AGREEMENT AND PLAN OF REORGANIZATION
AND CORPORATION SEPARATION
This AGREEMENT is made this 24th day of January, 2000 between ▇▇▇▇▇▇
Communications Corporation, an Oklahoma corporation ("▇▇▇▇▇▇"), and Logix
Communications Enterprises, Inc., an Oklahoma corporation ("LOGIX").
WHEREAS, ▇▇▇▇▇▇ owns all of the issued and outstanding capital stock
of Logix ("Logix Stock"); and
WHEREAS, it is the desire of ▇▇▇▇▇▇ to separate the business of Logix
and its subsidiaries, Logix Communications Corporation, ▇▇▇▇▇▇ Telephone
Company, Inc. (also known as ▇▇▇▇▇▇▇ Telephone Company), ▇▇▇▇▇▇ FIBER/▇▇▇▇▇
of Colorado, Inc., from the business of ▇▇▇▇▇▇; and
WHEREAS, it is the parties' intention that, effective upon the Closing
(as hereinafter defined), (i) ▇▇▇▇▇▇ shall assume and accept or retain
responsibility for the ▇▇▇▇▇▇ Liabilities (as hereinafter defined), and (ii)
Logix shall assume and accept or retain responsibility for the Logix
Liabilities (as hereinafter defined), in each case except as otherwise
provided in that certain Agreement by and between ▇▇▇▇▇▇ and the shareholders
of ▇▇▇▇▇▇ dated as of the date hereof regarding possible tax liabilities
incurred by ▇▇▇▇▇▇ under Section 355(e) of the Internal Revenue Code of 1986,
as amended (the "TAX AGREEMENT");
NOW THEREFORE, in consideration of the mutual covenants herein set
forth, the parties agree as follows:
1. DISTRIBUTION OF LOGIX STOCK. ▇▇▇▇▇▇ will distribute all Logix
Stock, which shall constitute all such stock outstanding, to the holders of
▇▇▇▇▇▇ Class A common stock, ▇▇▇▇▇▇ Class B common stock and Class D
preferred stock (collectively, the "Eligible STOCK"). Each holder of Logix
Stock will receive a percentage of the total outstanding shares of Logix
Stock equal to the percentage determined by dividing the total number of
shares of ▇▇▇▇▇▇'▇ Class A common stock, Class B common stock and Class D
preferred stock (which, for this purpose, will be treated as if they Class D
preferred stock had been fully converted into shares of Class A common stock
and Class E preferred stock, owned by such shareholder by the total
outstanding shares of Eligible Stock.
2. CLOSING. The closing shall take place at ▇▇▇▇▇▇'▇ principal
executive offices at 10:00 a.m., Oklahoma City time on January 24, 2000 (the
"CLOSING").
3. INDEMNIFICATION.
(a) CERTAIN DEFINITIONS.
"▇▇▇▇▇▇ BUSINESSES" means all of the businesses,
operations and assets of ▇▇▇▇▇▇ and its subsidiaries, including all of the
businesses, operations and assets that were previously conducted, owned or
used by any business or operation of ▇▇▇▇▇▇ (or any predecessor to such
business or operation), notwithstanding the fact that prior to the Closing (i)
any such business or operation was closed, wound up or otherwise terminated,
(ii) such asset ceased to be used in connection with such business or
operation, or (iii) any such business, operation or asset was sold or
otherwise disposed of to any person or entity other than Logix and its
subsidiaries; PROVIDED, HOWEVER, that ▇▇▇▇▇▇ Businesses do not include the
Logix Businesses. For the purpose of the definition of "▇▇▇▇▇▇ Businesses",
the term "▇▇▇▇▇▇" includes all direct and indirect subsidiaries of ▇▇▇▇▇▇ and
any partnerships in which it or any of its subsidiaries owns or at any time
in the past owned an interest.
"▇▇▇▇▇▇ LIABILITIES" means, except as otherwise
expressly provided for in this Agreement and except for potential tax
liabilities which are addressed in the Tax Agreement, any and all of the
obligations, liabilities and expenses incurred by ▇▇▇▇▇▇, Logix or any of
their respective affiliates or subsidiaries or affiliates of such
subsidiaries arising out of or associated with, or any Litigation and Claims
alleged to arise out of or be associated with, the ▇▇▇▇▇▇ Businesses, whether
or not in the ordinary course of business, in each case whether matured or
unmatured, liquidated or unliquidated, fixed or contingent, known or unknown,
and whether arising out of circumstances existing prior to, on or subsequent
to the Closing and regardless of where or against whom such obligations,
liabilities and expenses are asserted or determined or whether asserted or
determined prior to, on or subsequent to the Closing, and regardless of
whether arising from or alleged to arise from negligence, recklessness,
violation of law, fraud, or misrepresentation by any of the Logix Parties,
and including, without limitation, the following items:
(i) all obligations, liabilities and expenses with
respect to health, safety, personal injury, property damage, employment,
benefits, compensation, pension rights, claims arising out of contracts,
intellectual property rights, product liability, warranty, merchantability or
fitness for any particular purpose of goods, conformity of goods to
contractual requirements, deceptive trade practice, misrepresentation, fraud
or any other alleged or actual breach or violation of any obligation or
requirement arising out of, or associated with, the ▇▇▇▇▇▇ Businesses;
(ii) all Litigation and Claims pending as of the
Closing against Logix or ▇▇▇▇▇▇ and/or any of their respective affiliates or
subsidiaries or affiliates of such subsidiaries ("PENDING ▇▇▇▇▇▇ LITIGATION")
and all Litigation and Claims brought, threatened or alleged against Logix or
▇▇▇▇▇▇ and/or any of their respective affiliates or subsidiaries or
affiliates of such subsidiaries after the Closing ("NEW ▇▇▇▇▇▇ LITIGATION"),
in each case if and solely to the extent that such Litigation and Claims (in
whole or in part) arise out of or are associated with or are alleged
(regardless of the party named in the allegation or complaint) to arise out
of or to be associated with the ▇▇▇▇▇▇ Businesses;
(iii) all obligations, liabilities and expenses
(including, without limitation, all fines or penalties or costs of closure,
investigation and feasibility studies, attorneys' or consultants' fees or
remediation costs) of Logix, ▇▇▇▇▇▇ or any of their respective affiliates or
subsidiaries or affiliates of such subsidiaries arising under any federal,
state, local or foreign statutes, laws (including common law), codes, rules,
regulations, policies or guidelines or any administrative or judicial
interpretations thereof relating to the environment, natural resources and
public or employee health and safety arising out of or relating to, or
alleged to arise out of or relate to, the ▇▇▇▇▇▇ Businesses;
(iv) any Litigation and Claims brought after the
Closing against Logix or its affiliates or subsidiaries or affiliates of such
subsidiaries by employees of Logix or ▇▇▇▇▇▇ or any of their respective
subsidiaries and affiliates claiming that they suffered personal injuries of
any kind, whether prior to, on or subsequent to, the Closing, arising or
alleged to arise from the ▇▇▇▇▇▇ Businesses;
(v) all obligations, liabilities and expenses (other
than those arising solely due to joint and several liability under the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")) with
respect to any employee benefit plan (within the meaning of Section 3(3) of
ERISA), including any multiemployer plan (within the meaning of Section 3(37)
of ERISA), maintained by, contributed to, or obligated to contribute to, at
any time, by ▇▇▇▇▇▇ ,or any of its subsidiaries or any trade or business
under common control or treated as a single employer with ▇▇▇▇▇▇ under
Section 414(b,-C-,(m) or (o) of the Code, other than Logix or any of its
subsidiaries; and
(vi) all obligations, liabilities and expenses with
respect to the employment or termination of employment, including a
constructive termination, of any individual by (A) ▇▇▇▇▇▇ or any ▇▇▇▇▇▇
Business, or (B) any officer, director, employee or agent of ▇▇▇▇▇▇ or any
▇▇▇▇▇▇ Business attributable to any actions or inactions by ▇▇▇▇▇▇ or any
▇▇▇▇▇▇ Business.
