Exhibit 2.1
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
CELLCO PARTNERSHIP,
AIRTOUCH CELLULAR
and
RURAL CELLULAR CORPORATION
July 29, 2007
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TABLE OF CONTENTS
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PAGE
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RECITALS 1.....................................................................1
ARTICLE I THE MERGER; EFFECTIVE TIME; CLOSING.................................1
1.1 The Merger..........................................................1
1.2 Effective Time......................................................1
1.3 Effects of the Merger...............................................2
1.4 Closing.............................................................2
ARTICLE II SURVIVING CORPORATION...............................................2
2.1 Articles of Incorporation...........................................2
2.2 Bylaws..............................................................2
2.3 Directors...........................................................2
2.4 Officers............................................................2
ARTICLE III MERGER CONSIDERATION; CONVERSION OR CANCELLATION OF SHARES
IN THE MERGER................................................................3
3.1 Effect on Capital Stock.............................................3
3.2 Exchange of Certificates and Book-Entry Shares......................6
3.3 Dissenting Shares...................................................8
3.4 No Further Rights or Transfers......................................8
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................9
4.1 Corporate Organization and Qualification............................9
4.2 Capitalization......................................................9
4.3 Authority Relative to this Agreement...............................11
4.4 Consents and Approvals; No Violation...............................11
4.5 SEC Reports; Financial Statements; No Undisclosed Liabilities......13
4.6 Disclosure Controls and Procedures.................................14
4.7 Absence of Certain Changes or Events...............................15
4.8 Litigation.........................................................15
4.9 Taxes..............................................................15
4.10 Employee Benefit Plans; Labor Matters................................
4.11 Environmental Laws and Regulations.................................19
4.12 Intangible Property................................................19
4.13 Compliance with Laws and Orders; Permits...........................19
4.14 Contracts..........................................................21
4.15 Proxy Statement....................................................22
4.16 Company Rights Plans...............................................23
4.17 Takeover Statutes..................................................23
4.18 Brokers and Finders................................................23
4.19 Opinion of Financial Advisor.......................................24
4.20 Interested Party Transactions......................................24
4.21 No Other Representations and Warranties............................24
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT, Holdings
AND MERGER SUB..............................................................24
5.1 Corporate Organization and Qualification...........................24
5.2 Authority Relative to this Agreement...............................25
5.3 Consents and Approvals; No Violation...............................25
5.4 Available Funds....................................................26
5.5 Proxy Statement....................................................26
5.6 Interim Operations of Merger Sub...................................26
5.7 Brokers and Finders................................................26
5.8 Share Ownership....................................................27
5.9 No Other Representations and Warranties............................27
ARTICLE VI ADDITIONAL COVENANTS AND AGREEMENTS................................27
6.1 Conduct of Business of the Company.................................27
6.2 Proxy Statement....................................................30
6.3 Special Meeting; Recommendation....................................31
6.4 No Solicitation....................................................31
6.5 Reasonable Best Efforts..............................................
6.6 Access to Information..............................................35
6.7 Publicity..........................................................36
6.8 Indemnification of Directors and Officers..........................36
6.9 Employees..........................................................37
6.10 Section 16(b)......................................................39
6.11 Control of the Company's Operations................................39
6.12 Merger Sub and Surviving Corporation...............................39
6.13 Compliance with Laws...............................................39
6.14 Treatment of Certain Notes.........................................39
6.15 Additional Agreements..............................................41
6.16 Potential Sale of Assets...........................................42
6.17 CLEC Certificate...................................................42
ARTICLE VII CONDITIONS TO CONSUMMATION OF THE MERGER..........................43
7.1 Conditions to Each Party's Obligations to Effect the Merger........43
7.2 Conditions to the Company's Obligations to Effect the Merger.......43
7.3 Conditions to Parent's, Holdings' and Merger Sub's Obligations
to Effect the Merger............................................44
7.4 Frustration of Closing Conditions..................................45
ARTICLE VIII TERMINATION; AMENDMENT; WAIVER...................................45
8.1 Termination by Mutual Consent......................................45
8.2 Termination by Either Parent or the Company........................45
ii
8.3 Termination by Parent..............................................46
8.4 Termination by the Company.........................................46
8.5 Effect of Termination..............................................46
ARTICLE IX MISCELLANEOUS AND GENERAL..........................................47
9.1 Payment of Expenses................................................47
9.2 Survival of Representations and Warranties; Survival of
Confidentiality.................................................48
9.3 Modification or Amendment..........................................48
9.4 Notices............................................................48
9.5 Interpretation.....................................................50
9.6 Waiver of Conditions...............................................50
9.7 Counterparts.......................................................50
9.8 Governing Law......................................................50
9.9 Jurisdiction.......................................................50
9.10 Service of Process.................................................51
9.11 Specific Performance...............................................51
9.12 Assignment.........................................................51
9.13 Entire Agreement; Third-Party Beneficiaries........................51
9.14 Certain Definitions; Other Definitional Provisions.................51
9.15 Obligation of Parent...............................................54
9.16 Severability.......................................................54
9.17 Headings...........................................................54
9.18 WAIVER OF JURY TRIAL...............................................54
EXHIBIT A Action by Written Consent of Holders of Class M Preferred Stock
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DEFINED TERMS
Terms Section
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Agreement..............................................................Preamble
Articles of Merger..........................................................1.2
Board................................................................3.1(d)(iv)
Book-Entry Shares........................................................3.2(b)
Bylaws......................................................................2.2
Cap......................................................................6.8(b)
Certificates.............................................................3.2(b)
Change of Recommendation.................................................6.4(e)
Charter.....................................................................2.1
Class A Common Stock.....................................................3.1(a)
Class A Rights........................................................3.1(b)(i)
Class A Rights Plan...................................................3.1(b)(i)
Class B Common Stock.....................................................3.1(a)
Class B Rights........................................................3.1(b)(i)
Class B Rights Plan...................................................3.1(b)(i)
Class M Preferred Certificate of Designation.............................3.1(c)
Class M Preferred Merger Consideration...................................3.1(c)
Class M Preferred Stock..................................................3.1(a)
Class M Shareholder Approval.............................................4.4(b)
Closing.....................................................................1.4
Closing Date................................................................1.4
Common Merger Consideration...........................................3.1(b)(i)
Communications Act...................................................4.4(a)(ii)
Communications Licenses.................................................4.13(c)
Company................................................................Preamble
Company Common Stock.....................................................3.1(a)
Company Disclosure Schedule..........................................ARTICLE IV
Company Equity Awards.................................................3.1(d)(v)
Company Material Adverse Effect......................................9.14(a)(i)
Company Material Contract...............................................4.14(b)
Company Merger Stock.....................................................3.1(a)
Company Permits.........................................................4.13(b)
Company Plans...........................................................4.10(a)
Company Recommendation...................................................4.3(b)
Company SAR..........................................................3.1(d)(ii)
Company SEC Reports......................................................4.5(a)
Company Shareholder Approval.............................................4.4(b)
Company Stock Option..................................................3.1(d)(i)
Company Stock Plans...................................................3.1(d)(i)
iv
Company Stock-Based Award...........................................3.1(d)(iii)
Competing Proposal.......................................................6.4(a)
Confidentiality Agreement...................................................6.6
Consideration Fund.......................................................3.2(a)
Contract............................................................9.14(a)(ii)
Deployment Requests.....................................................4.13(d)
Dissenting Shares...........................................................3.3
Effective Time..............................................................1.2
Employees................................................................6.9(a)
Environmental Laws.........................................................4.11
ERISA...................................................................4.10(a)
ERISA Affiliate.........................................................4.10(a)
ESPP..................................................................3.1(b)(i)
Exchange Act.........................................................14(a)(iii)
Exchangeable Preferred Certificate of Designation.......................6.14(a)
Exchangeable Preferred Stock.............................................3.1(a)
Exchangeable Preferred Stock Redemption Amount..........................6.14(b)
Expense Reimbursement....................................................9.1(b)
Expenses............................................................9.14(a)(iv)
FAA.....................................................................4.13(c)
FAA Rules...............................................................4.13(f)
FCC..................................................................4.4(a)(ii)
FCC Licenses............................................................4.13(c)
FCC Rules............................................................4.4(a)(ii)
Final Order..........................................................9.14(a)(v)
Governmental Consents....................................................7.1(c)
Governmental Entity..................................................4.4(a)(ii)
Holdings...............................................................Preamble
HSR Act..............................................................4.4(a)(ii)
Indemnified Parties......................................................6.8(a)
Insured Parties..........................................................6.8(b)
Intervening Event...................................................9.14(a)(vi)
knowledge of the Company............................................9.14(a)(vi)
Laws....................................................................4.13(a)
MBCA...................................................................Recitals
Merger.................................................................Recitals
Merger Consideration.....................................................3.1(c)
Merger Sub.............................................................Preamble
Nasdaq...................................................................4.6(b)
Order...................................................................4.13(a)
Parent.................................................................Preamble
Parent Material Adverse Effect.......................................14(a)(vii)
Parent Plans.............................................................6.9(b)
Paying Agent.............................................................3.2(a)
Permits.................................................................4.13(b)
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Proxy Statement..........................................................6.2(a)
PUC.................................................................14(a)(viii)
Representatives.............................................................6.6
Requisite Shareholder Approval...........................................4.4(b)
Rights.....................................................................4.16
Rights Agreements..........................................................4.16
SEC......................................................................4.5(a)
Securities Act......................................................9.14(a)(ix)
Shares...................................................................3.2(a)
Special Meeting..........................................................6.3(a)
State Licenses...............................................................20
Subsidiary...........................................................9.14(a)(x)
Superior Proposal........................................................6.4(a)
Surviving Corporation.......................................................1.1
Takeover Statute...........................................................4.17
Termination Date............................................................8.2
Termination Fee..........................................................8.5(b)
Third Party..............................................................6.4(a)
U.S......................................................................3.2(d)
Utilities Laws......................................................9.14(a)(xi)
Voting Debt..............................................................4.2(e)
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of July 29,
2007, by and among Cellco Partnership, a Delaware general partnership doing
business as Verizon Wireless ("Parent"), Airtouch Cellular, a California
corporation ("Holdings"), and Rural Cellular Corporation, a Minnesota
corporation (the "Company").
