EXHIBIT 10.3
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (this "Agreement") is
entered into as of January 30, 2004, by and among Sprint Spectrum L.P., a
Delaware limited partnership, Sprint Communications Company L.P., a Delaware
limited partnership, WirelessCo, L.P., a Delaware limited partnership, APC PCS,
LLC, a Delaware limited liability company, PhillieCo, L.P. a Delaware limited
partnership (the "Sprint Parties,"), and Shenandoah Personal Communications
Company, a Virginia corporation ("Shentel"), and Shenandoah Telecommunications
Company, a Virginia corporation, (together with Shentel, the "Shenandoah
Parties" and together with the Sprint Parties collectively, the "Parties").
Shentel entered into a Management Agreement, a Services Agreement
and two Trademark and Service Mark License Agreements with the Sprint Parties,
dated and effective as of November 5, 1999 (each agreement, together with all
addenda and amendments, being the "Management Agreement," the "Services
Agreement" and two "Trademark and Service Mark License Agreements" and
collectively, the "Sprint Agreements").
The Parties (in the singular, "Party") desire to resolve and release
claims specified in this Agreement, whether known or unknown, that any Party
might have against any of the other Parties that arose on or before the
Effective Date of this Agreement, including certain claims that arise out of any
actual or claimed actions or inactions of any Party on or before the Effective
Date of this Agreement, except as provided in this Agreement. The Parties have
agreed to take the actions set forth in this Agreement to avoid the expense and
delay inherent in further negotiations and possible litigation concerning their
business relationship.
In consideration of the mutual promises set forth in this Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the Parties agree as follows:
1. Addendum. The Parties will execute and deliver an addendum to the
Sprint Agreements in the form attached to this Agreement (the "Addendum")
contemporaneously with the Parties' execution and delivery of this Agreement.
2. Effective Date. This Agreement becomes effective on (the "Effective
Date"):
(a) January 1, 2004, if on or before January 31, 2004, the Parties
execute and deliver this Agreement and the Addendum, and Sprint Spectrum
receives the settlement payment under Section 3; or
(b) the first calendar day of the first calendar month after the
Parties execute and deliver this Agreement and the Addendum, and Sprint
Spectrum receives the settlement payment under Section 3, if the any of
the events described in subparagraph 2(a) occur after January 31, 2004.
3. Settlement Payment. Shentel, on behalf of itself and the other
Shenandoah Parties will pay Sprint Spectrum L.P., on its own behalf and on
behalf of the other Sprint Parties $562,434. The payment will be made via wire
transfer to the account designated by Sprint Spectrum L.P.
4. General Releases.
(a) Sprint Release of the Shenandoah Parties. Except as provided in
Section 5, each of the Sprint Parties releases and forever discharges the
Shenandoah Parties and their respective officers, directors, shareholders,
partners, members, subsidiaries, employees, agents and representatives
(the "Shenandoah Released Parties") from all liabilities, claims,
attorneys' fees, damages, injuries, causes of action, and losses of any
kind that any of the Sprint Parties ever had, now has, may assert or may
in the future claim to have against any of the Shenandoah Released Parties
by reason of any act, failure to act, cause or matter occurring or
existing on or before the date of this Agreement, concerning or related to
the Sprint Agreements ("Sprint's Claims"). For avoidance of doubt but not
for purposes of limitation, this provision releases and forever discharges
each of the Shenandoah Released Parties of and from any and all
liabilities, claims, attorneys' fees, damages, injuries, causes of action,
and losses of any kind that any of the Sprint Parties ever had, now has,
may assert or may in the future claim to have against any of the
Shenandoah Released Parties with respect to any of the matters set forth
on Exhibit A to this Agreement, and waives any and all rights that any of
the Sprint Parties may have with respect to those matters ("Sprint's
Specific Claims").