"▇▇▇▇▇▇ PARTIES" means ▇▇▇▇▇▇ and any direct or indirect
subsidiary or affiliate of ▇▇▇▇▇▇, other than Logix and any of its
subsidiaries, and any of their respective directors, shareholders, officers,
employees, agents, consultants, customers, representatives, successors,
transferees or assignees.
"LITIGATION AND CLAIMS" means litigation pending or
threatened or claims alleged against Logix Parties and/or ▇▇▇▇▇▇ Parties,
including, without limitation, civil and criminal actions, workers'
compensation proceedings, administrative and regulatory proceedings,
investigations, audits, inquiries, demands, claims (including any title
claims relating to real properties) and threatened actions.
"LOGIX BUSINESSES" means all of the businesses,
operations and assets of Logix and its subsidiaries, or any predecessor to
such business or operation, notwithstanding the fact that prior to the
Closing (i) any such business or operation was closed, wound up or otherwise
terminated, (ii) such asset ceased to be used in connection with such
business or operation, or (iii) any such business, operation or asset was
sold or otherwise disposed of to any person or entity except ▇▇▇▇▇▇ or its
subsidiaries or affiliates. For the purpose of the definition of "Logix
Businesses", the term "Logix" includes all direct and indirect subsidiaries
of Logix and any partnerships in which it or any of its subsidiaries owns or
at any time in the past owned an interest.
"LOGIX LIABILITIES" means, except as otherwise expressly
provided for in this Agreement and except for potential tax liabilities
addressed in the Tax Agreement, any and all of the obligations, liabilities
and expenses incurred by ▇▇▇▇▇▇, Logix or any of their respective affiliates
or subsidiaries or affiliates of such subsidiaries arising out of or
associated with, or any Litigation and Claims alleged to arise out of or be
associated with the Logix
Businesses, which or not in the ordinary course of business, in each case
whether matured or unmatured, liquidated or unliquidated, fixed or
contingent, known or unknown, and whether arising out of circumstances
existing prior to, on or subsequent to the Closing, and regardless of where
or against whom such obligations, liabilities and expenses are asserted or
determined or whether asserted or determined prior to, on or subsequent to
the Closing, and regardless of whether arising from or alleged to arise from
negligence, recklessness, violation of law, fraud or misrepresentation by any
of the ▇▇▇▇▇▇ Parties, and including, without limitation, the following items:
(i) all obligations, liabilities and expenses with
respect to health, safety, personal injury, property damage, employment,
benefits, compensation, pension rights, claims arising out of contracts,
intellectual property rights, product liability, warranty, merchantability or
fitness for any particular purpose of goods, conformity of goods to
contractual requirements, deceptive trade practice, misrepresentation, fraud
or any other alleged or actual breach or violation of any obligation or
requirement arising out of, or associated with, the Logix Businesses;
(ii) all Litigation and Claims pending as of the
Closing against Logix or ▇▇▇▇▇▇ and/or any of their respective affiliates or
subsidiaries or affiliates of such subsidiaries ("PENDING LOGIX LITIGATION")
and all Litigation and Claims brought, threatened or alleged against Logix or
▇▇▇▇▇▇ and/or any of their respective affiliates or subsidiaries or
affiliates of such subsidiaries after the Closing ("NEW LOGIX LITIGATION"),
in each case if and solely to the extent that such Litigation and Claims (in
whole or in part) arise out of or are associated with or are alleged
(regardless of the party named in the allegation or complaint) to arise out
of or to be associated with the Logix Businesses;
(iii) all obligations, liabilities and expenses
(including, without limitation, all fines or penalties or costs of closure,
investigation and feasibility studies, attorney or consultant fees or
remediation costs) of Logix, ▇▇▇▇▇▇ or any of their respective affiliates or
subsidiaries or affiliates of such subsidiaries arising under any federal,
state, local or foreign statutes, laws (including common law), codes, rules,
regulations, policies or guidelines or any administrative or judicial
interpretations thereof relating to the environment, natural resources and
public or employee health and safety arising out of or relating to, or
alleged to arise out of or relate to the Logix Businesses;
(iv) any Litigation and Claims brought after the
Closing against ▇▇▇▇▇▇ or its affiliates or subsidiaries or affiliates of
such subsidiaries by employees of ▇▇▇▇▇▇ or Logix or any of their respective
subsidiaries and affiliates claiming that they suffered personal injuries of
any kind, whether prior to, on or subsequent to the Closing, arising out of,
or alleged to arise out of, the Logix Businesses;
(v) all obligations, liabilities and expenses (other
than those arising solely due to joint and several liability under ERISA)
with respect to any employee benefit plan (within the meaning of Section 3(3)
of ERISA), including any multiemployer plan (within the meaning of Section
3(37) of ERISA), maintained by, contributed to, or obligated to contribute
to, at any time, by Logix or any of its subsidiaries; and
(vi) all obligations, liabilities and expenses with
respect to the employment or termination of employment, including a
constructive termination, of any individual by (A) Logix or any of the Logix
Businesses, or (B) any officer, director, employee or agent of Logix or any
of the Logix Businesses attributable to any actions or inactions by Logix or
any of the Logix Businesses.