RECITALS
WHEREAS, each of the respective boards of directors of Parent, Holdings
and the Company has approved this Agreement and the transactions contemplated
hereby, and deems it advisable and in the best interests of its respective
shareholders to consummate the business combination transaction provided for
hereby, including the merger (the "Merger") of a Minnesota corporation to be
incorporated in accordance with Section 6.18 prior to the Closing ("Merger
Sub"), with and into the Company in accordance with the applicable provisions of
the Minnesota Business Corporation Act (the "MBCA"), upon the terms and subject
to the conditions set forth in this Agreement;
WHEREAS, holders of a majority of the outstanding Class M Preferred
Stock have consented to this Agreement and the transactions contemplated hereby;
WHEREAS, Holdings, to be the sole shareholder of Merger Sub, will
approve this Agreement and the Merger; and
WHEREAS, Parent and Holdings and the Company desire to make, and Merger
Sub will make, certain representations, warranties, covenants and agreements in
connection with the Merger;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein, 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:
ARTICLE I
THE MERGER; EFFECTIVE TIME; CLOSING
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1.1 The Merger. Subject to the terms and conditions of this Agreement
and in accordance with the MBCA, at the Effective Time, the Company and Merger
Sub shall consummate the Merger pursuant to which (a) Merger Sub shall be merged
with and into the Company and the separate corporate existence of Merger Sub
shall thereupon cease and (b) the Company shall be the successor or surviving
corporation (the "Surviving Corporation") in the Merger and shall continue to be
governed by the laws of the State of Minnesota.
1.2 Effective Time. Subject to the terms and conditions of this
Agreement, the parties shall cause articles of merger (the "Articles of Merger")
to be signed and filed on the
Closing Date (or on such other date as Parent and the Company may agree in
writing) with the Secretary of State of the State of Minnesota as provided in
the MBCA, and shall make all other deliveries, filings or recording required by
the MBCA in connection with the Merger. The Merger shall become effective on the
date on which the Articles of Merger are filed with the Secretary of State of
the State of Minnesota, or on such other later date as is agreed upon by the
parties and specified in the Articles of Merger, and at the time specified in
the Articles of Merger or, if not specified therein, by the MBCA, and such time
on such date of effectiveness is hereinafter referred to as the "Effective
Time."
1.3 Effects of the Merger. The Merger shall have the effects set
forth in the MBCA. Accordingly, from and after the Effective Time, the Surviving
Corporation shall have all the properties, rights, privileges, immunities,
powers and franchises and all debts, liabilities and duties of the Company.
1.4 Closing. The closing of the Merger (the "Closing") will take
place at 10:00 A.M., Central Time, on the date that is two (2) business days
after satisfaction or waiver of all of the conditions set forth in ARTICLE VII
hereof (other than conditions that by their terms are to be satisfied at the
Closing, but subject to the satisfaction or waiver of such conditions at the
Closing), at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, unless another time, date or place is agreed to
in writing by the parties hereto (such date on which the Closing is to take
place being the "Closing Date").
ARTICLE II
SURVIVING CORPORATION
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2.1 Articles of Incorporation. The articles of incorporation of
Merger Sub as in effect immediately prior to the Effective Time shall be the
articles of incorporation of the Surviving Corporation (the "Charter"), until
duly amended as provided therein or by applicable Law, except that the provision
containing the name of Merger Sub shall be amended and restated in its entirety
to state: "The name of the corporation is Rural Cellular Corporation."
2.2 Bylaws. The bylaws of Merger Sub, as in effect immediately prior
to the Effective Time, shall be the bylaws of the Surviving Corporation (the
"Bylaws"), except that the name of the Surviving Corporation shall be Rural
Cellular Corporation until duly amended as provided in the Charter, the Bylaws
or applicable Law.
2.3 Directors. The directors of Merger Sub at the Effective Time
shall, from and after the Effective Time, be the initial directors of the
Surviving Corporation until their successors have been duly elected or appointed
and qualified or until their earlier death, resignation or removal in accordance
with the Charter, the Bylaws or applicable Law.
2.4 Officers. The officers of the Company at the Effective Time shall, from and
after the Effective Time, be the initial officers of the Surviving Corporation
until their successors have been duly elected or appointed and qualified or
until their earlier death, resignation or removal in accordance with the
Charter, the Bylaws or applicable Law.
2
ARTICLE III
MERGER CONSIDERATION; CONVERSION OR CANCELLATION OF SHARES IN THE MERGER
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3.1 Effect on Capital Stock. Upon the terms and subject to the
conditions set forth in this Agreement, at the Effective Time, by virtue of the
Merger and without any action on the part of Parent, Holdings, Merger Sub, the
Company, the Surviving Corporation or the holders of any of the following
securities (except as set forth herein), the following shall occur:
(a) Cancellation of Treasury Stock. All shares of Class A common
stock, par value $.01 per share (the "Class A Common Stock"), Class B common
stock, par value $.01 per share (the "Class B Common Stock" and, together with
the Class A Common Stock, the "Company Common Stock"), 12 1/4% junior
exchangeable preferred stock, par value $.01 per share (the "Exchangeable
Preferred Stock") and Class M redeemable voting convertible preferred stock, par
value $.01 per share (the "Class M Preferred Stock" and, together with the
Exchangeable Preferred Stock and Company Common Stock, the "Company Merger
Stock") that are owned by any of Company's direct or indirect Subsidiaries and
any shares of Company Merger Stock owned by Parent, Holdings, Merger Sub or any
direct or indirect Subsidiary of Parent shall be cancelled and extinguished and
shall cease to exist, and no consideration shall be delivered in exchange
therefor.
(b) Conversion of Company Common Stock.
(i) Each share of Class A Common Stock, together with the
associated rights (the "Class A Rights") issued pursuant to the Class A
share rights agreement between the Company and Norwest Bank Minnesota, N.A.
(n/k/a Xxxxx Fargo Bank, N.A.), as rights agent, dated as of April 30,
1999, and the amendment thereto, dated as of March 31, 2000 (together, the
"Class A Rights Plan"), each share of Class B Common Stock, together with
the associated rights (the "Class B Rights") issued pursuant to the Class B
share rights agreement between the Company and Norwest Bank Minnesota,
N.A., as rights agent, dated as of April 30, 1999, and the amendment
thereto, dated as of March 31, 2000 (together, the "Class B Rights Plan"),
each share of Company Common Stock issued upon vesting of Company
Stock-Based Awards in accordance with Section 3.1(d)(iii) and each share of
Company Common Stock issued under the Company Employee Stock Purchase Plan
(the "ESPP") in accordance with Section 3.1(d)(iv), issued and outstanding
immediately prior to the Effective Time (other than shares to be cancelled
in accordance with Section 3.1(a) and other than Dissenting Shares) shall
be cancelled and extinguished and automatically converted into the right to
receive an amount in cash equal to $45.00, without any interest thereon
(the "Common Merger Consideration").
(ii) Upon such conversion, all such shares of Company Common
Stock shall no longer be outstanding and shall automatically be cancelled
and extinguished and shall cease to exist, and each Certificate or Book-
3
Entry Share previously representing any shares of Company Common Stock
shall thereafter represent only the right to receive the Common Merger
Consideration in respect of such shares upon the surrender of the
Certificates or Book-Entry Shares representing such shares in accordance
with Section 3.2 (or in the case of a lost, stolen or destroyed
certificate, upon delivery of an affidavit (and bond, if required) in a
manner provided in Section 3.2(g)).
(iii) The Common Merger Consideration shall be appropriately
adjusted to reflect fully the effect of any stock split, reverse stock
split, stock dividend (including any dividend or distribution of securities
convertible into Company Common Stock), reorganization, recapitalization,
reclassification or other like change with respect to Company Common Stock
having a record date on or after the date hereof and prior to the Effective
Time.
(c) Conversion of Class M Preferred Stock. Each share of Class M
Preferred Stock issued and outstanding immediately prior to the Effective Time
(other than shares to be cancelled in accordance with Section 3.1(a)) shall be
cancelled and extinguished and automatically converted into the right to receive
an amount equal to the sum of (i) $1,000 and (ii) any unpaid dividends accrued
thereon pursuant to the terms of the Certificate of Designation of Voting Power,
Preferences and Relative, Participating, Optional and Other Special Rights and
Qualifications, Limitations and Restrictions of the Class M Preferred Stock (the
"Class M Preferred Certificate of Designation") through and including the
Closing Date, in cash and without interest (the "Class M Preferred Merger
Consideration" and, together with the Common Merger Consideration, the "Merger
Consideration"). Upon such conversion, all such shares of Class M Preferred
Stock shall no longer be outstanding and shall automatically be cancelled and
extinguished and shall cease to exist, and each Certificate or Book-Entry Share
previously representing any shares of Class M Preferred Stock shall thereafter
represent only the right to receive the Class M Preferred Merger Consideration
in respect of such shares upon the surrender of the Certificates or Book-Entry
Shares representing such shares in accordance with Section 3.2 (or in the case
of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and
bond, if required) in a manner provided in Section 3.2(g)).
(d) Conversion of Company Stock Awards.
(i) Each stock option to purchase shares of Company Common
Stock, including those issued under the Company's 1995 Stock Compensation
Plan, 2006 Omnibus Incentive Plan and the Stock Option Plan for Nonemployee
Directors (collectively, together with the ESPP, the "Company Stock
Plans"), whether or not vested, and whether or not performance-based, which
is outstanding at the Effective Time (each, a "Company Stock Option"),
shall be cancelled and converted at the Effective Time into the right to
receive payment of an amount in cash equal to the product of (x) the number
of shares of Company Common Stock for which such Company Stock Option
(regardless of whether or not any such Company Stock Option is then vested
or exercisable) shall not theretofore have been exercised and (y) the
excess, if any, of the
4
Common Merger Consideration over the exercise price per share of such
Company Stock Option.
(ii) Each stock appreciation right with respect to Company
Common Stock, including those issued under the Company Stock Plans, whether
or not vested, and whether or not performance-based, which is outstanding
at the Effective Time (each, a "Company SAR"), shall be cancelled and
converted at the Effective Time into the right to receive payment of an
amount in cash equal to the product of (x) the number of shares of Company
Common Stock for which such Company SAR (regardless of whether or not any
such Company SAR is then vested or exercisable) shall not theretofore have
been exercised and (y) the excess, if any, of the Common Merger
Consideration over the xxxxx xxxxx per share of such Company SAR.
(iii) At the Effective Time, each right of any kind,
contingent or accrued, to receive shares of Company Common Stock or
benefits measured by the value of a number of shares of Company Common
Stock, and each award of any kind consisting of, or the value of which is
based on, shares of Company Common Stock (including restricted stock,
restricted stock units, performance units, performance shares and other
stock-based awards, other than Company Stock Options and Company SARs
(each, a "Company Stock-Based Award")) that is outstanding immediately
prior to the Effective Time, shall become fully vested and shall be
converted into the right to receive an amount in cash determined in
accordance with Section 3.1(b).
