited Action (the "Indemnity Agreement")
and Logix is financially capable of performing its
obligations under the Indemnity Agreement.
The Shareholders or their representative and Xxxxxx must certify as to the
existence of facts or circumstances necessary to meet Section 1(a) and 1(b)
above prior to consummating a Prohibited Action. Any Indemnity Agreement
executed by Logix and Xxxxxx pursuant to Section 1(b) above will contain
terms mutually agreeable to Logix and Xxxxxx. For purposes of calculating any
income tax liability under Section 1(b) above, the amount of income taxes
will be determined after the application of the aggregate net operating
losses of Xxxxxx legally available to offset taxable income incurred under
Section 355(e) as a result of the Distribution. Logix will not be liable for
any income tax liability incurred under Section 355(e) that arises from the
actions taken by, or omitted to be taken by Xxxxxx following the Distribution.
2. OBLIGATION TO NOTIFY. The Shareholders agree to notify Xxxxxx of
a pending Prohibited Action. Each of the parties agrees to notify the other
party if any applicable taxing authority (a "Taxing Authority") asserts that
Xxxxxx must pay income tax because of the Distribution.
3. PROCEDURE. If a Taxing Authority claims that Xxxxxx must pay
income tax as a result of a Prohibited Action for which Logix is responsible
under the Indemnity Agreement, Logix shall have control over the defense
or prosecution of any proceedings related to such claim (a "Claim"). Logix
shall not have the right to settle any Claim unless Xxxxxx would be released
of any and all liability with respect to the facts giving rise to the Claim.
Logix shall give Xxxxxx five (5) days notice prior to settling any such Claim
and Xxxxxx shall have the right to approve or reject the settlement of such
Claim; provided, however, that upon rejection of the settlement of any such
Claim, Xxxxxx shall assume control of the defense or prosecution of such
Claim, at its sole cost and expense from that point forward, and the
liability of Logix with respect to such Claim as finally resolved shall be
limited to the monetary equivalent of the rejected settlement amount
concerning such Claim. Xxxxxx shall retain the right to employ its own
counsel and discuss matters with Logix related to the defense or prosecution
of any such Claim controlled by Logix. Xxxxxx shall be solely responsible
for its own costs and expenses in connection with such participation;
provided, however, that all decisions of Logix shall be final and that Xxxxxx
shall cooperate with Logix in all respects in defense of such Claim,
including refraining from taking any position adverse to Logix.
4. GOVERNING LAW. This Agreement shall governed by, and construed
in accordance with, the laws of the State of Oklahoma.
5. BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors
and assigns.
6. NEW SHAREHOLDERS OF LOGIX. The Shareholders shall not transfer
any common stock of Logix to any person not a party to this Agreement unless
such person shall execute an acknowledgement and agreement to be bound by
this Agreement. Similarly, the Shareholders should cause Logix not to issue
or record a transfer of any common stock to any person not a party to this
Agreement unless such person shall execute an acknowledgement and agreement
to be bound by the terms of this Agreement. Upon execution of an
acknowledgement, the new shareholder shall be deemed for all purposes to be a
party to this Agreement and shall be subject to all the rights and
obligations created hereby with respect to Shareholders.
7. ENTIRE AGREEMENT. This Agreement constitutes the complete and
exclusive agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements, understandings, and
representations (oral, written, implied, or expressed), with respect to such
subject matter.
8. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
taken together shall constitute one and the same instrument.
DATED the day and year first above written.
XXXXXX: XXXXXX COMMUNICATIONS CORPORATION,
an Oklahoma corporation
By
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Xxxxxxx X. Xxxxxx, Chairman of the Board and
Chief Executive Officer
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SHAREHOLDERS: XXXXXX XX LIMITED PARTNERSHIP
By: RLD, INC., General Partner
By
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Xxxxxxx X. Xxxxxx, President
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Xxxxxxx X Xxxxxx
X.X. CHILDS EQUITY PARTNERS II, L.P.
By: JWC Associates, Inc., General Partner
By
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Xxxx X. Xxxxxxxx, Vice President
AT&T WIRELESS SERVICES, INC.
By
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Xxxxxxx X. Xxxxx
Title:
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XXXX FAMILY TRUST
By
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Xxxx X. Xxxx, Xx., Trustee
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Xxxx X. Childs
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Xxxxxxx X. Childs
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Xxxxx X. Childs
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Xxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxx
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Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxx
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B. Xxxx XxxXxxxxx
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Xxxxxxx X. Xxxx
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Xxxx X. Xxxxxxxx
CHECHESSE CREEK TRUST
By
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Xxxx X. Xxxxxxxx, Trustee
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Xxxxxx X. Xxxxx
SGS 1995 FAMILY
LIMITED PARTNERSHIP
By
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Xxxxxx X. Xxxxx, General Partner
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XXXXXX X. XXXXX 1995
IRREVOCABLE TRUST
By
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Xxxxxx X. Xxxxx, Donor
SGS III 1995 FAMILY
LIMITED PARTNERSHIP
By
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Xxxxxx X. Xxxxx, General Partner
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Xxxx X. Xxxxxx
XXXX X. XXXXXX IRREVOCABLE FAMILY
TRUST
By
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Xxxx Xxxxxx, Trustee
SUTTIN FAMILY TRUST II
By
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Xxxx X. Xxxxxx, Trustee
XXXXXX XXXXXX SELF DIRECTED
CUSTODIAL XXX
By
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Xxxxxx X. Xxxx, Vice President, Trust Bank
of _____________________
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Xxxxxx X. Xxx
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YUN FAMILY TRUST
By
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Xxxxxx X. Xxx, Trustee
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Xxx Xxxxx
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Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxx
REBACLIFF, XXXXX & XXXXX, LLC
By
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Xxxxxxx X. Smart, Member
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Xxxxx X. Xxxxxxx, Xx.
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Xxxxx Xxxxxxx
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Xxxxxxx X. Xxxxx
OFS INVESTMENT PARTNERS II
By
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Xxxxx X. Xxxxx, Administrative Managing
Partner
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SCHEDULE A
SHAREHOLDERS
Xxxxxx XX Limited Partnership
Xxxxxxx X Xxxxxx
X.X. Childs Equity Partners II, L.P.
AT&T Wireless Services, Inc.
Xxxx Family Trust
Xxxx X. Childs
Xxxxxxx X. Childs
Xxxxx X. Childs
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxx
X. Xxxx XxxXxxxxx
Xxxxxxx X. Xxxx
Xxxx X. Xxxxxxxx
Chechesse Creek Trust
Xxxxxx X. Xxxxx
SGS 1995 Family Limited Partnership
Xxxxxx X. Xxxxx 1995 Irrevocable Trust
SGS III 1995 Family Limited Partnership
Xxxx X. Xxxxxx
Xxxx X. Xxxxxx Irrevocable Family Trust
Suttin Family Trust II
Xxxxxx Xxxxxx Self Directed Custodial XXX
Xxxxxx X. Xxx
Xxx Family Trust
Xxx Xxxxx
Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx
Rebacliff, Xxxxx & Xxxxx, LLC
Xxxxx X. Xxxxxxx, Xx.
Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxx
OFS Investment Partners II