"LOGIX PARTIES" means Logix and any direct or indirect
subsidiary or affiliate of Logix, and any of their respective directors,
shareholders, officers, employees, agents, consultants, customers,
representatives, successors, transferees or assignees.
(b) EXCULPATION AND INDEMNIFICATION BY ▇▇▇▇▇▇.
Subject to the provisions of Section 3(d) hereof, upon,
from and after the Closing, ▇▇▇▇▇▇ shall, without any further responsibility
or liability of, or recourse to, any of the Logix Parties, absolutely and
irrevocably assume and be solely liable and responsible for the ▇▇▇▇▇▇
Liabilities. None of the Logix Parties shall be liable to any of the ▇▇▇▇▇▇
Parties for any reason whatsoever on account of any ▇▇▇▇▇▇ Liabilities.
▇▇▇▇▇▇ shall indemnify, defend, save and hold harmless
each of the Logix Parties from and against all claims, liabilities,
obligations, losses, costs, costs of defense (as and when incurred, and
including reasonable outside attorneys' and consultants' fees), expenses,
fines, charges, penalties, allegations, demands, damages (including but not
limited to actual, punitive or consequential, foreseen or unforeseen, known
or unknown), settlements, awards or judgments of any kind or nature
whatsoever, arising out of (i) the ▇▇▇▇▇▇ Liabilities, and (ii) the breach by
any of the ▇▇▇▇▇▇ Parties of any of their obligations under this Agreement
(all of which are hereinafter collectively referred to as the "LOGIX
DAMAGES").
Logix Damages with respect to which, but only to the
extent that, any proceeds are received by, or on behalf of, Logix or by any
of its subsidiaries or affiliates, from any third party insurance policy (and
are non-reimbursable by Logix or any of its subsidiaries or affiliates under
any self-insurance policy), shall not be the subject of indemnification under
this Agreement.
(c) GENERAL INDEMNIFICATION BY LOGIX.
Subject to the provisions of Section 3(d) hereof, upon,
from and after the Closing, Logix shall, without any further responsibility
or liability of, or recourse to, any of the ▇▇▇▇▇▇ Parties, absolutely and
irrevocably assume and be solely liable and responsible for the Logix
Liabilities. None of the ▇▇▇▇▇▇ Parties shall be liable to any of the Logix
Parties for any reason whatsoever on account of any Logix Liabilities.
Logix shall indemnify, defend, save and hold harmless
each of the ▇▇▇▇▇▇ Parties from and against all claims, liabilities,
obligations, losses, costs, costs of defense (as and when incurred, and
including reasonable outside attorneys' and consultants' fees), expenses,
fines, charges, penalties, allegations, demands, damages (including but not
limited to actual, punitive or consequential, foreseen or unforeseen, known
or unknown), settlements, awards or judgments of any kind or nature
whatsoever, arising out of (i) the Logix Liabilities, and (ii) the
breach by any of the Logix Parties of any of their obligations under this
Agreement (all of which are hereinafter collectively referred to as the
"▇▇▇▇▇▇ DAMAGES").