(iv) As soon as practicable following the date of this
Agreement, the board of directors of the Company (the "Board") (or, if
appropriate, any committee of the Board administering the ESPP), shall
adopt such resolutions or take such other actions as may be required to
provide that with respect to the ESPP, (x) the then-offering period shall
end on the day immediately prior to the day on which the Effective Time
occurs, (y) each participant's outstanding right to purchase shares of
Company Common Stock under the ESPP shall terminate on the day immediately
prior to such date; provided that all amounts allocated to each
participant's account under the ESPP as of such date shall thereupon be
used to purchase whole shares of Company Common Stock at the applicable
price determined under the terms of the ESPP using such date as the final
purchase date for such offering period and (z) the ESPP shall terminate
immediately following such purchases of Company Common Stock.
(v) All amounts payable to holders of Company Stock Options,
Company SARs and Company Stock-Based Awards (collectively, the "Company
Equity Awards") pursuant to this Section 3.1(d) shall be subject to any
required withholding of taxes and shall be paid without interest as soon as
practicable following the Effective Time.
5
(e) Merger Sub Capital Stock. Each share of common stock, par
value $0.01, of Merger Sub outstanding immediately prior to the Effective Time
shall be converted into one validly issued, fully paid and non-assessable share
of common stock of the Surviving Corporation. From and after the Effective Time,
all certificates representing the common stock of Merger Sub shall be deemed for
all purposes to represent the number of shares of common stock of the Surviving
Corporation into which they were converted in accordance with the immediately
preceding sentence.
(f) Redemption of Exchangeable Preferred Stock. The Exchangeable
Preferred Stock shall, if requested by Parent, be called for redemption at the
Effective Time in accordance with Section .
3.2 Exchange of Certificates and Book-Entry Shares.
(a) Paying Agent. At or prior to the Closing, Parent shall
deliver or cause to be delivered, in trust, to a bank or trust company
designated before the Closing Date by Parent and reasonably acceptable to the
Company (the "Paying Agent") pursuant to a paying agent agreement in form and
substance reasonably satisfactory to Parent and the Company, cash in an amount
sufficient to pay the aggregate Merger Consideration to be exchanged or paid in
accordance with this ARTICLE III, to be held for the benefit of and distributed
to the holders of shares of Company Common Stock and Class M Preferred Stock
(other than shares to be cancelled in accordance with Section 3.1(a))
(collectively, the "Shares") in accordance with this Section 3.2. The Paying
Agent shall agree to hold such funds (such funds, together with earnings
thereon, being referred to herein as the "Consideration Fund") for delivery as
contemplated by this Section 3.2 and upon such additional terms as may be agreed
upon by the Paying Agent.
(b) Exchange Procedures. Promptly after the Effective Time, the
Surviving Corporation shall cause the Paying Agent to mail to each holder of
record of a certificate or certificates which immediately prior to the Effective
Time represented outstanding Shares (the "Certificates") and to each holder of
record of Shares not represented by a certificate ("Book-Entry Shares") whose
Shares are converted pursuant to Section 3.1 into the right to receive Merger
Consideration (i) a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates or Book-Entry
Shares, as applicable, shall pass, only upon delivery of the Certificates (or
affidavits of loss in lieu thereof) or Book-Entry Shares to the Paying Agent and
shall be in such form and have such other provisions as the Surviving
Corporation may reasonably specify) and (ii) instructions for use in effecting
the surrender of the Certificates or Book-Entry Shares in exchange for the
applicable Merger Consideration. Upon surrender of a Certificate or a Book-Entry
Share for cancellation to the Paying Agent, together with such letter of
transmittal duly executed and completed in accordance with the instructions
thereto, and with such other documents as may be required pursuant to such
instructions, the holder of such Certificate or Book-Entry Share shall be
entitled to receive in exchange therefor the Merger Consideration which such
holder has the right to receive pursuant to the provisions of this ARTICLE III,
and the Certificate or Book-Entry Share so surrendered shall forthwith be
cancelled as of the Effective Time. In no event shall the holder of any
Certificate or Book-Entry Share be entitled to receive interest on any funds to
be received in the
6
Merger. The amount of any payment to a person in respect of Merger Consideration
shall be rounded to the nearest $.01. In the event of a transfer of ownership of
Shares which is not registered in the transfer of records of the Company, the
Merger Consideration may be issued to a transferee if the Certificate or
Book-Entry Share representing such Shares is presented to the Paying Agent
accompanied by all documents required to evidence and effect such transfer and
by evidence that any applicable stock transfer taxes have been paid.
(c) No Further Ownership Rights in Company Stock. The Merger
Consideration paid upon the surrender of Certificates or Book-Entry Shares in
accordance with the terms of this Agreement shall be deemed to have been paid in
full satisfaction of all rights pertaining to the Shares represented thereby.
From and after the Effective Time, the stock transfer books of the Company shall
be closed and there shall be no further registration of transfers on the stock
transfer books of the Surviving Corporation of the Shares which were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Certificates or Book-Entry Shares are presented to the Surviving Corporation for
any reason, they shall be canceled and exchanged as provided in this Section
3.2.
(d) Investment of Consideration Fund. The Consideration Fund
shall be invested by the Paying Agent as directed by Parent or the Surviving
Corporation; provided, however, that any such investments shall be in (i)
securities issued or directly and fully guaranteed or insured by the government
of the United States of America ("U.S.") or any agency or instrumentality
thereof and having maturities of not more than one month from the date of
investment or (ii) money market mutual or similar funds having assets in excess
of $1,000,000,000. Earnings on or constituting all or a portion of the
Consideration Fund shall be the sole and exclusive property of Parent and the
Surviving Corporation and shall be paid to Parent or the Surviving Corporation,
as Parent directs. No investment of the Consideration Fund shall relieve Parent,
the Surviving Corporation or the Paying Agent from making the payments required
by this ARTICLE III, and following any losses from any such investment, Parent
shall promptly provide additional funds to the Paying Agent for the benefit of
the holders of Shares at the Effective Time in the amount of such losses, which
additional funds will be deemed to be part of the Consideration Fund.
(e) Tax Withholding. Each of the Paying Agent, Parent, Holdings
and the Surviving Corporation shall be entitled to deduct and withhold from the
Merger Consideration (and any other amounts payable in accordance with this
Agreement) otherwise payable to any holder of Shares such amounts as the Paying
Agent, Parent or the Surviving Corporation is required to deduct and withhold
with respect to the making of such payment under the Code, or any provision of
U.S. federal, state or local tax law or any other non-U.S. tax law or any other
applicable legal requirement. To the extent that amounts are so withheld by the
Paying Agent, Parent or the Surviving Corporation, such amounts withheld from
the Merger Consideration (or from any other amounts payable in accordance with
this Agreement) shall be treated for all purposes of this Agreement as having
been paid.
(f) Termination of Consideration Fund. Any portion of the
Consideration Fund which remains undistributed to the shareholders of the
Company for six (6) months after the Effective Time shall be delivered to the
Surviving Corporation, upon demand,
7
and any shareholders of the Company who have not theretofore complied with this
ARTICLE III shall thereafter look only to the Surviving Corporation (subject to
abandoned property, escheat and other similar laws) as general creditors for
payment of their claim for any Merger Consideration. Neither Parent nor the
Surviving Corporation shall be liable to any holder of Shares for any Merger
Consideration delivered to a public official pursuant to any applicable
abandoned property, escheat or other similar laws.
(g) Lost, Stolen or Destroyed Certificates. In the event any
Certificates shall have been lost, stolen or destroyed, the Paying Agent shall
issue in exchange for such lost, stolen or destroyed Certificates, upon the
making of an affidavit of that fact by the holder thereof, such Merger
Consideration in respect of the Shares represented by such lost, stolen or
destroyed Certificates; provided, however, that Parent may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed Certificates to deliver a bond in such sum as it may
reasonably direct as indemnity against any claim that may be made against Parent
or the Paying Agent with respect to the Certificates alleged to have been lost,
stolen or destroyed.
3.3 Dissenting Shares. Notwithstanding anything in this Agreement to
the contrary, Shares outstanding immediately prior to the Effective Time and
held by a holder who has not voted in favor of the Merger and who has filed with
the corporation a written notice of intent to demand the fair value of the
Shares owned by the holder in accordance with sections 302A.471 and 302A.473 of
the MBCA ("Dissenting Shares") shall not be converted into the right to receive
the Merger Consideration as provided in Section 3.1, unless and until such
holder fails to perfect or withdraws or otherwise loses his or her right to
dissent and demand payment under the MBCA. If, after the Effective Time, any
such holder fails to perfect or withdraws or loses his or her right to demand
payment, then such Dissenting Shares shall thereupon be treated as if they had
been converted as of the Effective Time into the right to receive the Merger
Consideration, if any, to which such holder is entitled, without interest or
dividends thereon, and such Shares shall no longer be Dissenting Shares. The
Company shall give Parent prompt notice of any demands received by the Company
for payment of Shares, attempted withdrawals of such demands, and any other
instruments served pursuant to applicable Law that are received by the Company
with respect to shareholders' appraisal rights, and, prior to the Effective
Time, Parent shall have the right to direct all negotiations and proceedings
with respect to such demands. Prior to the Effective Time, the Company shall
not, except with the prior written consent of Parent, make any payment with
respect to, or settle or offer to settle, any such demands.
3.4 No Further Rights or Transfers. Except for the surrender of the
Certificates or Book-Entry Shares in exchange for the right to receive the
applicable Merger Consideration with respect to each Share or the perfection of
dissenters' rights with respect to the Dissenting Shares, at and after the
Effective Time, the holder of Shares shall cease to have any rights as a
shareholder of the Company.
8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
Except (i) as set forth in the Company SEC Reports filed with the SEC
between January 1, 2006 and the date hereof (excluding any disclosure set forth
in any risk factor section thereof or in any section relating to or containing
forward looking statements or any other disclosures set forth therein to the
extent they are generic, cautionary, predictive or forward-looking in nature,
whether or not appearing in such sections) to the extent the applicability of
such disclosure to any representation or warranty contained in this Article IV
is readily apparent on the face of such disclosure, (ii) as expressly
contemplated by this Agreement or (iii) as set forth in a schedule delivered to
Parent prior to the execution of this Agreement and dated as of the date hereof
(the "Company Disclosure Schedule"), the Company represents and warrants to
Parent, Holdings and Merger Sub as set forth below. Each exception set forth in
the Company Disclosure Schedule is identified by reference to, or has been
grouped under a heading referring to, a specific individual section or
subsection of this Agreement and relates only to such section or subsection;
provided, however, that the inclusion of any item referenced in one section or
subsection of the Company Disclosure Schedule shall be deemed to refer to any
other section or subsection of the Company Disclosure Schedule (and accordingly
to the applicable sections or subsections of this Agreement which contain
references to the Company Disclosure Schedule), whether or not an explicit
cross-reference appears, if the applicability of such item to the other section
or subsection is readily apparent on the face of the item disclosed.
4.1 Corporate Organization and Qualification. Each of the Company and
its Subsidiaries is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of its respective
jurisdiction of incorporation or organization and is qualified and in good
standing as a foreign corporation, partnership or other entity in each
jurisdiction where the properties owned, leased or operated or the business
conducted by it require such qualification, except where failure to so qualify
or be in good standing has not had, and would not reasonably be expected have,
individually or in the aggregate, a Company Material Adverse Effect. Each of the
Company and its Subsidiaries has all requisite power and authority (corporate or
otherwise) to own its properties and to carry on its business as it is now being
conducted except where failure to have such power and authority has not had, and
would not reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect. The Company has heretofore made available to
Parent complete and correct copies of its articles of incorporation and bylaws
and the articles of incorporation and bylaws (or similar documents) of each of
its Subsidiaries.
4.2 Capitalization.
(a) The authorized capital stock of the Company consists of
200,000,000 shares of Class A Common Stock, 10,000,000 shares of Class B Common
Stock and 90,000,000 shares of undesignated capital stock, of which 110,000
shares are designated as Class M Preferred Stock, 400,000 shares are designated
as Exchangeable Preferred Stock, 2,000,000 shares are designated as Series A
Junior Participating Preferred Shares, par value $.01, and reserved for issuance
upon exercise of the Class A Rights pursuant to the Class A Rights
9
Plan and 100,000 shares are designated as Series B Junior Participating
Preferred Shares, par value $.01, and reserved for issuance upon exercise of the
Class B Rights pursuant to the Class B Rights Plan. As of July 26, 2007, (i)
15,409,466 shares of Class A Common Stock were issued and outstanding; (ii)
237,120 shares of Class B Common Stock were issued and outstanding; (iii)
110,000 shares of Class M Preferred Stock were issued and outstanding; (iv)
255,558 shares of Exchangeable Preferred Stock were issued and outstanding; (v)
no shares of Series A Junior Participating Preferred Shares or Series B Junior
Participating Preferred Shares were issued or outstanding; and (vi) no shares of
capital stock of the Company were held in treasury. All of the outstanding
shares of capital stock of the Company have been duly authorized, validly issued
and are fully paid and are nonassessable and not subject to preemptive or
similar rights. None of the outstanding shares of capital stock of the Company
have been issued in violation of any U.S. federal or state securities Laws in
any material respect.
(b) Section 4.2(b) of the Company Disclosure Schedule sets forth
a complete and accurate list, as of July 26, 2007, of all outstanding Company
Equity Awards indicating with respect to each type of Company Equity Award then
outstanding, as applicable, the type of Company Equity Award granted, the number
and type of shares of the Company's capital stock subject to such Company Equity
Award, the exercise or purchase price (if any), date of grant and expiration
date thereof.
(c) Section 4.2(c) of the Company Disclosure Schedule sets forth
the name, jurisdiction of incorporation or organization and authorized and
outstanding capital of each Subsidiary of the Company. Except as set forth in
Section 4.2(c)-1 of the Company Disclosure Schedule, (i) other than with respect
to the Subsidiaries of the Company, the Company does not own, directly or
indirectly, any capital stock or other equity securities of any person or have
any direct or indirect equity or other similar ownership interest in any person
and (ii) all outstanding shares of capital stock of Subsidiaries of the Company
are owned by the Company or a direct or indirect wholly-owned Subsidiary of the
Company, free and clear of all liens, charges, encumbrances, claims and options
of any nature.
(d) Except (i) as set forth in Section 4.2(d) of the Company
Disclosure Schedule, (ii) as set forth in this Section 4.2, (iii) for the Class
A Rights and Class B Rights and (iv) the Class M Preferred Stock, there are (x)
not as of the date hereof any outstanding or authorized options, warrants,
calls, rights (including preemptive rights), commitments, convertible
securities, subscriptions or any other agreements of any character which the
Company or any of its Subsidiaries is a party to, or may be bound by, requiring
it to (A) issue, transfer, sell, purchase, redeem or acquire any shares of
capital stock of the Company or any of its Subsidiaries or Voting Debt or any
securities or rights convertible into, exchangeable or exercisable for, or
evidencing the right to subscribe for, any shares of capital stock of the
Company or any of its Subsidiaries or Voting Debt, (B) redeem or otherwise
acquire any such shares of capital stock or other equity or voting interests, or
(C) provide a material amount of funds to, or make any material investment (in
the form of a loan, capital contribution or otherwise) in, any Person, and (y)
no outstanding or authorized stock appreciation, phantom stock, profit
participation or other similar rights with respect to the Company or any of its
Subsidiaries.
10
(e) Except as set forth in Section 4.2(e) of the Company
Disclosure Schedule, no bonds, debentures, notes or other indebtedness of the
Company, including any of the foregoing having the right to vote on any matters
on which shareholders may vote ("Voting Debt"), are issued and outstanding.
(f) Except as set forth in Section 4.2(f) of the Company
Disclosure Schedule, there are no shareholder agreements, voting trusts,
proxies, or other similar Contracts or understandings, to which the Company or
any of its Subsidiaries is a party with respect to the voting of the capital
stock or other equity interests of the Company or any of its Subsidiaries.
4.3 Authority Relative to this Agreement.
(a) The Company has the requisite corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly and validly authorized by the
Board, no other corporate proceedings on the part of the Company are necessary
to authorize this Agreement or to consummate the transactions contemplated
hereby (other than, with respect to the Merger, obtaining the Company
Shareholder Approval in accordance with the MBCA) and the Company has obtained
the Class M Shareholder Approval in the written consent attached hereto as
Exhibit A. This Agreement has been duly and validly executed and delivered by
the Company and, assuming this Agreement constitutes the valid and binding
agreement of Parent, Holdings and Merger Sub, constitutes the valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except that such enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding in
equity or at law).
(b) The Board, at a duly called and held meeting, has unanimously
adopted resolutions (i) determining that the terms of the Merger and the other
transactions contemplated by this Agreement are fair to and in the best
interests of the Company and its stockholders, and declaring it advisable to
enter into this Agreement, (ii) approving the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, including the Merger, and (iii) recommending that the
stockholders of the Company approve the adoption of this Agreement (the "Company
Recommendation") and directing that such matter be submitted for consideration
of the stockholders of the Company at the Special Meeting.
4.4 Consents and Approvals; No Violation.
(a) Except as set forth in Section 4.4(a) of the Company
Disclosure Schedule, neither the execution, delivery and performance by the
Company of this Agreement, nor the consummation by the Company of the
transactions contemplated hereby will:
11
(i) conflict with or result in any breach of any provision of
the respective articles of incorporation or other equivalent organizational
documents and bylaws of the Company or any of its Subsidiaries;
(ii) require any consent, approval, authorization or permit
of, or filing with or notification to, any U.S. federal, state or local or
foreign governmental or regulatory agency, commission, court, body, entity
or authority or arbitral tribunal (each, a "Governmental Entity"), except
(A) in connection with the applicable requirements of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (B)
pursuant to the applicable requirements of the Exchange Act, (C) the filing
of the Articles of Merger pursuant to the MBCA and appropriate documents
related to foreign qualification with the relevant authorities of other
states in which the Company or any of its Subsidiaries is authorized to do
business, (D) in connection with any state or local tax which is
attributable to the beneficial ownership of the Company's or its
subsidiaries' real property, if any (collectively, the "Gains Taxes"), (E)
such filings and consents as may be required by the Federal Communications
Commission (the "FCC") or the rules and regulations promulgated by the FCC
(the "FCC Rules"), including the Communications Act of 1934, as amended
(the "Communications Act"), (F) such filings or consents as may be required
by local and state Governmental Entities pursuant to local or state Laws
regulating the telecommunications business (the "Utilities Laws"), (G) as
may be required by any applicable state securities or "blue sky" laws, (H)
where the failure to obtain such consent, approval, authorization or
permit, or to make such filing or notification, has not had, and would not
reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect, (I) such filings and consents as may be required
by the Vermont Insurance Commissioner in connection with the Company's
captive insurance entity, or (J) such filings, consents, approvals, orders,
registrations and declarations as may be required as a result of the status
or identity of Parent, Holdings and/or Merger Sub;
(iii) except for Contracts solely between or among the
Company and/or any of its Subsidiaries, result in a violation or breach of,
or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, amendment, cancellation
or acceleration, loss of any material benefit or any lien or other charge
or encumbrance) under any of the terms, conditions or provisions of any
note, license, concession, Contract, right or other instrument or
obligation to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries or any of their assets may be
bound or affected, except for such violations, breaches and defaults (or
give rise to any right of termination, amendment, cancellation or
acceleration, loss of any material benefit or any lien or other charge or
encumbrance) as to which requisite waivers or consents have been obtained
or which have not had, and would not reasonably be expected have,
individually or in the aggregate, a Company Material Adverse Effect; or
12
(iv) violate any material Order applicable to the Company or
any of its Significant Subsidiaries or to any of their respective assets
; provided that, for purposes of this Section 4.4(a), the definition of
"Company Material Adverse Effect" shall be deemed not to include clauses (A) or
(D) thereof.
(b) The affirmative vote of a majority of the Class A Common
Stock, the Class B Common Stock and the Class M Preferred Stock, voting together
as a single class, in favor of approval and adoption of this Agreement (the
"Company Shareholder Approval") and the consent of a majority of the Class M
Preferred Stock to this Agreement (the "Class M Shareholder Approval" and,
together with the Company Shareholder Approval, the "Requisite Shareholder
Approval") are the only votes or consents of the holders of any class or series
of the Company's or its Subsidiaries' securities necessary to approve or consent
to this Agreement, the Merger and the other transactions contemplated hereby.
4.5 SEC Reports; Financial Statements; No Undisclosed Liabilities.
(a) The Company has timely filed all material forms, reports,
statements and documents required to be filed by it with the Securities and
Exchange Commission (the "SEC") since January 1, 2005, pursuant to the federal
securities laws and the SEC rules and regulations thereunder (collectively, and
together with any amendments, restatements or supplements thereto and those
filed subsequent to the date of this Agreement, the "Company SEC Reports"), all
of which, as of their respective dates, or, if amended or restated prior to the
date of this Agreement, as of the date of the last such amendment or applicable
subsequent filing, complied, and each of the Company SEC documents filed
subsequent to the date hereof will comply, in all material respects with all
applicable requirements of the Securities Act or the Exchange Act, as
applicable, and the applicable rules and regulations promulgated thereunder.
None of the Company SEC Reports, including, without limitation, any financial
statements or schedules included therein, as of their respective dates, or, if
amended or restated prior to the date of this Agreement, as of the date of the
last such amendment or applicable subsequent filing, contained or will contain
any untrue statement of a material fact or omitted or will omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(b) The consolidated balance sheets and the related consolidated
statements of income, shareholders' equity and cash flows (including the related
notes thereto) of the Company included in the Company SEC Reports, as of their
respective dates, complied in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, were prepared in accordance with U.S. generally accepted accounting
principles applied on a basis consistent with prior periods (except as otherwise
noted therein or, in the case of unaudited statements, as permitted by Form 10-Q
of the SEC), were derived from the accounting books and records of the Company
and its Subsidiaries and present fairly, in all material respects, the
consolidated financial position of the Company and its consolidated Subsidiaries
as of their respective dates, and the consolidated results of their operations,
their shareholders' equity and their cash flows for the periods presented
therein
13
(subject, in the case of the unaudited interim financial statements, to
normal year-end adjustments).
(c) Except for (A) those liabilities that are fully reflected or
reserved for in the consolidated financial statements of the Company included in
its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2007,
as filed with the SEC prior to the date hereof, (B) liabilities incurred since
March 31, 2007 in the usual and ordinary course of business consistent with past
practice, (C) liabilities which have not had, and would not reasonably be
expected to have, individually or in the aggregate, a Company Material Adverse
Effect and (D) liabilities incurred pursuant to the transactions contemplated
hereby, the Company and its Subsidiaries do not have, and since March 31, 2007,
the Company and its Subsidiaries have not incurred (except as permitted by
Section 6.1), any material liabilities or obligations of any nature whatsoever
(whether accrued, absolute, matured, determined, contingent or otherwise and
whether or not required to be reflected in the Company's financial statements in
accordance with generally accepted accounting principles).
4.6 Disclosure Controls and Procedures.
(a) The Company and its Subsidiaries have designed and maintain a
system of internal control over financial reporting (as defined in Rules
13a-15(f) and 15d-15(f) of the Exchange Act) as required by the Exchange Act
sufficient to provide reasonable assurances regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. The
Company (i) has designed and maintains disclosure controls and procedures (as
defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) as required by the
Exchange Act to ensure that material information required to be disclosed by the
Company in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified
in the SEC's rules and forms and is accumulated and communicated to the
Company's management as appropriate to allow timely decisions regarding required
disclosure and to make the certifications required pursuant to Section 302 and
906 of the Xxxxxxxx-Xxxxx Act of 2002, and (ii) has disclosed, based on its most
recent evaluation of such disclosure controls and procedures prior to the date
hereof, to the Company's auditors and the audit committee of the Company's board
of directors (A) any significant deficiencies and material weaknesses in the
design or operation of internal control over financial reporting (as defined in
Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely
affect the Company's ability to record, process, summarize and report financial
information and (B) any fraud, whether or not material, that involves management
or other employees who have a significant role in the Company's internal control
over financial reporting. The Company's management has completed an assessment
of the effectiveness of the Company's internal controls over financial reporting
in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act of
2002 for the year ended December 31, 2006, and such assessment concluded that
such controls were effective.
(b) The Company is in compliance in all material respects with
the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the
applicable listing and governance rules and regulations of The Nasdaq Stock
Market, Inc. ("Nasdaq").
14
(c) The Company has made available to Parent any material
communication since December 31, 2005 through the date of this Agreement made by
the Company's management or auditors to the audit committee required or
contemplated by the applicable listing and governance rules and regulations of
Nasdaq, the audit committee's charter or professional standards of the Public
Company Accounting Oversight Board. Since December 31, 2005 through the date of
this Agreement, no material complaints from any source regarding accounting,
internal accounting controls or auditing matters, and no concerns from employees
regarding questionable accounting or auditing matters, have been received by the
Company. The Company has made available to Parent a summary of all material
complaints or concerns relating to other matters made since December 31, 2005
through the date of this Agreement through the Company's whistleblower hot-line
or equivalent system for receipt of employee concerns regarding possible
violations of Law. As of the date of this Agreement, no attorney representing
the Company or any of its Subsidiaries, whether or not employed by the Company
or any of its Subsidiaries, has reported evidence of a violation of securities
laws, breach of fiduciary duty or similar violation by the Company or any of its
officers, directors, employees or agents to the Company's chief legal officer,
audit committee (or other committee designated for the purpose) of the Board or
the Board pursuant to the rules adopted pursuant to Section 307 of the
Xxxxxxxx-Xxxxx Act of 2002 or any Company policy contemplating such reporting,
including in instances not required by those rules.
4.7 Absence of Certain Changes or Events. Except as set forth in
Section 4.7 of the Company Disclosure Schedule or as otherwise expressly
provided herein, since January 1, 2007, (i) the Company and its Subsidiaries
have conducted their respective businesses in the ordinary course consistent
with past practices, (ii) the Company and its Subsidiaries, in the aggregate,
have not suffered a Company Material Adverse Effect, and (iii) neither the
Company nor any of its Subsidiaries has taken any action that, if taken without
Parent's consent following the date hereof, would be prohibited by Sections
6.1(a), (b), (c), (d), (e), (f), (g), (j), (k), (n), (o) or (p), or enter into
any Contract to do any of the foregoing.
4.8 Litigation. Except as set forth in Section 4.8 of the Company
Disclosure Schedule, the Company SEC Reports filed prior to the date hereof
accurately disclose in all material respects as of the date hereof all material
actions, claims, suits, proceedings and governmental investigations pending or,
to the knowledge of the Company, threatened, against the Company or any of its
Subsidiaries or any of their respective properties, assets or rights.
4.9 Taxes (a) . Except as set forth in Section 4.9 of the Company
Disclosure Schedule:
(a) For all years for which the applicable statutory period of
limitation has not expired, the Company (and each of its Subsidiaries) has
timely and properly filed, and will through the date of the Closing timely and
properly file, all material federal, state, local and foreign tax returns
(including, without limitation, income, franchise, sales, payroll, employee
withholding and social security and unemployment) required to have been filed or
(in the case of returns not yet due but due on or before the date of the
Closing, taking into account any valid extension of the time for filing) that
will be required to be filed. The Company (and each of its Subsidiaries) has
paid all taxes shown on such tax returns and all other material taxes (including
15
interest and penalties) and withholding amounts owed by it. As of the date
hereof, no material unpaid tax deficiencies have been proposed or assessed
against the Company (or any of its Subsidiaries) in writing. The Company (and
each of its Subsidiaries) is not liable for any material taxes attributable to
any other person, whether by reason of being a member of another affiliated
group, being a party to a tax sharing agreement, as a transferee or successor,
or otherwise.
(b) Neither the Company nor any of its Subsidiaries has consented
to any extension of the statute of limitation with respect to any open federal,
state, local or foreign tax returns.
(c) There are no tax liens upon any property or assets of the
Company (or any of its Subsidiaries) except for liens for current taxes not yet
due and payable.
(d) There are no material audits, examinations, investigations or
other proceedings pending or threatened in writing in respect of taxes of the
Company or any of its Subsidiaries.
(e) No closing agreement pursuant to Section 7121 of the Code (or
any similar provision of state, local or foreign law) has been entered into by
or with respect to the Company or any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries will be
required to include any item of income in, or exclude any item of deduction
from, taxable income for any taxable period (or portion thereof) ending after
the Closing Date as a result of any change in method of accounting for a taxable
period ending on or prior to the Closing Date.
(g) Since April 30, 2005, the Company has not been a
"distributing corporation" or a "controlled corporation" within the meaning of
section 355(a)(1)(A) of the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder (the "Code").
(h) Neither the Company nor any of its Subsidiaries has
participated in a "reportable transaction" within the meaning of Treasury
Regulation section 1.6011-4(b), and no Company Plan is required to file a
disclosure under Code section 6033(a)(2).
4.10 Employee Benefit Plans; Labor Matters.
(a) Section 4.10(a) of the Company Disclosure Schedule sets forth
a list of each material deferred compensation, bonus or other incentive
compensation, stock purchase, stock option and other equity compensation plan,
program, Contract or arrangement; each material severance or termination pay,
medical, surgical, hospitalization, life insurance and other "welfare" plan,
fund or program (within the meaning of section 3(1) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")); each material
profit-sharing, stock bonus or other "pension" plan, fund or program (within the
meaning of section 3(2) of ERISA); each material employment, termination,
change-in-control, or severance Contract; and each other
16
material employee benefit plan, fund, program, Contract or arrangement, in each
case, that is or has been or has been sponsored, maintained or contributed to or
required to be contributed to by the Company or by any trade or business,
whether or not incorporated (an "ERISA Affiliate"), that together with the
Company would be deemed a "single employer" within the meaning of section
4001(b) of ERISA, or to which the Company or an ERISA Affiliate is party,
whether written or oral, for the benefit of any employee or former employee of
the Company or any of its Subsidiaries (the "Company Plans"). The Company has
made available to Parent a true and complete copy of (i) each Company Plan and
all amendments thereto (or in the case of any Company Plan that is not in
writing, a written description thereof), (ii) each trust, insurance or
administrative agreement relating to each such Company Plan; (iii) the most
recent summary plan description or other written explanation of each Company
Plan provided to participants; (iv) for each Company Plan, the most recent
annual report (Form 5500 and all applicable schedules and financial statements)
filed or required to be filed with the U.S. Department of Labor; and (v) the
most recent determination letter or opinion letter, if any, issued by the U.S.
Internal Revenue Service with respect to any Company Plan intended to be
qualified under Section 401(a) of the Code.
(b) At no time has the Company or any ERISA Affiliate maintained,
established, sponsored, participated in, or contributed to, any (i) Company Plan
subject to Title IV of ERISA, (ii) multiemployer plan (as defined in section
3(37) of ERISA), or (iii) "multiple employer plan" as defined in ERISA or the
Code. Neither the Company nor any ERISA Affiliate has engaged in, or is a
successor or affiliate of any entity that has engaged in, a transaction that is
described in Section 4609 or Section 4212(c) of ERISA.
(c) Each Company Plan is now and has been operated in material
compliance with the requirements of all applicable Laws, including ERISA and the
Code, and its terms.
(d) To the knowledge of the Company, each Company Plan intended
to qualify under section 401(a) of the Code and each trust intended to qualify
under section 501(a) of the Code is so qualified.
(e) No Company Plan subject to ERISA holds any "employer
security" (within the meaning of Section 407(d)(1) of ERISA) or "employer real
property" (within the meaning of Section 407(d)(2) of ERISA).
(f) Each Company Plan (and each related trust, insurance
contract, or fund) has been funded in accordance with its terms and in
compliance with the applicable provisions of all applicable Laws, including
ERISA and the Code. All contributions (including all employer contributions and
employee contributions and salary reduction contributions) that are due have
been made to each such Company Plan and all premiums or other payments which are
due with respect to any Company Plan have been paid.
(g) None of the Company, any Subsidiary of the Company, any ERISA
Affiliate, any Company Plan, any trust created thereunder, or any trustee or
administrator thereof, has engaged in any transaction as a result of which the
Company or any Subsidiary of
17
the Company could be subject to any material liability pursuant to Section 409
of ERISA or to either civil penalty assessed pursuant to Section 502(i) of ERISA
or a tax imposed pursuant to Section 4975 of the Code.
(h) There are no pending or threatened claims related to any
Company Plan by any Person covered thereby (other than ordinary claims for
benefits submitted by participants or beneficiaries). Except as set forth in
Section 4.10(h) of the Company Disclosure Schedule, there are no pending or
threatened claims, audits, or investigations of any Company Plan by any
Governmental Entity or any voluntary compliance program submissions filings in
respect of any Company Plan.
(i) None of the Company Plans that provide life insurance or
health benefits provide benefits to retirees or other former employees other
than benefit continuation rights under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended or any similar applicable Law.
(j) Neither the Company nor any of its Subsidiaries is a party to
any collective bargaining or other labor union contracts as of the date hereof.
As of the date hereof, there is no pending or, to the knowledge of the Company,
threatened labor dispute, strike or work stoppage against the Company or any of
its Subsidiaries which would interfere with the respective business activities
of the Company or its Subsidiaries.
(k) Except for acceleration of vesting of Company Equity Awards
or as set forth in Section 4.10(k) of the Company Disclosure Schedule, no
current or former employee of the Company or its Subsidiaries will be entitled
to additional benefits, increase of a benefit amount, the payment of a
contingent benefit, or the acceleration of the payment or vesting of a benefit
by reason of the execution of this Agreement or the consummation of the
transactions contemplated by this Agreement. Except as set forth in Section
4.10(k) of the Company Disclosure Schedule, neither the Company nor any of the
Subsidiaries is a party to a Contract or Company Plan covering any employee or
former employee that, individually or collectively, provides for payment by the
Company or the Subsidiaries of any amount that would be subject to an excise tax
under section 4999 of the Code as a result of the transactions contemplated by
this Agreement or that "grosses up" any additional income tax excise tax that
may be payable under section 409A or 4999 of the Code and/or any related income
or other taxes resulting from the payment of such additional income or excise
tax.
4.11 Environmental Laws and Regulations. Except as set forth in
Section 4.11 of the Company Disclosure Schedule, (a) the Company and each of its
Subsidiaries is in compliance with all applicable federal, state, local and
foreign laws and regulations relating to pollution or protection of human health
or the environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata) (collectively, "Environmental
Laws"), except for non-compliance that has not had, and would not reasonably be
expected have, individually or in the aggregate, a Company Material Adverse
Effect, (b) and neither the Company nor any of its Subsidiaries has received
written notice of, or, to the knowledge of the Company, is the subject of, any
action, cause of action, claim, investigation, demand or notice by any person or
entity alleging liability under or non-compliance with any
18
Environmental Law which would, individually or in the aggregate, have a Company
Material Adverse Effect, and (c) as of the date hereof, neither the Company nor
any of its Subsidiaries has received written notice of, or, to the knowledge of
the Company, is the subject of, any action, cause of action, claim,
investigation, demand or notice by any person or entity alleging liability or
responsibility for the investigation or remediation of contamination of surface
water, ground water, land surface or subsurface strata pursuant to (1) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, or any other similar state "Superfund" or "Superlien" law or (2) the
Resource Conservation and Recovery Act of 1976, as amended, and its implementing
regulations or any similar state law or regulations governing underground
storage tanks.
4.12 Intangible Property. Except as set forth in Section 4.12 of the
Company Disclosure Schedule, the Company or a wholly-owned Subsidiary of the
Company is the owner of, or a licensee under a valid license for, all items of
intangible property which are material to the business of the Company and its
Subsidiaries as currently conducted, taken as a whole, including, without
limitation, trade names, unregistered trademarks and service marks, brand names,
patents and copyrights. As of the date hereof, there are no claims pending or,
to the knowledge of the Company, threatened, that the Company or any Subsidiary
is in violation of any such intangible property rights of any third party which
would, individually or in the aggregate, have a Company Material Adverse Effect.
4.13 Compliance with Laws and Orders; Permits.
(a) Except (i) as set forth in Section 4.13(a)-1 of the Company
Disclosure Schedule and (ii) with respect to the matters described in Section
4.5(c), Section 4.9, Section 4.10 and Section 4.11, neither the Company nor any
Subsidiary is, or since December 31, 2004 has been, in violation of or in
default under any law, statute, rule or regulation having the effect of law of
the U.S. or any state, county, city or other political subdivision thereof or of
any Governmental Entity ("Laws") or writ, judgment, decree, injunction or
similar order of any Governmental Entity, in each case, whether preliminary or
final (an "Order"), applicable to the Company or any Subsidiary or any of their
respective assets and properties the effect of which would, individually or in
the aggregate, have a Company Material Adverse Effect. Section 4.13(a)-2 of the
Company Disclosure Schedule lists each material Order applicable to the Company.
(b) The Company and its Subsidiaries are in possession of all
material franchises, grants, authorizations, licenses, permits, easements,
variances, clearances, exceptions, consents, certificates, approvals and orders
of any Governmental Entity ("Permits") necessary for the Company and its
Subsidiaries to own, lease and operate their respective properties and assets
and to carry on their respective businesses (including the business of the
Company's captive insurance entity) as they are now being conducted (the
"Company Permits"). Except as has not had, and would not reasonably be expected
have, individually or in the aggregate, a Company Material Adverse Effect, (i)
all Company Permits are in full force and effect and no suspension or
cancellation of any of the Company Permits is pending or, to the knowledge of
the Company, threatened and (ii) the Company and its Subsidiaries are not in
default or violation of the terms of the Company Permits.
19
(c) Section 4.13(c) of the Company Disclosure Schedule sets forth
a true and complete list, as of the date of this Agreement, of (A) all Permits
issued or granted to the Company or any of its Subsidiaries by the FCC ("FCC
Licenses"), and all Permits issued or granted to the Company or any of its
Subsidiaries by public utility commissions or other state agencies regulating
telecommunications or related businesses ("State Licenses" and, collectively
with the FCC Licenses, the "Communications Licenses"); (B) all pending
applications for Communications Licenses that would be Communications Licenses
if issued or granted; and (C) all pending applications by the Company or any of
its Subsidiaries for modification, extension or renewal of any Communications
License. To the knowledge of the Company, there is not pending or threatened
before the FCC, the Federal Aviation Administration (the "FAA") or any other
Governmental Entity any proceeding, notice of violation, order of forfeiture or
complaint or investigation against the Company or any of its Subsidiaries
relating to any of the Company Permits. The FCC actions granting all FCC
Licenses, together with all underlying construction permits, have not been
reversed, stayed, enjoined, annulled or suspended, and there is not pending or,
to the knowledge of the Company, threatened any application, petition, objection
or other pleading with the FCC, the FAA or any other Governmental Entity which
challenges or questions the validity of or any rights of the holder under any
such Permit.
(d) Section 4.13(d) of the Company Disclosure Schedule lists all
E-911 Phase I or Phase II deployment requests pursuant to 47 C.F.R. ss.20.18 of
the FCC's rules ("Deployment Requests") that have been received by the Company
as of May 1, 2007 and describes the status of each Deployment Request listed
thereon.
(e) No amounts (including installment payments consisting of
principal and/or interest or late payment fees) are due to the FCC or the U.S.
Department of the Treasury in respect of any FCC License, nor will the
consummation of the transactions contemplated hereby cause the FCC to require
the Company or any of its affiliates to refund to the FCC all or any portion of
any bidding credit which the Company or any of its past or current affiliates
may have received from the FCC in connection with any FCC License.
(f) Except as set forth in Section 4.13(f) of the Company
Disclosure Schedule, the Company does not hold any Permit to provide local
exchange services or interexchange services.
4.14 Contracts.
(a) Except for Contracts with Parent or any of its controlled
affiliates, neither the Company nor any of its Subsidiaries is, nor, to the
knowledge of the Company, is any other party, in breach of or default under
(with or without notice or lapse of time or both) the terms of any Company
Material Contract to which it is a party, except for such defaults which have
not had, and would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect; and, to the knowledge of the
Company, there has not occurred any event that, with the lapse of time or giving
of notice or both, would constitute such a breach or default other than such
events which have not had, and would not reasonably be expected have,
individually or in the aggregate, a Company Material Adverse Effect.
20
(b) Except for Contracts between or among the Company and/or any
of its wholly-owned Subsidiaries and except for Contracts with Parent or any of
its controlled affiliates, Section 4.14(b) of the Company Disclosure Schedule
sets forth a list, organized under captions representing each subsection set
forth below, as of the date hereof of:
(i) since January 1, 2006, all Contracts or
currently-operative letters of intent regarding the acquisition or
disposition of a material Person or business, whether in the form of an
asset purchase, merger, consolidation or otherwise (including any such
Contract or letter of intent that has closed but under which one or more of
the parties has executory indemnification, earn-out or other liabilities or
rights) to which the Company or any of its Subsidiaries is a party;
(ii) all credit agreements, indentures and other Contracts
related to any material indebtedness for borrowed money of the Company or
any of its Subsidiaries;
(iii) all material joint venture, partnership or other
similar material Contracts to which the Company or any of its Subsidiaries
is a party;
(iv) all material office, warehouse, call center, switching
facility or other lease agreements to which the Company or any of its
Subsidiaries is a party;
(v) all customer and other Contracts providing for the
purchase of materials, supplies, goods, services, equipment or other assets
which involve, individually or together with related Contracts, annual
consideration in excess of $1,000,000, or aggregate consideration in excess
of $5,000,000, which are not cancelable by the Company on 90 days' or less
notice without premium or penalty;
(vi) all Contracts under which the Company has granted any
person registration rights (including demand and piggy-back registration
rights) that have not been fulfilled;
(vii) all Contracts purporting to restrict or prohibit the
Company or any of its Subsidiaries from engaging or competing with any
Person or in any business;
(viii) all Contracts that purport to bind any non-controlled
affiliate of the Company or of the Surviving Corporation that are not
terminable on 90 days' or less notice without penalty;
(ix) all interconnection or similar Contracts providing for
annual payments of $250,000 or more;
21
(x) all agency, dealer, reseller or other similar Contracts
(except for those that are terminable, without penalty on 60 days or less
notice) and all Contracts establishing exclusive dealing arrangements;
(xi) all Contracts that contain any commitment to (w) provide
wireless services coverage in a particular geographic area or (x) build out
tower sites in a particular geographic area, or that require (A) payment
for a specified number of minutes or (B) the acquisition of video content
to be placed on or accessed over a mobile wireless device or otherwise;
(xii) all Contracts pursuant to which the Company or any of
its Subsidiaries could be required to purchase or sell, as applicable, (i)
any wireless spectrum or (ii) any equity interests or other assets of any
Person that have a fair market value or purchase price of at least
$5,000,000; and
(xiii) (i) any GSM roaming Contract that cannot be terminated
on 180 days or less notice and (ii) any CDMA roaming Contract that cannot
be terminated on 90 days or less notice.
