EXHIBIT 10.13
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is made
and entered into this 13th day of March, 1996 by and between Shared
Technologies Inc. ("Shared Technologies"), a Delaware corporation,
The Fairchild Corporation ("TFC"), a Delaware corporation, and RHI
Holdings Inc. ("RHI"), a Delaware corporation and the sole common
stockholder of Fairchild Industries, Inc. ("Fairchild").
W I T N E S S E T H :
WHEREAS, Shared Technologies, TFC, RHI and Fairchild have
entered into an Agreement and Plan of Merger (the "Merger Agreement") dated as
of November9, 1996, as amended; and
WHEREAS, capitalized terms used herein without definition
shall have the respective meanings ascribed to such terms in the Merger
Agreement; and
WHEREAS, TFC is the sole common stockholder of RHI; and
WHEREAS, the execution and delivery of this Agreement is a
condition to effecting the Merger at the Closing and each of the parties has
agreed to effect the Merger in reliance upon the execution and delivery of this
Agreement;
NOW, THEREFORE, in consideration of the transactions
contemplated by the Merger Agreement and 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. Indemnification by RHI and TFC.
RHI and TFC, jointly and severally, hereby agree to indemnify
and hold harmless Shared Technologies against any and all losses, liabilities
and damages or actions or claims (or actions or proceedings, whether commenced
or threatened) in respect thereof (hereinafter referred to collectively as
"Losses") resulting from any liability or claims (including without limitation
counsel fees and expenses of Shared Technologies in the event RHI and TFC fail
to assume the defense thereof) which related to the operations of Fairchild
Industries, Inc. or any of its subsidiaries prior to the Effective Time,
including without limitation those which have been assumed by RHI pursuant to
the Fairchild Reorganization described in Schedule 9.1 to the Merger Agreement
and including all Taxes (including but not limited to taxes related to the
Fairchild
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Reorganization) except for (x) Losses related to or arising out of the
telecommunications systems and service business of Fairchild Communication
Services Company and (y) the other obligations of Fairchild expressly assumed by
Shared Technologies as specified on Schedule 9.1 to the Merger Agreement
(clauses (x) and (y) being defined as the "Assumed Liabilities").
Notwithstanding the foregoing, in no event shall Shared Technologies be entitled
to indemnification for, and the term "Losses" shall not include any
consequential damages or damages which are speculative, remote or conjectural
(except to the extent represented by a successful claim by a third party).
If any action, proceeding or claim shall be brought or asserted against Shared
Technologies by any third party, which action, proceeding or claim, if
determined adversely to the interests of Shared Technologies would entitle
Shared Technologies to indemnity pursuant to this Agreement, Shared Technologies
shall promptly, but in no event later than 10 days from the date Shared
Technologies receives written notice of such action, proceeding or claim, notify
TFC and RHI of the same in writing specifying in detail the basis of such claim
and the facts pertaining thereto (but the failure to give such notice in a
timely fashion shall not affect TFC's and RHI's obligations under this Section1
except to the extent it prejudiced or damaged their ability to defend, settle or
compromise such claim or to pay any Losses resulting therefrom), and TFC and RHI
shall be entitled (but not obligated) to assume the defense thereof by giving
written notice thereof within 10 days after TFC and RHI received notice of the
claim from Shared Technologies to Shared Technologies and have the sole control
of defense and settlement thereof (but only, with respect to any settlement, if
such settlement involves an unconditional release of Shared Technologies or any
of its subsidiaries in respect of such claim), including the employment of
counsel and the payment of all expenses.
2. Indemnification by Shared Technologies.
Shared Technologies hereby agrees to indemnify and hold
harmless RHI and TFC against any and all losses, liabilities and damages or
actions or claims (or actions or proceedings, whether commenced or threatened)
in respect thereof resulting from any liability or claims (including without
limitation counsel fees and expenses of RHI and TFC in the event Shared
Technologies fails to assume the defense thereof) which related to the Assumed
Liabilities (hereinafter referred to collectively as "STI Losses").
Notwithstanding the foregoing, in no event shall TFC and RHI be entitled to
indemnification for, and the term "STI Losses" shall not include, any
consequential damages or damages which are
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speculative, remote or conjectural (except to the extent represented by a
successful claim by a third party).