(b) Shenandoah Release of the Sprint Parties. Except as provided in
Section 5, each of the Shenandoah Parties releases and forever discharges
the Sprint Parties and their respective officers, directors, shareholders,
partners, members, subsidiaries, employees, agents and representatives
(the "Sprint Released Parties") from all liabilities, claims, attorneys'
fees, damages, injuries, causes of action, and losses of any kind that any
of the Shenandoah 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, cause or matter occurring or existing on or
before the date of this Agreement concerning or related to the Sprint
Agreements ("Shenandoah's Claims" and together with Sprint's Claims, the
"Claims"). For avoidance of doubt but not for purposes of limitation, this
provision releases and forever discharges each of the Sprint Released
Parties of and from any and all liabilities, claims, attorneys' fees,
damages, injuries, causes of action, and losses of any kind that any of
the Shenandoah Parties ever had, now has, may assert or may in the future
claim to have against any of the Sprint Released Parties with respect to
any of the matters set forth on Exhibit A to this Agreement, and waives
any and all rights that any of the Shenandoah Parties may have with
respect to those matters ("Shenandoah's Specific Claims" and together with
Sprint's Specific Claims, the "Specific Claims").
(c) Complete Release. Except as provided in Sections 5 and 13(a),
this Agreement constitutes the complete compromise, settlement, accord and
satisfaction of all of the Claims with no reservation of any rights or
claims, whether stated or implied.
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5. Exceptions to Released Claims.
(a) Right to Collect Business Activity Amounts. The Parties are
releasing their right to collect any amounts for fees, credits and
business activity arising under any of the Sprint Agreements before the
Effective Date (the "Business Activity Amounts") only with respect to the
Specific Claims (as defined in Section 4). For the avoidance of doubt, the
provisions in the Management Agreement, as amended by the Addendum,
regarding the limitations on invoicing and payment obligations apply to
Business Activity Amounts that accrued before the Effective Date. The
Parties may bill, collect and settle the Business Activity Amounts that
accrue before the Effective Date and that are not Specific Claims in
accordance with the terms of the Sprint Agreements (without giving effect
to the Addendum) and in accordance with past practice, notwithstanding the
releases set forth in Section 4. For the purpose of clarification,
business activities, including the reconciliation of PCFID, are not
released unless listed on Exhibit A.
(b) Terminating and Originating Access Fees. The Shentel Parties
have refunded to the Sprint Parties certain amounts that the Sprint
Parties paid to the Shentel Parties for access fees. The Addendum provides
for a new section 10.4.3 to the Management Agreement that sets forth the
Parties' rights and obligations respecting access fees. The Parties do not
release each other under this Agreement for their respective Claims to
those amounts or to any other amounts to which they are entitled under the
Management Agreement (after giving effect to the Addendum that becomes
effective as of the Effective Date) for access fees.
(c) High Travel Subscribers. The Parties have discussed, in general
and specifically as it relates to all Shentel markets, Shentel's concerns
regarding high travel subscribers that use wireless services predominantly
outside the Service Area. The Parties will continue to assess the relative
imbalance in economics caused by high travel subscribers and might agree
to define appropriate adjustments by March 31, 2004. This Section 5(c)
does not imply that the Sprint Parties are under any obligation to make
changes to their current views and policies regarding travel, nor does it
imply that the Shentel Parties waive any rights or claims related to these
subscribers not waived in this Agreement.
(d) Future Claims. Nothing in this Agreement constitutes a release
by any Party of claims arising after the date of this Agreement, including
without limitation future claims arising under the Management Agreement
after giving effect to the Addendum that becomes effective as of the
Effective Date.
(e) Indemnification. This Agreement does not waive the parties'
rights and responsibilities under section 13 of the Management Agreement
with respect to indemnification for claims brought by third parties
arising prior to the date of this Agreement.
(f) Most Favored Nation. This Agreement does not waive any of
Shentel's rights under the new section 1.10 of the Management Agreement,
even if the changes to
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an Other Manager's Management Agreement are in settlement of that Other
Manager's claims that are similar to claims that Shentel is releasing
under this Agreement.