All items of the type described in this Section 4.14(b) together with (A) each
"material contract" (as such term is defined in Item 601(b)(10) of Regulation
S-K promulgated by the SEC) set forth as an exhibit to a Company SEC Report
filed with the SEC prior to the date hereof and (B) material guarantees of any
obligations (other than a guarantee by the Company of a Subsidiary's debts or a
guarantee by a Subsidiary of the Company's debts or another Subsidiary's debts)
are collectively referred to as the "Company Material Contracts" and is each a
"Company Material Contract".
4.15 Proxy Statement. None of the information (a) supplied or to be
supplied by the Company for inclusion in the Proxy Statement or (b) incorporated
by reference in the Proxy Statement will, on the date mailed to the shareholders
of the Company, at the time of the Special Meeting, or at the time of any
amendments or supplements to the Proxy Statement, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading except, in each case,
that no representation or warranty is made by the Company with respect to
information supplied in writing by or on behalf of Parent, Holdings or Merger
Sub for inclusion or incorporation by reference therein. The Proxy Statement
will comply as to form in all material respects with all applicable Laws.
4.16 Company Rights Plans. The Company has amended, and the Company
and the Board have taken all necessary action to amend, the Class A Rights Plan
and the Class B Rights Plan (together, the "Rights Agreements") to render the
Class A Rights and the Class B Rights (together, the "Rights") inapplicable to
the execution and delivery of this Agreement or the consummation of the Merger
and to ensure that none of the execution or delivery of this Agreement or the
consummation of the Merger will result in (a) the occurrence of an event
described in Section 3(a) of the Rights Agreements, (b) a Distribution Date (as
defined in the Class A Rights Plan or the Class B Rights Plan) or (c) the Rights
becoming evidenced by, and
22
transferable pursuant to, certificates separate from the certificates
representing the Company Common Stock. No Distribution Date has occurred, and
the Rights have not become evidenced by, or transferable pursuant to,
certificates separate from the certificates representing the Company Common
Stock. The Company and the Board have taken all actions necessary to make the
Class A Rights and Class B Rights inapplicable to the Merger and the
transactions contemplated hereby. A true and correct copy of each such
amendments to the Rights Agreements and the action of the Board approving such
amendments has been provided to Parent on or prior to the date hereof, and such
amendments remain in full force and effect.
4.17 Takeover Statutes. The Board and/or a committee of disinterested
directors thereof pursuant to section 302A.673, as applicable, have duly and
validly taken all corporate action to render the provisions of section 302A.673
of the MBCA restricting business combinations with "interested shareholders"
inapplicable to the Merger and the transactions contemplated hereby. Section
302A.671 of the MBCA applicable to "control share acquisitions" will not
prohibit the authorization, execution, delivery or performance of this Agreement
or consummation of the Merger or the transactions contemplated hereby. The
authorization, execution, delivery or performance of this Agreement or the
consummation of the Merger or the transactions contemplated hereby does not, and
any formation of a "group" for purposes of section 13(d)(3) of the Exchange Act
in connection with this Agreement will not, result in a "control share
acquisition" as defined in section 302A.011 of the MBCA or a "takeover offer"
within the meaning of Section 80B.subd.8 of Minnesota Statues. Assuming the
accuracy of the representation and warranty set forth in Section 5.8, no "fair
price", "moratorium", "control share acquisition", "takeover offer" or other
similar anti-takeover statute or regulation (each a "Takeover Statute"), is
applicable to the Company, shares of the Company's capital stock, the Merger or
the transactions contemplated hereby. The Company makes no representation or
warranty concerning the applicability of any Takeover Statute other than those
Takeover Statutes existing under the MBCA and Section 80B.
4.18 Brokers and Finders. Except for the fees and expenses payable to
Bear, Xxxxxxx & Co. Inc. and Xxxxxxxxxx Capital Corporation, which fees and
expenses are reflected in their respective agreements with the Company, true and
complete copies of which have been made available to Parent, the Company has not
employed any investment banker, broker, finder, consultant or intermediary in
connection with the transactions contemplated hereby which would be entitled to
any investment banking, brokerage, finder's or similar fee or commission in
connection with this Agreement or the transactions contemplated hereby.
4.19 Opinion of Financial Advisor. The Company has received the
opinion of Bear, Xxxxxxx & Co. Inc., dated as of the date hereof, to the effect
that, as of such date, the consideration to be received by the holders of
Company Common Stock pursuant to the Merger is fair to the holders of Class A
Common Stock and to the holders of Class B Common Stock from a financial point
of view. A true and complete executed copy of such opinion has been delivered to
Parent.
4.20 Interested Party Transactions. Except for employment agreements
set forth in Section 4.20 of the Company Disclosure Schedule or filed or
incorporated by reference as an exhibit to a Company SEC Report filed prior to
the date hereof or Company Benefit Plans,
23
there are no Contracts under which there are any existing or future liabilities
between the Company or any of its Subsidiaries, on the one hand, and, on the
other hand, any (i) present officer or director of either the Company or any of
its Subsidiaries or any person that has served as such an officer or director
within the past two years or any of such officer's or director's immediate
family members, other than regular directors' fees, (ii) record or beneficial
owner of more than 5% of any class of the Company's capital stock as of the date
hereof, or (iii) to the knowledge of the Company, any affiliate of any such
officer, director or owner (other than the Company or any of its Subsidiaries).
4.21 No Other Representations and Warranties. Except for the
representations and warranties contained in this ARTICLE IV and in the
certificate delivered pursuant to Section 7.3(c), neither the Company or any of
its Subsidiaries nor any other person acting on behalf of the Company or any
such Subsidiary makes any representation or warranty, express or implied, in
connection with the transactions contemplated hereby.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT, HOLDINGS AND MERGER SUB
-----------------------------------------------------------------
Except as expressly contemplated by this Agreement, each of Parent,
Holdings and Merger Sub (in the case of Merger Sub, from and after its
incorporation as contemplated by Section 6.12) represents and warrants to the
Company as set forth below.
5.1 Corporate Organization and Qualification. Each of Parent, Holdings
and Merger Sub is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of its respective
jurisdiction of incorporation or organization and is qualified and in good
standing as a foreign corporation, partnership or other entity in each
jurisdiction where the properties owned, leased or operated or the business
conducted by it require such qualification, except where failure to so qualify
or be in good standing has not had, and would not reasonably be expected to
have, individually or in the aggregate, a Parent Material Adverse Effect. Each
of Parent, Holdings and Merger Sub has all requisite power and authority
(corporate or otherwise) to own its properties and to carry on its business as
it is now being conducted except where failure to have such power and authority
has not had, and would not reasonably be expected to have, individually or in
the aggregate, a Parent Material Adverse Effect. Parent has heretofore made
available to the Company complete and correct copies of the articles of
incorporation or other equivalent organizational documents and bylaws of Parent,
Holdings and Merger Sub.
5.2 Authority Relative to this Agreement.
(a) Each of Parent, Holdings and Merger Sub has the requisite
corporate or other power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. This Agreement and the
consummation by each of Parent, Holdings and Merger Sub of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action of Parent, Holdings and Merger Sub and no other proceedings
24
on the part of Parent, Holdings or Merger Sub are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by each of Parent, Holdings and
Merger Sub and, assuming this Agreement constitutes the valid and binding
agreement of the Company, constitutes the valid and binding agreement of each of
Parent, Holdings and Merger Sub, enforceable against each of Parent, Holdings
and Merger Sub in accordance with its terms, except that such enforceability may
be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(b) Each of Parent, Holdings and Merger Sub has duly and validly
approved and taken all corporate or other action required to be taken by Parent,
Holdings or Merger Sub for the consummation of the Merger and the transactions
contemplated hereby.
5.3 Consents and Approvals; No Violation. Neither the execution,
delivery and performance by Parent, Holdings or Merger Sub of this Agreement,
nor the consummation by Parent, Holdings or Merger Sub of the transactions
contemplated hereby, will:
(a) conflict with or result in any breach of any provision of the
respective articles of incorporation or other equivalent organizational
documents and bylaws of Parent, Holdings or Merger Sub;
(b) require any consent, approval, authorization or permit of, or
filing with or notification to, a Governmental Entity, except (A) in connection
with the applicable requirements of the HSR Act, (B) pursuant to the applicable
requirements of the Exchange Act, (C) the filing of the Articles of Merger
pursuant to the MBCA and appropriate documents related to foreign qualification
with the relevant authorities of other states in which Parent, Holdings or
Merger Sub is authorized to do business, (D) in connection with any Gains Taxes,
(E) such filings and consents as may be required by the FCC or FCC Rules,
including the Communications Act, (F) such filings or consents as may be
required by local and state Governmental Entities pursuant to any Utilities
Laws, (G) as may be required by any applicable state securities or "blue sky"
laws, (H) where the failure to obtain such consent, approval, authorization or
permit, or to make such filing or notification, would not, individually or in
the aggregate, have a Parent Material Adverse Effect or (I) such filings,
consents, approvals, orders, registrations and declarations as may be required
as a result of the status or identity of the Company;
(c) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration, loss of any
material benefit or any lien or other charge or encumbrance) under any of the
terms, conditions or provisions of any note, license, concession, Contract,
right or other instrument or obligation to which Parent or any of its
Subsidiaries is a party or by which Parent or any of its Subsidiaries or any of
their assets may be bound or affected, except for such violations, breaches and
defaults (or give rise to any right of termination, amendment, cancellation or
acceleration, loss of any material benefit or any lien or
25
other charge or encumbrance) which have not had, and would not reasonably be
expected have, individually or in the aggregate, a Parent Material Adverse
Effect; or
(d) assuming the consents, approvals, authorizations or permits
and filings or notifications referred to in this Section 5.3 are duly and timely
obtained or made, violate any Order applicable to Parent, Holdings or Merger Sub
or to any of their respective assets, except for violations which would not,
individually or in the aggregate, have a Parent Material Adverse Effect.