If any action, proceeding or claim shall be brought or
asserted against RHI or TFC by any third party, which action, proceeding or
claim, if determined adversely to the interests of RHI or TFC would entitle RHI
or TFC to indemnity pursuant to this Agreement, RHI or TFC shall promptly, but
in no event later than 10 days from the date RHI or TFC receives written notice
of such action, proceeding or claim, notify Shared Technologies of the same in
writing specifying in detail the basis of such claim and the facts pertaining
thereto (but the failure to give such notice in a timely fashion shall not
affect Shared Technologies' obligations under this Section2 except to the
extent it prejudiced or damaged Shared Technologies' ability to defend, settle
or compromise such claim or to pay any Losses resulting therefrom), and Shared
Technologies shall be entitled (but not obligated) to assume the defense thereof
by giving written notice thereof within 10 days after Shared Technologies
received notice of the claim from RHI or TFC to RHI or TFC and have the sole
control of defense and settlement thereof (but only, with respect to any
settlement, if such settlement involves an unconditional release of TFC and RHI
or any of their respective subsidiaries in respect of such claim), including the
employment of counsel and the payment of all expenses.
3. Miscellaneous
3.1 Modification; Waivers. This Agreement may be modified or
amended only with the written consent of each party hereto. No party hereto
shall be released from its obligations hereunder without the written consent of
the other party. The observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) by the party entitled to enforce such term, but any such waiver
shall be effective only if in a writing signed by the party against which such
waiver is to be asserted. Except as otherwise specifically provided herein, no
delay on the part of any party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party hereto of any right, power or privilege hereunder operate
as a waiver of any other right, power or privilege hereunder nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder.
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3.2 Entire Agreement. This Agreement represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
3.3 Severability. If any provision of this Agreement, or the
application of such provision to any Person or circumstance, shall be held
invalid, the remainder of this Agreement or the application of such provision to
other Persons or circumstances shall not be affected thereby; provided that the
parties shall negotiate in good faith with respect to an equitable modification
of the provision or application thereof held to be invalid.
3.4 Notices. (a) Any notice or communication to any party
hereto shall be duly given if in writing and delivered in person or mailed by
first class mail (registered or certified, return receipt requested), facsimile
or overnight air courier guaranteeing next day delivery, to such other party's
address.
If to RHI Holdings, Inc.:
300 West Service Road
P.O. Box 10803
Chantilly, VA 22001
Facsimile No.: (703) 888-5674
Attention: Donald Miller, Esq.
If to The Fairchild Corporation:
300 West Service Road
P.O. Box 10803
Chantilly, VA 22001
Attention: Donald Miller, Esq.
with a copy to:
James J. Clark, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005
Facsimile No.: (212) 269-5420
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If to Shared Technologies Inc.:
100 Great Meadow Road, Suite 104
Wethersfield, CT 06109
Facsimile No.: (203) 258-2401
Attention: Legal Department
with a copy to:
Walter D. Wekstein, Esq.
Gadsby & Hannah
125 Summer Street
Boston, Massachusetts 02110
Facsimile No. (617) 345-7050
(b) All notices and communications will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, if mailed; when sent, if sent
by facsimile; and the next business day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
3.5 Successors and Assigns. This Agreement shall inure to the
benefit of and shall be binding upon RHI, TFC and Shared Technologies and their
respective successors and assigns.
3.6 Counterparts. This Agreement may be executed in one or
more counterparts, each of which for all purposes shall be deemed to be an
original and all of which together shall constitute the same agreement.
3.7 Headings. The Section headings in this Agreement are for
convenience of reference only, and shall not be deemed to alter or affect the
meaning or interpretation of any provisions hereof.
3.8 Construction. This Agreement shall be governed, construed
and enforced with the laws of the state of New York, without regard to
principles of conflict of laws.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers thereunto duly authorized as of the
date first written above.
THE FAIRCHILD CORPORATION
By: /s/ John C. Flynn
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Name:
Title:
RHI HOLDINGS, INC.
By: /s/ John C. Flynn
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Name:
Title:
SHARED TECHNOLOGIES INC.
By: /s/ Vincent DiVincenzo
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Name:
Title: