AGREEMENT AND PLAN
OF
RECAPITALIZATION
This AGREEMENT AND PLAN OF RECAPITALIZATION (the "Agreement") is made and
entered into among XXXXXX COMMUNICATIONS CORPORATION, an Oklahoma corporation
("DCC"), XXXXXX OPERATING CO., L.L.C., an Oklahoma limited liability company and
a wholly-owned subsidiary of DCC ("DOCLLC"), XXXXXX XX LIMITED PARTNERSHIP, an
Oklahoma limited partnership ("DCCLP"), XXXXXXX X. XXXXXX, an individual
("Xxxxxx"), X.X. CHILDS EQUITY PARTNERS II, L.P., a Delaware limited partnership
("Childs"), AT&T WIRELESS SERVICES, INC., a Delaware corporation ("AT&T") and
the holders of issued and outstanding shares of DCC's Class A Common Stock, par
value $.001 per share ("Old Class A Common Stock") and Class D Preferred Stock,
par value $1.00 per share ("Class D Preferred Stock") listed on Schedule A
annexed hereto (the "JWC Group Stockholders" and, together with DOCLLC, DCCLP,
Xxxxxx, Childs, and AT&T, the "Stockholders").
RECITALS
1. DCC has an authorized capital consisting of 3,000,000 shares of
preferred stock, par value $1.00 per share ("Preferred Stock"), and 1,500,000
shares of common stock, par value $.001 per share ("Old Common Stock"). The
following reflects the classes of DCC's Preferred Stock and Old Common Stock,
including the number of shares designated for each class and the number of
shares of each class outstanding at January 3, 2000.
NUMBER OF SHARES
--------------------------
CLASS OF STOCK AUTHORIZED OUTSTANDING
-------------- ---------- -----------
Class A 5% Non-Cumulative, Non-Voting, Non- 450,000 314,286
Convertible Preferred Stock ("Class A
Preferred Stock")...............................
Class D Preferred Stock........................... 90,000 75,093.7
Class E Preferred Stock ("Class E Preferred
Stock")......................................... 517,000 0
12 1/4% Senior Exchangeable Preferred Stock
(12 1/4% Senior Preferred Stock)................ 734,000 287,602
13% Senior Exchangeable Preferred Stock due
2009 ("13% Senior Preferred Stock")............. 500,000 181,229
Other Preferred Stock............................. 709,000 0
Class A Common Stock, par value $.001 per
share ("Old Class A Common Stock").............. 1,438,000 491,954
Class B Common Stock, par value $.001 per
share ("Old Class B Common Stock").............. 31,000 0
Class C Common Stock, par value $.001 per
share ("Class C Common Stock").................. 31,000 0
2. DCC intends to effect an initial public offering ("IPO") of its
New Class A Common Stock (defined below). In order to effect its IPO, DCC must
complete a recapitalization to simplify its corporate structure to position
itself for its IPO.
3. DCC has filed a registration statement on Form S-1 with the
Securities and Exchange Commission (Registration File No. 333-90759) with
respect to its IPO, which HAS BEEN AMENDED BUT WHICH HAS not yet become
effective (the "Registration Statement").
4. DCC and the Stockholders have agreed to the plan of
recapitalization for DCC as set forth herein to facilitate the IPO and have
agreed to effect the transactions provided for herein.
AGREEMENTS
In consideration of the mutual covenants, promises, benefits and burdens
herein set forth, and in order to effect the recapitalization of DCC, the
parties agree as follows:
1. CLASS A PREFERRED STOCK. DOCLLC is the beneficial owner of all of
the outstanding shares of Class A Preferred Stock. DOCLLC agrees that
immediately prior to the Effective Time (defined below) it will distribute all
of the Class A Preferred Stock which it beneficially owns to DCC. Upon receipt
of the Class A Preferred Stock, DCC shall cancel and retire all outstanding
shares of its Class A Preferred Stock.
2. CLASS D PREFERRED STOCK. Each holder of outstanding shares of
Class D Preferred Stock represents that it is the beneficial owner of shares of
Class D Preferred Stock. Each such holder acknowledges that pursuant to the
Certificate of Designation, Preferences and Relative and Other Special Rights,
and Qualifications, Limitations and Restrictions of Class D Preferred Stock,
each share of Class D Preferred Stock is convertible into one share of Old Class
A Common Stock and one share of DCC's Class E Preferred Stock, subject to
appropriate anti-dilution adjustment as provided in the Certificate of
Designation. Each such holder agrees that immediately prior to the Effective
Time (defined below) it will convert each such share of Class D Preferred Stock
into shares of Old Class A Common Stock and Class E Preferred Stock, as provided
in the Certificate of Designation. Each such holder's execution of this
Agreement constitutes the irrevocable election by the holder to convert each
share of Class D Preferred Stock beneficially owned by such holder into one
share of Class E Preferred Stock and one share of Old Class A Common Stock,
subject to appropriate anti-dilution adjustment as provided in the Certificate
of Designation to be effective and operative immediately prior to the Effective
Time.
3. AMENDMENT TO CERTIFICATE OF INCORPORATION. DCC agrees to amend
and restate its Certificate of Incorporation (the "New Certificate of
Incorporation") so that DCC will be authorized to issue an aggregate of
251,037,226 shares of capital stock, which shall consist of:
A. 175 million shares of Class A Common Stock, par value $.001
per share ("New Class A Common Stock");
B. 70 million shares of Class B Common Stock, par value $.001
per share ("New Class B Common Stock");
C. 6 million shares of Preferred Stock, par value $1.00 per
share, of which 734,000 shares shall be designated as 12
1/4% Senior Exchangeable Preferred Stock 500,000 shares
shall be designated as 13% Senior Exchangeable Preferred
Stock , and 40,000 shares shall be designated as Class E
Preferred Stock;
D. 4,226 shares of Class C Common Stock, par value $.001 per
share ("Class C Common Stock"); and
E. 33,000 shares of Class D Common Stock, par value $.001 per
share ("New Class D Common Stock").
The form of DCC's proposed New Certificate of Incorporation, including the
terms, rights, powers and preferences of DCC's authorized capital stock, is
attached as Schedule B and incorporated herein by this reference.
DCC shall file the New Certificate of Incorporation with the Secretary of
State of Oklahoma so that the New Certificate of Incorporation will become
effective immediately prior to the consummation of the IPO. The time that the
New Certificate of Incorporation becomes effective is herein referred to as the
"Effective Time."
4. REDESIGNATION OF OLD CLASS B COMMON STOCK. The authorized shares
of Old Class B Common Stock will be redesignated as New Class D Common Stock.
5. RECLASSIFICATION OF OLD CLASS A COMMON STOCK, OLD CLASS B COMMON
STOCK AND CLASS C COMMON STOCK; STOCK SPLIT. At the Effective Time, (a) each
share of Old Class A Common Stock, par value $.001 per share, outstanding
immediately prior to the Effective Time shall be, without further action by the
Corporation or any holder thereof, changed, converted and reclassified into a
number of shares of New Class B Common Stock equal to the number of shares
representing a 111.44 to 1 stock split for each share (the "Class A Conversion
Factor"), and each certificate then outstanding stating on its face that it
represents shares of Old Class A Common Stock existing prior to the Effective
Time, shall automatically represent, from and after the Effective Time, a number
of shares of New Class B Common Stock
equal to the number of shares on the face of the certificate of Old Class A
Common Stock existing prior to the Effective Time multiplied by the Class A
Conversion Factor; (b) each share of Old Class B Common Stock, par value
$.001 per share, outstanding immediately prior to the Effective Time shall
be, without further action by the Corporation or any holder thereof, changed,
converted and reclassified into a number of shares of newly authorized New
Class A Common Stock equal to the number of shares representing a 111.44 to 1
stock split for each share (the "Class B Conversion Factor"), and each
certificate then outstanding stating on its face that it represents shares of
Old Class B Common Stock existing prior to the Effective Time, shall
automatically represent, from and after the Effective Time, a number of
shares of New Class A Common Stock equal to the number of shares on the face
of the certificate of Class A Common Stock existing prior to the Effective
Time multiplied by the Class B Conversion Factor, and (c) each share of Class
C Common Stock, par value $.001 per share, outstanding immediately prior to
the Effective Time shall be, without further action by the Corporation or any
holder thereof, changed, converted and reclassified into a number of shares
of New Class A Common Stock equal to the number of shares representing a
11.44 to 1 stock split for each share (the "Class C Conversion Factor"), and
each certificate then outstanding stating on its face that it represents
shares of Class C Common Stock existing prior to the Effective Time, shall
automatically represent, from and after the Effective Time, a number of
shares of New Class A Common Stock equal to the number of shares on the face
of the certificate of Class C Common Stock existing prior to the Effective
Time multiplied by the Conversion Factor.
6. FRACTIONAL SHARES. In connection with the stock split described
in Section 5 above, no fractional shares of Class A Common Stock or Class B
Common Stock shall be issued. Instead, any fractional shares of New Class A
Common Stock or New Class B Common Stock which would otherwise be issued shall
be rounded to the nearest whole share.
7. OUTSTANDING OPTIONS. DCC has heretofore reserved an aggregate of
31,000 shares of its Old Class B Common Stock and 31,000 shares of its Class C
Common Stock for issuance upon the exercise of options granted and to be granted
under its 1996 Stock Option Plan, as amended (the "Plan"). At the Effective
Time, Old Class B Common Stock shall be redesignated as New Class D Common
Stock. The aggregate number of shares of New Class D Common Stock (formerly Old
Class B Common Stock) reserved for issuance under the Plan shall be 33,000
shares. The number of shares of Class C Common Stock reserved for issuance under
the Plan shall be 4,226 shares.
8. RETIREMENT OF TREASURY STOCK. Immediately prior to the Effective
Time, DCC shall retire 81,198 shares of its Old Class A Common Stock currently
issued but not outstanding and held as treasury stock.
9. STOCKHOLDER ACTION. The execution and delivery of this Agreement
by a Stockholder shall be deemed a waiver of a notice of a meeting of
stockholders of DCC for the purpose of considering and voting on the
transactions provided for herein or contemplated hereby, and shall constitute
the consent of each such Stockholder to all such transactions.
10. MISCELLANEOUS.
10.1 SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the execution and delivery of this
Agreement. Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party.
10.2. CUMULATIVE REMEDIES. No failure on the part of any party to
exercise and no delay in exercising any right hereunder will operate as a waiver
thereof, nor shall any single or partial exercise by any party of any right
hereunder preclude any other or further right of exercise
thereof or the exercise of any other right.
10.3. EXPENSES. Each party agrees to pay all his, her or its
expenses incurred in connection with the transaction herein contemplated,
including, without limitation, all filing fees, recording costs, safekeeping
fees, charges and disbursements of legal counsel.
10.4. NOTICES. All notices, requests and demands hereunder will
be served by registered or certified mail, postage prepaid, as follows:
Xxxxxxx X. Xxxxxx: 00000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
DCC, DOCLLC, and DCCLP: c/o Xx. Xxxxxxx X. Xxxxxx
Xxxxxx Communications Corporation
00000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
With a copy to: McAfee & Xxxx A Professional Corporation
10th Fl., Two Leadership Square
000 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxx, Esq.
Childs: c/o Xx. Xxxx X. Xxxxxxxx
X.X. Childs Associates, L.P.
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
AT&T: AT&T Wireless Services, Inc.
0000 000xx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxxxxx 00000
JWC Group Stockholders: c/o Xxxx X. Xxxxxxxx, as agent and
attorney-in-fact
X.X. Childs Associates, L.P.
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
or at such other address as any party hereto shall designate for such purpose in
a written notice to the other parties hereto.
10.5. CONSTRUCTION. This Agreement and the documents issued
hereunder are executed and delivered as an incident to a transaction negotiated
and to be performed in Oklahoma City, Oklahoma County, Oklahoma. The
descriptive headings of the paragraphs of this Agreement are for convenience
only and are not to be used in the construction of the content of this
Agreement. This Agreement may be executed in multiple counterparts, each of
which
will be an original instrument, but all of which will constitute one
agreement.
10.6. SUBMISSION TO JURISDICTION; VENUE. Each of the parties
hereto hereby irrevocably: (a) submits and consents, and waives any objection
to personal jurisdiction in the State of Oklahoma for the enforcement of this
Agreement; and (b) waives any and all personal rights under the law of any state
to object to jurisdiction in the State of Oklahoma for the purpose of litigation
to enforce this Agreement.
10.7. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
10.8. BINDING EFFECT. This Agreement will be binding on each of
the parties hereto, and his/her or its heirs, representatives, successors and
assigns, and will inure to the benefit of each of the parties hereto, his, her
or its heirs, representatives, successors and assigns.
10.9. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto and may be amended only by written instrument
executed by the parties hereto.
10.10. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of which
when taken together shall constitute but one agreement.
IN WITNESS WHEREOF, this instrument is executed as of January ___, 2000.
DCC: XXXXXX COMMUNICATIONS CORPORATION
By
Xxxxxx X. Xxxxxx, Vice President
DOCLLC: XXXXXX OPERATING CO., L.L.C.
By
Xxxxxx X. Xxxxxx, Assistant General Manager
DCCLP: XXXXXX XX LIMITED PARTNERSHIP
By: RLD, INC., General Partner
By
Name:
Title:
XXXXXX:
Xxxxxxx X Xxxxxx
CHILDS: X.X. CHILDS EQUITY PARTNERS II, L.P.
JWC Associates, Inc., General Partner
By: X.X. CHILDS ADVISORS, II, L.P.,
ITS GENERAL PARTNER
By: X.X. CHILDS ASSOCIATES, L.P., ITS
GENERAL PARTNER
By: X.X. CHILDS ASSOCIATES, INC., ITS
GENERAL PARTNER
By
--------------------------------
XXXX X. XXXXXXXX, VICE PRESIDENT
AT&T: AT&T WIRELESS SERVICES, INC.
By
Xxxxxxx X. Xxxxx
Title:
---------------------------
JWC GROUP STOCKHOLDERS: XXXX FAMILY TRUST
By
Xxxx X. Xxxx, Xx., Trustee
------------------------------
Xxxx X. Childs
------------------------------
Xxxxxxx X. Childs
------------------------------
Xxxxx X. Childs
------------------------------
Xxxxxxx X. Xxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxx
------------------------------
B. Xxxx XxxXxxxxx
------------------------------
Xxxxxxx X. Xxxx
------------------------------------
Xxxx X. Xxxxxxxx
CHECHESSE CREEK TRUST
By
------------------------------------
Xxxx X. Xxxxxxxx, Trustee
------------------------------------
Xxxxxx X. Xxxxx
SGS 1995 FAMILY LIMITED
PARTNERSHIP
By
------------------------------------
Xxxxxx X. Xxxxx, General Partner
XXXXXX X. XXXXX 1995
IRREVOCABLE TRUST
By
------------------------------------
Xxxxxx X. Xxxxx, Donor
SGS III 1995 FAMILY LIMITED
PARTNERSHIP
By
------------------------------------
Xxxxxx X. Xxxxx, General Partner
------------------------------------
Xxxx X. Xxxxxx
XXXX X. XXXXXX IRREVOCABLE
FAMILY TRUST
By
------------------------------------
Xxxx Xxxxxx, Trustee
SUTTIN FAMILY TRUST II
By
------------------------------------
Xxxx X. Xxxxxx, Trustee
XXXXXX XXXXXX SELF DIRECTED
CUSTODIAL XXX
By
------------------------------------
Xxxxxx X. Xxxx, Vice President,
Trust Bank of _______________
------------------------------------
Xxxxxx X. Xxx
XXX FAMILY TRUST
By
------------------------------------
Xxxxxx X. Xxx, Trustee
------------------------------------
Xxx Xxxxx
------------------------------------
Xxxxx X. Xxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxx
REBACLIFF, XXXXX & XXXXX, LLC
By
------------------------------------
Xxxxxxx X. Smart, Member
------------------------------------
Xxxxx X. Xxxxxxx, Xx.
------------------------------------
Xxxxx Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxx
OFS INVESTMENT PARTNERS II
By
------------------------------------
Xxxxx X. Xxxxx, Administrative
Managing Partner
*
------------------------------------
Xxxx X. Xxxxxxxx, as agent and
attorney-in-fact for the JWC Group
Stockholders under the Stockholder
Appointment of Agent and Power of
Attorney, and not in his individual
capacity
SCHEDULE A
SHAREHOLDER
X.X. Childs Equity Partners II, X.X.
Xxxx Family Trust
Xxxx X. Childs
Xxxxxxx X. Childs
Xxxxx X. Childs
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxx
X. Xxxx XxxXxxxxx
Xxxxxxx X. Xxxx
Xxxx X. Xxxxxxxx
Chechesse Creek Trust
Xxxxxx X. Xxxxx
SGS 1995 Family Limited Partnership
Xxxxxx X. Xxxxx 1995 Irrevocable Trust
SGS III 1995 Family Limited Partnership
Xxxx X. Xxxxxx
Xxxx X. Xxxxxx Irrevocable Family Trust
Suttin Family Trust II
Xxxxxx Xxxxxx Self Directed Custodial XXX
Xxxxxx X. Xxx
Xxx Family Trust
Xxx Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx
Rebacliff, Xxxxx & Xxxxx, L.L.C.
Xxxxx X. Xxxxxxx, Xx.
Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxx
OFS Investment Partners II