▇▇▇▇▇▇ Damages with respect to which, but only to the
extent that, any proceeds are received by, or on behalf of, ▇▇▇▇▇▇ or by any
of its subsidiaries or affiliates, from any third party insurance policy (and
are non-reimbursable by ▇▇▇▇▇▇ or any of its subsidiaries or affiliates under
any self-insurance policy), shall not be the subject of indemnification under
this Agreement.
(d) SPECIFIC INDEMNIFICATION ISSUES.
(i) In the event a claim, demand, action or
proceeding is brought by a third party in which the liability as between
▇▇▇▇▇▇ and Logix is determined after trial in any judgment, award or decree
to be joint or concurrent or in which the entitlement to indemnification
hereunder is not readily determinable, the parties shall negotiate in good
faith in an effort to agree, as between ▇▇▇▇▇▇ and Logix, on the proper
allocation of liability or entitlement to indemnification, as well as the
proper allocation of the costs of any joint defense or settlement pursuant to
Section 3(f)(iv), all in accordance with the provisions of, and the
principles set forth in, this Agreement. In the absence of any such
agreement, such allocation of liability, entitlement to indemnification and
allocation of costs shall be subject to ultimate resolution between ▇▇▇▇▇▇
and Logix pursuant to Section 4(h).
(ii) It is acknowledged that after the Closing the
parties will have arms length negotiated business relationships, which
relationships will be described in contracts, agreements and other documents
entered into in the normal course of business. Such documents may include
agreements by the parties and their affiliates and subsidiaries to supply
after the Closing, materials, products, services and leases. Such business
relationships shall not be subject to the indemnity provisions hereof, unless
the parties expressly agree to the contrary in the agreements governing such
relationships.
(e) NOTICE AND PAYMENT OF CLAIMS.
(i) If any person entitled to a defense and/or
indemnification under this Agreement (the "INDEMNIFIED PARTY") determines
that it is or may be entitled to a defense or indemnification by Logix or
▇▇▇▇▇▇, as the case may be (the "INDEMNIFYING PARTY"), under this Agreement:
(1) The Indemnified Party shall deliver
promptly to the Indemnifying Party a written notice and demand for a defense
or indemnification, specifying the basis for the claim or defense and/or
indemnification, the nature of the claim, and if known, the amount for which
the Indemnified Party reasonably believes it is entitled to be indemnified.
Nothing in this subparagraph shall be interpreted to invalidate any claim by
the Indemnified Party to be entitled to indemnification, unless the
Indemnifying Party can show that the failure of the Indemnified Party to
deliver such notice was intentional.
(2) The Indemnifying Party shall have 30 days
from receipt of the notice requesting indemnification within which to either:
(A) assume the defense of such litigation or claim; (B) pay the claim in
immediately available funds; (C) reserve its rights
pending negotiations under Section 3(f)(iv); or (D) object in accordance with
Section 3(e)(ii). This 30-day period may be extended by agreement of the
parties. Nothing in this subparagraph shall be interpreted to abrogate or
delay a party's obligation to provide the other with a defense under this
Agreement.
(ii) The Indemnifying Party may object to the claim
for defense and/or indemnification set forth in any notice; PROVIDED,
HOWEVER, that if the Indemnifying Party does not give the Indemnified Party
written notice setting forth its objection to such claim (or the amount
thereof) and the grounds therefor within the same 30-day period (or any
extended period) referred to in Section 3(e)(i) above, the Indemnifying Party
shall be deemed to have acknowledged its liability to provide a defense or
for the amount of such claim and the Indemnified Party may exercise any and
all of its rights under applicable law to collect such amount or obtain such
defense. Any objection to a claim for a defense or indemnification shall be
resolved in accordance with Section 3(h)(viii).
(iii) The right to a defense or indemnification under
this Agreement applies only insofar as defense and indemnification are not
provided for by insurance from any third party insurance policy (and are
non-reimbursable by the Indemnified Party or any of its affiliates or
subsidiaries or affiliates of such subsidiaries under any self-insurance
policy). Nevertheless, the potential availability of insurance coverage to
▇▇▇▇▇▇ or Logix shall not relieve the other party of its obligations for
defense or indemnification hereunder, or delay either party's obligation to
the other to assume a defense or pay any sums due hereunder.