6. Representations and Warranties. Each of the Parties represents and
warrants to the other Parties that:
(a) it has not commenced any action or proceeding against any other
Party concerning any of the Claims or Specific Claims, before any agency
or other governmental authority, at law, in equity, in arbitration, or
otherwise;
(b) no promise, inducement or agreement not expressed in this
Agreement or the Addendum has been made;
(c) it has the full right, power and authority to enter into this
Agreement, and to perform according to the terms of this Agreement;
(d) the Party is an entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization;
(e) neither the execution, delivery and performance of this
Agreement, nor the consummation by the Party of the transactions
contemplated by this Agreement, will conflict with, violate or result in a
breach of:
(i) any law, regulation, order, writ, injunction, decree,
determination or award of any governmental authority or any
arbitrator, applicable to the Party, or
(ii) any of the terms, conditions or provisions of the
certificate of limited partnership or certificate or articles of
incorporation or bylaws (or other governing documents) of the Party,
or
(iii) any material agreement of the Party, or
(iv) any material instrument to which the Party is or may be
bound or to which any of its material properties or assets is
subject;
(f) it has obtained all necessary consents and approvals required to
enter into this Agreement;
(g) there are no actions, suits, proceedings or investigations
pending or, to the knowledge of the Party, threatened against or affecting
the Party or any of its properties, assets or businesses in any court or
before or by any governmental agency that could, if adversely determined,
reasonably be expected to have a material adverse effect on the Party's
ability to perform its obligations under this Agreement and the Addendum;
(h) it has negotiated the terms of this Agreement, and this
Agreement is the result of arms-length negotiations between the Parties
and their respective attorneys; and
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(i) it has not assigned or otherwise transferred any interest in any
of the Claims or Specific Claims.
7. Covenant Not To Sue or Assist Third Parties. No Party will (a) commence
or in any manner seek relief against another Party through any suit or
proceeding arising, based upon, or relating to any of the Claims or Specific
Claims, or (b) 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 a Claim or Specific Claim. Nor will any Party assist
the efforts of any third party attempting to enforce or collect an amount based
on a Claim or Specific Claim, 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. Indemnification. The Sprint Parties and the Shenandoah Parties will
indemnify, hold harmless and defend each other against all claims, demands,
judgments, causes of action, losses, costs, damages, penalties, fines, taxes,
expenses or liabilities, including reasonable attorneys' fees and costs of
defense, brought against or incurred by them, arising from or in connection with
an attempt by or on behalf of any third party to enforce or collect an amount
based on a Claim or Specific Claim.
10. Expenses. The Parties will pay their own expenses and attorneys' fees
incurred in connection with the negotiation and execution of this Agreement and
the Addendum.
11. 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 Claims and Specific
Claims. Nevertheless, except as set forth in section 5 hereof, it is the
intention of the Parties to fully, finally and forever settle and release all
such claims, including claims for damages and losses that are presently unknown
or unanticipated. In furtherance of this intention, the releases given in this
Agreement are and will remain in effect as full and complete mutual releases of
Claims and Specific Claims, except as set forth in section 5 hereof,
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 foregoing, each Party waives and relinquishes any
right or benefit that such Party has or may have under any provision of
statutory or non-statutory law that may 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 may have materially affected
the decision to give the release.
12. 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
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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 may 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.
13. Enforcement of Agreement; Injunctive Relief.
(a) The releases given in this Agreement do not include a release of
any liabilities, claims, damages, injuries or losses that may arise under
this Agreement.
(b) Each Party acknowledges and agrees that in the event of any
breach of this Agreement, the non-breaching Party or Parties may be
irreparably harmed and may not be made whole by monetary damages.
Accordingly, the Parties, in addition to any other remedy to which they
may be entitled, will be entitled to seek injunctive or other equitable
relief in any court of competent jurisdiction to the extent permitted by
applicable law.
(c) Each Party waives, to the fullest extent permitted by law, the
right to trial by jury in any legal proceeding arising out of or relating
to the enforcement of this Agreement.
(d) The prevailing Party will be entitled to recover from the
opposing Party its expenses (including reasonable attorneys' fees and
costs) incurred in connection with any claim, action or lawsuit brought to
enforce this Agreement.
