CONFIDENTIAL SETTLEMENT MATERIALS—SUBJECT TO DELAWARE UNIFORM RULE OF EVIDENCE 408—NOT TO BE USED OR DISCLOSED FOR ANY PURPOSE OTHER THAN SETTLEMENT SETTLEMENT AGREEMENT AND MUTUAL RELEASE
Exhibit 10.1
EXECUTION COPY
CONFIDENTIAL
SETTLEMENT MATERIALS—SUBJECT TO
DELAWARE UNIFORM RULE OF EVIDENCE 408—NOT TO BE USED OR
DISCLOSED FOR ANY PURPOSE OTHER THAN SETTLEMENT
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (this “Agreement”) is entered into as of April 19, 2006, by and among Sprint Nextel Corporation, a Kansas corporation, Sprint Spectrum L.P., a Delaware limited partnership, WirelessCo, L.P., a Delaware limited partnership, Sprint Communications Company L.P., a Delaware limited partnership, Sprint Telephony PCS, L.P., a Delaware limited partnership, Sprint PCS License, L.L.C., a Delaware limited liability corporation and Nextel Communications, Inc., a Delaware corporation (collectively, the “Sprint Parties”), UbiquiTel Inc., a Delaware corporation (“UbiquiTel”), and UbiquiTel Operating Company, a Delaware corporation (collectively, the “UbiquiTel Parties” and together with the Sprint Parties, the “Parties”).
Whereas, on July 12, 2005, UbiquiTel initiated a lawsuit against the Sprint Parties asserting, among other things, breach of contract and seeking numerous remedies, which is currently pending in the Delaware Court of Chancery (the “Chancery Court”) and is styled UbiquiTel Inc. and UbiquiTel Operating Company v. Sprint Corporation, Sprint Spectrum, L.P., WirelessCo, L.P., Sprint Communications Company L.P., Sprint Telephony PCS, L.P., Sprint PCS License, L.L.C., and Nextel Communications, Inc., C.A. No. 1489-N (the “Litigation”);
Whereas, on the terms and subject to the conditions contained herein, the Parties wish to compromise and settle the claims in the Litigation;
Now, therefore, in consideration of the mutual covenants and promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Agreement and Plan of Merger. The Parties are executing and delivering this Agreement contemporaneously with the execution and delivery by certain UbiquiTel Parties and certain Sprint Parties of an Agreement and Plan of Merger (the “Merger Agreement”) in the form attached as Exhibit A to this Agreement.
2. Effectiveness of Provisions. This Section 2 and Sections 1, 4, 5, 6, 7, 8, 9, 10 and 11 of this Agreement shall be effective from and after the date of this Agreement (the “Signing Date”); provided that Sections 5, 6, 7, 8 and 9 of this Agreement shall terminate if the Merger Agreement is terminated for any reason. The remainder of this Agreement, including but not limited to the releases provided for in this Agreement, will become effective at the time (the “Effectiveness Time”) of the consummation of the Merger.
3. General Releases.
(a) Sprint Release of the UbiquiTel Parties. As of the Effectiveness Time, except for any claims under this Agreement, the Merger Agreement and the agreements and transactions contemplated hereby and thereby, each of the Sprint Parties releases and forever discharges the UbiquiTel Parties and their respective officers, directors, shareholders, partners, members, subsidiaries, employees, agents, attorneys and representatives (the “Sprint Released Parties”) from all liabilities, claims, attorneys’ fees, damages, injuries, causes of action, and losses of any kind (including any claims for equitable or injunctive relief) that any of the Sprint Parties ever had, now has, may assert or may in the future claim to have against any of the Sprint Released Parties by reason of any act, failure to act, occurrence or event occurring or existing on or
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before the Effectiveness Time, including but not limited to all claims that were or could have been asserted in the Litigation (“Sprint’s Claims” and together with UbiquiTel’s Claims, the “Released Claims”).
(b) UbiquiTel Release of the Sprint Parties. As of the Effectiveness Time, except for any claims under this Agreement, the Merger Agreement and the agreements and transactions contemplated hereby and thereby, each of the UbiquiTel Parties releases and forever discharges the Sprint Parties and their respective officers, directors, shareholders, partners, members, subsidiaries, employees, agents, attorneys and representatives (the “UbiquiTel Released Parties”) from all liabilities, claims, attorneys’ fees, damages, injuries, causes of action, and losses of any kind (including any claims for equitable or injunctive relief) that any of the UbiquiTel Parties ever had, now has, may assert or may in the future claim to have against any of the UbiquiTel Released Parties by reason of any act, failure to act, occurrence or event occurring or existing on or before the Effectiveness Time, including but not limited to all claims that were or could have been asserted in the Litigation (“UbiquiTel’s Claims” and together with Sprint’s Claims, the “Released Claims”).
(c) Complete Release. Effective as of the Effectiveness Time, this Agreement constitutes the complete compromise, settlement, accord and satisfaction of all of the Released Claims.
(d) No Release by UbiquiTel Parties of UbiquiTel Directors, Officers, Etc. Notwithstanding anything in this Agreement to the contrary, nothing in this Section 3 shall be construed to be a release by the UbiquiTel Parties of any of their respective officers, directors, shareholders (other than the Sprint Parties), partners, members, subsidiaries, employees, agents, attorneys or representatives.
(e) Dismissal of Litigation. At the Effectiveness Time, the Parties will execute and deliver, all to the other Parties, and will file with the Chancery Court, such documents as may be necessary or desirable to effect the dismissal with prejudice of the Litigation.
4. Expenses. The Parties will pay their own expenses and attorney’s fees incurred in connection with the Litigation and with the negotiation and execution of this Agreement.
5. Performance of Agreements. Between the Signing Date and the Effectiveness Time, the UbiquiTel Parties and the Sprint Parties each agree to continue to perform all obligations under the various commercial agreements in effect between one or more of the UbiquiTel Parties and one or more of the Sprint Parties.
6. Stay of Litigation. No later than April 20, 2006, the Parties will submit jointly to the Chancery Court a motion to “stay” the Litigation, and cooperate to cause the Chancery Court to issue an order granting the stay, such order (i) to provide that such stay shall not have any effect on the Chancery Court’s ability to take any action, including the issuance of orders, with respect to the litigation between the Sprint Parties, Horizon Personal Communications, Inc. and Bright Personal Communications Services, LLC that was consolidated with the Litigation for trial purposes and (ii) to be substantially in the form attached as Exhibit B to this Agreement. So long as this Section 6 remains in effect, at least ten days prior to the expiration of any “stay” of the Litigation, the Parties will file jointly with the Chancery Court motions or stipulations to extend the stay of the litigation for consecutive 90-day periods, and shall cooperate to cause the Chancery Court to issue orders granting such extensions. So long as this Section 6 remains in effect, none of the Parties shall seek to modify or withdraw the stay or take any other action inconsistent with the continuation of such stay during the term of this Section 6.
7. Covenant Not To ▇▇▇ or To Assist Third Parties.
(a) Covenant by UbiquiTel Parties. From and after the Signing Date, so long as this Section 7 remains in effect, except for any claims under this Agreement, the Merger Agreement and the agreements and transactions contemplated hereby and thereby, no UbiquiTel Party will (i) commence or in any manner seek relief against any UbiquiTel Released Party through any suit or proceeding, (ii) become a party to any
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suit or proceeding arising from or in connection with an attempt by or on behalf of any third party to enforce or collect an amount based on any Released Claim (including, without limitation, any claim that will become a Released Claim as of the Effectiveness Time), or (iii) assist in any manner any other Sprint PCS Affiliate in connection with any threatened or existing litigation such party may have against any Sprint Party; provided however that an UbiquiTel Party may honor a subpoena if one is issued by a court of competent jurisdiction. In addition, no UbiquiTel Party will assist the efforts of any third party attempting to enforce or collect an amount based on a Released Claim (including, without limitation, any claim that will become a Released Claim as of the Effectiveness Time), unless required to do so by a court of competent jurisdiction.
(b) Covenant by Sprint Parties. From and after the Signing Date, so long as this Section 7 remains in effect, except for any claims under this Agreement, the Merger Agreement and the agreements and transactions contemplated hereby and thereby, no Sprint Party will (i) commence or in any manner seek relief against any Sprint Released Party through any suit or proceeding, or (ii) become a party to any suit or proceeding arising from or in connection with an attempt by or on behalf of any third party to enforce or collect an amount based on any Released Claim (including, without limitation, any claim that will become a Released Claim as of the Effectiveness Time). In addition, no Sprint Party will assist the efforts of any third party attempting to enforce or collect an amount based on a Released Claim (including, without limitation, any claim that will become a Released Claim as of the Effectiveness Time), unless required to do so by a court of competent jurisdiction.
8. Contract. The Parties understand that the terms in this Agreement are binding contractual commitments and not mere recitals, and that the Parties are not relying upon any statement or representation made by any Party released, any such Party’s agents or attorneys, or any other person, concerning the nature, extent or duration of any injuries or damages, or concerning any other thing or matter, but are relying solely and exclusively upon their own knowledge, belief and judgment.
9. Additional Facts. The Parties are aware that they may after the date of this Agreement discover claims or facts in addition to or different from those they now know or believe to be true with respect to Released Claims. Nevertheless, it is the intention of the Parties as of the Effectiveness Time to fully, finally and forever settle and release all Released Claims, including existing claims for damages and losses that are presently unknown or unanticipated. In furtherance of this intention, upon the Effectiveness Time, the releases given in this Agreement are and will remain in effect as full and complete mutual releases of Released Claims, notwithstanding the discovery or existence of any additional or different facts relative to them. Each Party assumes the risk of any mistake in executing this Agreement and furnishing the releases set forth in this Agreement. Without limiting the generality of the preceding sentences in this Section 9, each Party waives and relinquishes, to the extent permitted by law, any right or benefit that such Party has or might have under any provision of statutory or non-statutory law that might provide that a release does not extend to claims that a person does not know or suspect to exist at the time of execution of the release that, if known, would or might have materially affected the decision to give the release.
10. Waivers. No waiver by a Party of any breach of or default under this Agreement will be deemed to be a waiver of any other breach or default of any kind or nature of this Agreement. No acceptance of payment or performance by a Party after any such breach or default will be deemed to be a waiver of any breach or default of this Agreement, whether or not such Party knows of such breach or default at the time it accepts such payment or performance. No failure or delay on the part of a Party to exercise any right it might have will prevent the exercise of that right by that Party at any time the other Party continues to be in default, and no such failure or delay will operate as a waiver of any default.
11. Other Provisions.
(a) Governing Law. All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement will be governed by and construed under Delaware law, without giving
effect to any choice of law or conflict of law rules or provisions (whether of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than Delaware.
(b) Jurisdiction. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery or such other appropriate trial court in the State of Delaware, and any appellate court from such court, in any suit, action or proceeding arising out of or relating to this Agreement.
(c) Entire Agreement; Binding Effect. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter it covers and supersedes all prior agreements, negotiations, representations and discussions between the Parties with respect to the subject matter it covers. This Agreement will be binding on and inure to the benefit of the Parties and their respective successors and assigns.
(d) Construction. The Parties participated in the negotiation and drafting of this Agreement. If any ambiguity or question of intent or interpretation arises, the Parties intend that (i) this Agreement be construed as if they had drafted it together, and (ii) no presumption or burden of proof arises favoring or disfavoring any Party by virtue of its role in drafting any provision of this Agreement. All pronouns and any variations of pronouns used in this Agreement refer to the masculine, feminine or neuter, singular or plural as the identity of the person or persons require.
(e) Severability. If any term or provision of this Agreement is illegal, invalid or unenforceable for any reason whatsoever, that term or provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and such illegality, invalidity or unenforceability will not affect the validity, legality or enforceability of the remainder of this Agreement.
(f) Amendment. Any amendment to this Agreement must be in a written document signed by the Parties and must state the intent of the Parties to amend this Agreement.
(g) No Admission of Liability. It is expressly understood and agreed that this Agreement is a compromise of disputed claims and that execution of, making of payments under, and performing of obligations under this Agreement are not to be construed as an admission of liability on the part of any Party.
(h) Counterparts. This Agreement may be signed in counterpart or duplicate copy and by facsimile signature, and any signed counterpart, duplicate or facsimile copy is the equivalent to a signed original for all purposes.
(i) For Settlement Purposes. If the Effectiveness Time does not occur, the Parties agree that Delaware Uniform Rule of Evidence 408 will apply to this Agreement and none of this Agreement or any negotiations of the terms of this Agreement will be admissible for any purpose in the Litigation.
(j) Waiver of Jury Trial. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTER CLAIM, THIRD PARTY CLAIM OR OTHERWISE.
(k) Confidentiality. The Parties agree that neither of them will disclose the contents of this Agreement, the details or terms of this settlement, or the fact of this settlement or any matters pertaining to this settlement unless such disclosure is (i) lawfully required by any governmental agency; (ii) otherwise required to be disclosed by law; or (iii) necessary in any legal proceeding in order to enforce any provisions of this Agreement. The Parties agree that they will notify each other in writing within five (5) calendar days of the receipt of any subpoena, court order, or administrative order requiring disclosure of information subject to this non-disclosure provision.
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(l) Due Authorization. The Parties hereby represent and warrant that the individuals signing this Agreement on their behalf are duly authorized and fully competent to do so.
(m) Assignment, Predecessors, Successors, and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their legal representatives, predecessors, successors, and assigns.
(n) Assignment. The Parties hereby warrant and represent that they have not assigned or in any way transferred or conveyed all or any portion of the claims covered by this Agreement, and to their knowledge, no other person or entity has a right to any claim that purports to be settled by this Agreement. The Parties acknowledge and agree that this warranty and representation is an essential and material term of this Agreement, without which they would not have entered into it. The Parties each agree to defend and to hold each other harmless against the claims of any other person or entity asserting a claim or right that purports to be settled by the Agreement.
[Remainder of page intentionally left blank.]
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EACH PARTY HAS COMPLETELY READ THE TERMS OF THIS AGREEMENT, FULLY UNDERSTANDS THEM AND VOLUNTARILY ACCEPTS THEM FOR THE PURPOSE OF MAKING FULL AND FINAL COMPROMISE, ADJUSTMENT AND SETTLEMENT OF ALL CLAIMS, DISPUTED OR OTHERWISE, IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
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SPRINT NEXTEL CORPORATION |
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By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Title: Vice President |
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SPRINT SPECTRUM L.P. |
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By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title: Vice President |
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WIRELESSCO, L.P. |
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By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title: Vice President |
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SPRINT COMMUNICATIONS COMPANY L.P. |
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By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title: Vice President |
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SPRINT TELEPHONY PCS, L.P. |
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By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title: Vice President |
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[Signature Page to Settlement Agreement] |
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SPRINT PCS LICENSE, L.L.C. |
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By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title: Vice President |
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NEXTEL COMMUNICATIONS, INC. |
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By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title: Vice President |
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By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title: President and Chief Executive Officer |
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UBIQUITEL OPERATING COMPANY |
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By |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title: President and Chief Executive Officer |
[Signature Page to Settlement Agreement]
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(Same Order for Injunction Action)
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UBIQUITEL INC. and UBIQUITEL OPERATING COMPANY,
Plaintiffs, v.
SPRINT CORPORATION, SPRINT SPECTRUM, L.P., WIRELESSCO, L.P., SPRINT COMMUNICATIONS COMPANY L.P., SPRINT TELEPHONY PCS, L.P., SPRINT PCS LICENSE, L.L.C,. and NEXTEL COMMUNICATIONS, INC.,
Defendants. __________________________________________ |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
Case No. C.A. No 1489-N
Vice-Chancellor ▇▇▇▇▇▇▇ |
B-1
This matter coming to be heard on the Joint Motion for Entry of a Stay, the Court being advised that the parties have entered into a Settlement Agreement pursuant to which the parties intend to dismiss this action with prejudice upon the consummation of the Merger pursuant to the Merger Agreement (as defined in the Settlement Agreement); and
The parties further having advised the Court that they expect that the relevant transactions will be consummated in the second quarter of 2006, but that contingencies beyond the control of the parties may prevent consummation within that time;
IT IS HEREBY ORDERED THAT:
1. All proceedings in this action are temporarily stayed until the earlier of (a) December 31, 2006 and (b) the termination of the Merger Agreement (as defined in the Settlement Agreement) in accordance with its terms; provided, however, that this stay shall not apply to any proceedings in the action brought by Horizon Personal Communications, Inc. and Bright Personal Communications Services, LLC against certain of the defendants and consolidated with this action for purposes of trial.
2. On or before December 21, 2006, the parties shall submit a joint status report concerning the status of the transactions; and
3. At any time on or before December 31, 2006, the parties may apply to the Court to extend the stay for good cause shown.
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ENTER: |
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Honorable Vice-Chancellor ▇▇▇▇▇▇▇ |
B-2