(iv) Payments due to be made under this Agreement
shall carry interest from the date on which the Indemnified Party became
entitled to indemnification until the date of actual payment (whether before
or after judgment) at the prime rate charged by Chase Manhattan Bank, N.A. to
its corporate customers in effect during such period.
(v) Payments due to be made under this Agreement
shall be free and clear of all deductions, withholdings, set-offs or
counterclaims whatsoever, except as may be required by law. If any
deductions or withholdings are required by law the Indemnifying Party shall
be obliged to pay such sum as will, after such deduction, withholding,
set-off or counterclaim has been made, leave the Indemnified Party with the
same amount as it would have been entitled to receive in the absence of any
such requirement to make a deduction or withholding.
(vi) Payments due to be made under this Agreement
shall be reduced by the amount by which any taxes for which the Indemnified
Party would have been accountable or liable to be assessed are either (i)
actually reduced prior to payment falling due hereunder or (ii) likely to be
reduced subsequent to payment falling due hereunder in the reasonable opinion
of the Indemnified Party acting in good faith in the light of the
circumstances prevailing at the time of delivery of written notice in
accordance with Section 3(e)(i). The reductions of any payments to be made
in accordance with this Section 3(e)(vi) for tax benefits which will likely
be recognized within one year after the date on which the Indemnified Party
receives indemnification under this Agreement shall be made without regard to
the time value of money. The reduction of any payments to be made in
accordance with this Section 3(e)(vi) for tax benefits which will not likely
be recognized within one year after the date on which the
Indemnified Party receives indemnification under this Agreement shall take
into account the time value of money from the time the applicable payment is
received until the date of such tax benefits are likely to be recognized,
using as the discount rate the prime rate charged by Chase Manhattan Bank,
N.A. to its corporate customers at the time the payment is received.
(vii) The parties to this Agreement may enter into
agreements or other arrangements providing for the set-off of payments due to
be made by way of indemnification to both ▇▇▇▇▇▇ and Logix.
(f) DEFENSE OF THIRD-PARTY CLAIMS.
(i) If the Indemnified Party's claim for
indemnification is based, under this Agreement, on a claim, demand,
investigation, action or proceeding, judicial or otherwise, brought by a
third party, and the Indemnifying Party does not object under Section
3(e)(ii) hereof, the Indemnifying Party shall, within the 30-day period (or
any extended period) referred to in Section 3(e)(i) above, assume the defense
of such third-party claim at its sole cost and expense and shall thereafter
be designated as the "Case Handler." Any such defense shall be conducted by
attorneys employed by the Indemnifying Party. The Indemnified Party may
retain attorneys of its own choosing to participate in such defense at the
Indemnified Party's sole cost and expense.
(ii) If the Indemnifying Party assumes the defense of
any such third-party claim, the Indemnifying Party may settle or compromise
the claim without the prior consent of the Indemnified Party so long as all
present and future claims relating to the compromised claim against the
Indemnified Party are irrevocably and unconditionally released in full.
(iii) The Indemnifying Party shall pay to the
Indemnified Party in immediately available funds the amount for which the
Indemnified Party is entitled to be indemnified within 30 days after the
settlement or compromise of such third-party claim or the judgment of a court
of competent jurisdiction (or within such longer period as agreed to by the
parties). If the Indemnifying Party does not assume the defense of any such
third-party claim, the Indemnifying Party shall be bound by the result
obtained with respect thereto by the Indemnified Party, except that the
Indemnifying Party has the right to contest that it is obligated to the
Indemnified Party under the terms of this Agreement, provided the
Indemnifying Party shall have raised its objection in a timely manner under
Section 3(e)(ii).
(iv) In the event a claim, demand, action or
proceeding is brought by a third party in which the liability as between
Logix and ▇▇▇▇▇▇ is alleged to be joint or in which the entitlement to
indemnification hereunder is not readily determinable, the parties shall
cooperate in a joint defense. Such joint defense shall be under the general
management and supervision of the party which is expected to bear the greater
share of the liability, and which will be considered the Case Handler, unless
otherwise agreed; PROVIDED, HOWEVER, that neither party shall settle or
compromise any such joint defense matter without the consent of the other.
The costs of such joint defense, any settlement and any award or judgment
(unless the award or judgment specifies otherwise) shall be borne as the
parties may agree; or in the absence of such
agreement, such costs shall be borne by the party incurring such costs,
subject to ultimate resolution between Logix and ▇▇▇▇▇▇ pursuant to
Section 4(h).
(g) COOPERATION AND PRESERVATION OF RECORDS.
(i) Logix Parties and ▇▇▇▇▇▇ Parties shall cooperate
with one another fully and in a timely manner in connection with the defense
of any Pending Logix Litigation, New Logix Litigation, Pending ▇▇▇▇▇▇
Litigation, New ▇▇▇▇▇▇ Litigation or any other actual or threatened claim.
(ii) Such cooperation shall include, without
limitation, making available to the other party, during normal business hours
and upon reasonable notice, all books, records and information ("LITIGATION
RECORDS"), officers and employees (without substantial interruption of
employment) necessary or useful in connection with any actual or threatened
claim, investigation, audit or proceeding.
(iii) Each party shall continue in force, or at the
request of the other party, shall issue, notices exempting from destruction
any Litigation Records which the requesting party represents may be necessary
to the defense of, or required to be produced in discovery in connection
with, any such claim, investigation, audit, action or proceeding and shall
refrain from destroying any such Litigation Records until authorized by the
requesting party. The requesting party shall notify the other party promptly
when the Litigation Records are no longer required to be maintained.
(iv) The party requesting access to Litigation Records
or officers and employees pursuant to Section 3(g)(ii) or preservation of
Litigation Records under Section 3(g)(iii) shall bear all reasonable
out-of-pocket expenses (except reimbursement of salaries, employee benefits
and general overhead) incurred by the other party in connection with
providing such Litigation Records or officers and employees.
(v) The party providing Litigation Records under this
Section 3(g) may elect, upon a reasonable basis and within a reasonable time,
to designate all or a portion of the Litigation Records as confidential or
proprietary. If Litigation Records are so designated, the party receiving
them will treat them as it would its own confidential or proprietary
information and will take all reasonable steps to protect and safeguard the
Litigation Records while in its own custody and will attempt to shield such
information from disclosure by motions to quash, motions for a protective
order, redaction or other appropriate actions.
4. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Oklahoma.
(b) This Agreement may be amended, modified or supplemented
only by a written agreement of the parties.
(c) Except as provided in this Section 4(c), this Agreement
shall be personal to the parties to it and may not be assigned without the
prior written consent of the other parties.
Notwithstanding the foregoing, ▇▇▇▇▇▇ and Logix acknowledge and agree that
any party may assign its rights and delegate its obligations under this
Agreement, to one or more of its respective subsidiaries or affiliates,
provided that such an assignment shall have no effect on, and shall not be
deemed to constitute a release of such party from, its obligations under this
Agreement.
(d) This Agreement is solely for the benefit of the ▇▇▇▇▇▇
Parties and the Logix Parties and is not intended to confer upon any other
person except such parties any rights or remedies hereunder. There are no
third party beneficiaries to this Agreement other than the ▇▇▇▇▇▇ Parties and
the Logix Parties.
(e) This Agreement may be entered into in any number of
counterparts and by the parties to it on separate counterparts, each of which
when so executed and delivered shall be an original, but all the counterparts
shall together constitute one and the same instrument.
(f) If any term or provision of this Agreement shall be held
to be illegal or unenforceable, in whole or in part, under any enactment or
rule of law, such term or provision or part shall to that extent be deemed
not to form part of this Agreement but the enforceability of the remainder of
this Agreement shall not be affected. Subject thereto, should any term or
provision of this Agreement be or become ineffective, in whole or in part,
for reasons beyond the control of the parties hereto, the parties shall use
reasonable efforts to agree upon a new provision which shall as nearly as
possible have the same commercial effect as the ineffective term or provision
or part hereof.