14. Assignment. No Party may assign any of its rights under this Agreement
or delegate its duties under it to any person or entity not a Party unless it
obtains the prior written consent of the other Parties to this Agreement, which
consent may be withheld at such other Party's absolute discretion.
15. Limitation on Rights of Others. Nothing in this Agreement, whether
express or implied, will be construed to give any person other than the Parties
any legal or equitable right, remedy or claim under or in respect of this
Agreement.
16. Confidentiality. The terms and provisions of this Agreement are
confidential and proprietary to the Sprint Parties and to the Shenandoah Parties
and are subject to the terms of Section 12.2 of the applicable Management
Agreement between the Parties.
17. 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 Kansas law, without giving effect
to any choice of law or conflict of law rules or provisions (whether of
Kansas or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than Kansas.
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(b) Jurisdiction.
(i) Each Party irrevocably and unconditionally submits to the
nonexclusive jurisdiction of (A) any Kansas state court located in the
County of Johnson or (B) the United States District Court for the District
of Kansas, and any appellate court from any such court, in any suit,
action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment relating to this Agreement.
With respect to such suit, action or proceeding, each Party irrevocably
waives, to the fullest extent permitted by law, the right to object that
such court does not have jurisdiction over such party.
(ii) Each Party irrevocably and unconditionally waives, to the
fullest extent it may legally do so, any objection that it may now or
later have to the venue of any suit, action or proceeding arising out of
or relating to this Agreement in a Kansas state court located in the
County of Johnson or the United States District Court for the District of
Kansas. Each Party irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such suit,
action or proceeding in any such court.
(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 is binding on and inures 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. Every provision of this Agreement is intended to
be severable. 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.
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(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.
[The remainder of this page is left blank intentionally.]
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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
The Parties have executed this Agreement on the date first above written.
SPRINT SPECTRUM L.P.
By: /S/ David B. Bottoms
------------------------------------
Name: David B. Bottoms
Title: V.P., Alliances
WIRELESSCO, L.P.
By: /S/ David B. Bottoms
------------------------------------
Name: David B. Bottoms
Title: V.P., Alliances
APC PCS, LLC
By: /S/ David B. Bottoms
------------------------------------
Name: David B. Bottoms
Title: V.P., Alliances
PHILLIECO, L.P.
By: /S/ David B. Bottoms
------------------------------------
Name: David B. Bottoms
Title: V.P., Alliances
SPRINT COMMUNICATIONS COMPANY L.P.
By: /S/ Thomas E. Murphy
------------------------------------
Name: Thomas E. Murphy
Title: Sr. V.P., Communications and
Brand Management
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SHENANDOAH PERSONAL
COMMUNICATIONS COMPANY
By: /S/ Christopher E. French
------------------------------------
Name: Christopher E. French
Title: President
SHENANDOAH TELECOMMUNICATIONS
COMPANY
By: /S/ Christopher E. French
------------------------------------
Name: Christopher E. French
Title: President
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EXHIBIT A
I. Claims that are being released in connection with the settlement payment
under this Agreement:
o All claims in connection with the following 3G Service Bureau invoiced
fees:
> AFS-012945
> AFS-013057
> AFS-013207
> AFS-013344
> AFS-013440
> AFS-013528
> AFS-013573
> AFS-013738
> AFS-013888
> AFS-014016
> AFS-014153
> AFS-014395
> AFS-014646
> AFS-014763
> AFS-014955
> AFS-015100
> AFS-015383
o All claims in connection with the following disputed software license
invoiced fees:
> AFS-013383
> AFS-014448
> AFS-015068
> AFS-015511
o All claims in connection with the following invoices for recovery of
finance charges:
> FC-19970
o All claims in connection with the PRL dispute listed under Issue ID 10886.
o All claims in connection with the Accounts Receivable Reconciliation
dispute listed under Issue ID 10888.
o All claims in connection with the Documentation of
Settlement/Miscellaneous Invoices dispute concerning access verification
and local interconnection revenues and costs under Issue ID 10889.
II. Claims that have been previously settled:
o All claims in connection with the Travel Settlements with Other Affiliates
dispute listed under Issue ID 10887 settled on May 22, 2003.
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