(g) Any notice, claim or demand requiring to be served under
or in connection with this Agreement shall be in writing and shall be
sufficiently given or served if delivered addressed as follows:
If to ▇▇▇▇▇▇ or any other ▇▇▇▇▇▇ Party, to:
▇▇▇▇▇▇ Communications Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to Logix or any other Logix Party, to:
Logix Communications Enterprises, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Any such notice shall be delivered by hand or sent by first class post or
overnight courier. Any such notice shall take effect, in the case of hand
delivery, at the time of delivery, or, in the case of first class post,
forty-eight hours after posting.
(h) Resolution of any and all disputes arising from or in
connection with this Agreement, whether based on contract, tort, statute or
otherwise, including, but not limited to, disputes over arbitration and
disputes in connection with claims by third parties (collectively,
"DISPUTES") shall be exclusively governed by and settled in accordance with
the provisions of this Section 4(h); PROVIDED, HOWEVER, that nothing
contained herein shall preclude either party from seeking or obtaining
(a) injunctive relief or (b) equitable or other judicial relief to enforce the
provisions hereof or, pending resolution of Disputes hereunder, to preserve
the status quo. ▇▇▇▇▇▇ or Logix (each a "PARTY") may commence proceedings
hereunder by delivering a written notice to the other Party providing
reasonable description of the Dispute to the other and expressly requesting
arbitration hereunder. The Parties hereby agree to submit all Disputes to
arbitration under the terms hereof, which arbitration shall be final,
conclusive and binding upon the Parties, their successors and assigns. The
arbitration shall be conducted in Oklahoma City by three arbitrators acting
by majority vote (the "PANEL") selected by agreement of the Parties not later
than ten (10) days after delivery of the demand or, failing such agreement,
appointed pursuant to the commercial arbitration rules of the American
Arbitration Association, as amended from time to time (the "AAA RULES"). If
an arbitrator so selected becomes unable to serve, his or her successor shall
be similarly selected or appointed. The arbitration shall be conducted
pursuant to the Federal Arbitration Act and such procedures as the Parties
may agree, or, in the absence of or failing such agreement, pursuant to the
AAA Rules. Notwithstanding the foregoing: (i) each Party shall have the right
to audit the books and records of the other Party that are reasonably related
to the Dispute; (ii) each Party shall provide to the other, reasonably in
advance of any hearing, copies of all documents which a Party intends to
present in such hearing; and (iii) each Party shall be allowed to conduct
reasonable discovery through written requests for information, document
requests, requests for stipulation of fact and depositions, the nature and
extent of which discovery shall be determined by the Panel, taking into
account the needs of the Parties and the desirability of making discovery
expeditious and cost effective. All hearings shall be conducted on an
expedited schedule, and all proceedings shall be confidential. Either Party
may at its expense make a stenographic record thereof. The Panel shall
complete all hearings not later than ninety (90) days after its selection or
appointment, and shall make a final award not later than thirty (30) days
thereafter. The award shall be in writing and shall specify the factual and
legal basis for the award. The Panel shall apportion all costs and expenses
of arbitration, including the Panel's fees and expenses and fees and expenses
of experts, between the prevailing and non-prevailing Party as the Panel
deems fair and reasonable. Notwithstanding the foregoing, in no event may
the Panel award multiple, punitive or exemplary damages. Any arbitration
award shall be binding and enforceable against the Parties hereto and
judgment may be entered thereon in any court of competent jurisdiction.
(i) Neither of the parties hereto shall impeach this
Agreement on the grounds that any of the Directors of ▇▇▇▇▇▇ stand in any
fiduciary position to Logix or that any of the Directors of Logix stand in
any fiduciary position to ▇▇▇▇▇▇ or that the Directors of either party do not
constitute an independent Board.
IN WITNESS WHEREOF, ▇▇▇▇▇▇ and Logix have caused this Agreement
to be signed and delivered by their respective officers thereunto duly
authorized, all as of the date first written above.
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
LOGIX COMMUNICATIONS ENTERPRISES, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
By-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Name:--------------------------
CEO
Title:-------------------------