5.4 Available Funds. Immediately prior to and at the Effective Time,
Parent, Holdings and Merger Sub will have available all of the funds necessary
to consummate the Merger and the other transactions contemplated by this
Agreement.
5.5 Proxy Statement. None of the information supplied or to be
supplied in writing by Parent, Holdings or Merger Sub for inclusion or
incorporation by reference in the Proxy Statement will, on the date mailed to
the shareholders of the Company, at the time of the Special Meeting, and at the
time of any amendments thereof or supplements thereto, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading except, in each
case, that no representation or warranty is made by Parent, Holdings or Merger
Sub with respect to statements incorporated by reference therein or made based
on information supplied by or on behalf of the Company for inclusion or
incorporation by reference therein.
5.6 Interim Operations of Merger Sub. Merger Sub was formed solely
for the purpose of engaging in the transactions contemplated hereby and has not
engaged in any business activities or conducted any operations other than in
connection with the transactions contemplated hereby.
5.7 Brokers and Finders. Except for the fees and expenses payable to
JPMorgan Chase & Co., which fees and expenses are reflected in its agreement
with Parent, Parent, Holdings and Merger Sub have not employed any investment
banker, broker, finder, consultant or intermediary in connection with the
transactions contemplated hereby which would be entitled to any investment
banking, brokerage, finder's or similar fee or commission in connection with
this Agreement or the transactions contemplated hereby.
5.8 Share Ownership. During the period from January 1, 2003, to the
date hereof, neither Parent nor any of its controlled affiliates has
beneficially owned, directly or indirectly, any shares of capital stock of the
Company. Assuming the accuracy of the representation and warranty set forth in
Section 4.17, neither Parent, Holdings nor Merger Sub is, nor at any time during
the last four years has it been, an "interested shareholder" of the Company as
defined in section 302A.011 of the MBCA.
5.9 No Other Representations and Warranties. Except for the
representations and warranties contained in this ARTICLE V and in the
certificate delivered pursuant to Section 7.2(c), neither Parent, Holdings,
Merger Sub or any other Subsidiaries of Parent nor any other
26
person acting on behalf of Parent, Holdings, Merger Sub or any such Subsidiary
makes any representation or warranty, express or implied, in connection with the
transactions contemplated by this Agreement.
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
-----------------------------------
6.1 Conduct of Business of the Company. During the period from the
date hereof to the Effective Time or the date, if any, on which this Agreement
is earlier terminated pursuant to ARTICLE VIII (except (w) as required by Law,
(x) with the prior written consent of Parent, which consent shall not be
unreasonably withheld, delayed or conditioned, (y) as expressly permitted by
this Agreement or (z) as set forth in Section 6.1 of the Company Disclosure
Schedule), the business of the Company and its Subsidiaries shall be conducted
only in the ordinary and usual course of business in all material respects
consistent with past practice and, to the extent consistent therewith, the
Company shall, and shall cause its Subsidiaries to, use reasonable best efforts
to (i) preserve intact their current business organization and (ii) preserve
their relationships with customers, suppliers, employees and others having
business dealings with them. Without limiting the generality of the foregoing,
except (w) as required by Law, (x) with the prior written consent of Parent,
which consent shall not be unreasonably withheld, delayed or conditioned, (y) as
expressly permitted by this Agreement or (z) as set forth in Section 6.1 of the
Company Disclosure Schedule, prior to the Effective Time, the Company will not,
and will cause each of its Subsidiaries not to:
(a) except for shares to be issued or delivered pursuant to
Company Equity Awards issued prior to the date hereof, in connection with the
ESPP or as may be required under employment agreements executed prior to the
date hereof, in each case that were made available to Parent, or as required by
the Company's articles of incorporation (including any certificates of
designation of any of the Company's preferred stock) upon the conversion of any
shares of the Company's outstanding preferred stock into Company Common Stock,
issue, deliver, sell, dispose of, grant, pledge or otherwise encumber, or
authorize or propose the issuance, sale, disposition, grant, or pledge or other
encumbrance of (i) any additional shares of capital stock of any class or other
ownership or voting interests, or any securities or rights convertible into,
exchangeable for, or evidencing the right to subscribe for any shares of capital
stock or other ownership or voting interests, or any rights, warrants, options,
calls, commitments or any other Contracts of any character to purchase or
acquire any shares of capital stock or any securities or rights convertible
into, exchangeable for, or evidencing the right to subscribe for, any shares of
capital stock or other ownership or voting interests, or (ii) any other
securities in respect of, in lieu of, or in substitution for, shares of capital
stock or other ownership or voting interests of the Company or any of its
Subsidiaries outstanding on the date hereof;
(b) except pursuant to the Company Stock Plans in the ordinary
course of business consistent with past practice, redeem, purchase or otherwise
acquire, or propose to redeem, purchase or otherwise acquire, any of its
outstanding capital stock;
27
(c) split, combine, subdivide or reclassify any shares of capital
stock of the Company or declare, set aside for payment or pay any dividend, or
make any other actual, constructive or deemed distribution in respect of any
shares of capital stock of the Company or otherwise make any payments to
shareholders in their capacity as such, other than the declaration and payment
of mandatory dividends on the Exchangeable Preferred Stock or the Class M
Preferred Stock in accordance with the terms of the Exchangeable Preferred
Certificate of Designation or the Class M Preferred Certificate of Designation,
respectively, and except for dividends by a wholly-owned Subsidiary of the
Company;
(d) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other reorganization
of the Company or any of its Subsidiaries (other than the Merger);
(e) adopt any amendments to its articles of incorporation or
amended and restated bylaws, alter through merger, liquidation, reorganization,
restructuring or in any other fashion the corporate structure or ownership of
any Subsidiary, or enter into or materially amend any agreement or engage in any
transaction with any of its officers or directors (or their immediate family
members) or any holder of 5% or more of any class of the Company's capital
stock;
(f) make any material acquisition, by means of merger,
consolidation or otherwise, or lease, license, transfer, exchange or swap,
mortgage or otherwise encumber (including through securitizations), or subject
to any lien or otherwise dispose of, any material portion of its properties,
assets or rights, except for transactions among the Company and its Subsidiaries
or among the Company's Subsidiaries; or;
(g) other than in the ordinary course of business consistent with
past practice and except for borrowings under the Company's revolving credit
facility from time to time, incur, assume or otherwise become liable for, or
prepay, any indebtedness for borrowed money (directly, contingently or
otherwise) or guarantee any such indebtedness or make any loans, advances or
capital contributions to, or investments in, any other person, other than to the
Company or any wholly-owned Subsidiary of the Company;
(h) other than in the ordinary course of business consistent with
past practice, enter into any Company Material Contract;
(i) terminate or materially amend, or otherwise waive, release or
assign any material rights under, any Company Material Contract;
(j) change any of the accounting methods used by the Company
unless required by generally accepted accounting principles or applicable Law;
(k) materially change any method of tax accounting, enter into
any closing agreement with respect to any material tax liability, settle or
compromise any material tax liability, make, revoke or change any material tax
election, agree to any adjustment of any material tax attribute, file or
surrender any claim for a material refund of taxes, execute or
28
consent to any waivers extending the statutory period of limitations with
respect to the collection or assessment of material tax liabilities, file any
material amended tax return or obtain any material tax ruling;
(l) except as contemplated by the Company Plans listed in Section
4.10(a) of the Company Disclosure Schedule in effect as of the date hereof, or
as otherwise required by Law, (i) modify the compensation or other benefits
payable or to become payable to directors or officers or, except in the ordinary
course of business consistent with past practices, any other employee of the
Company or any of its Subsidiaries, (ii) enter into any severance or termination
arrangement with, or pay any severance or termination benefit to, any employee
except in the ordinary course of business consistent with past practice, (iii)
establish, adopt, or enter into any collective bargaining agreement, (iv) except
in connection with ordinary course annual renewals, modify the benefits under,
establish, amend, terminate, or adopt any Company Plan (or any plan, agreement
or arrangement that would be a Company Plan once so established or adopted) or
(v) grant or agree to pay any retention award, bonus or other benefit to any
employee of the Company in connection with any sale of the Company;
(m) make or commit to any capital expenditures (including
expenditures to acquire wireless spectrum), other than in the ordinary course of
business and, in any event, (i) during the year 2007, not in excess of 103% of
the aggregate amount contemplated by the Company's capital expenditure budget
for the year 2007, a copy of which is set forth in Section 6.1(m) of the Company
Disclosure Schedule, reduced for the period through December 31, 2007 for all
amounts spent or committed to prior to the date of this Agreement, and (ii)
during the year 2008, not in excess of $73 million in the aggregate and not more
than $25 million in any fiscal quarter;
(n) assign, transfer, cancel, fail to renew or fail to extend any
FCC License or material State License, except for cancellations or modifications
of FCC Licenses for microwave facilities in the ordinary course of business
consistent with past practice, cancellations or modifications of FCC Licenses
for microwave facilities in connection with negotiated relocation agreements in
accordance with Sections 27.1111, et seq. and Sections 101.69, et seq. of the
FCC Rules or in connection with the discontinuation of the Company's paging
operations;
(o) waive, release, assign, settle or compromise any claim,
action or proceeding, other than waivers, releases, assignments, settlements or
compromises that involve only the payment of monetary damages not in excess of
$1 million in the aggregate, or otherwise pay, discharge or satisfy any claims,
liabilities or obligations in excess of such amount in the aggregate, in each
case, other than in the ordinary course of business consistent with past
practice;
(p) enter into any "non-compete" or similar agreement or any
Contracts establishing exclusive dealing arrangements that would restrict the
businesses of the Surviving Corporation or its affiliates following the
Effective Time, or any Contract purporting to bind non-controlled affiliates of
the Company or of the Surviving Corporation;
29
(q) take any action (other than lobbying activity) that may
impose new (unless they are less burdensome than those in place at the time) or
additional material regulatory requirements on the Surviving Corporation or any
of its affiliates; (r) authorize, recommend, propose or announce an intention to
do any of the foregoing; or
(s) enter into any Contract to do any of the foregoing.
6.2 Proxy Statement.
(a) As promptly as reasonably practicable (but in any event
within 15 days) following the date hereof, the Company shall prepare and file
with the SEC the preliminary proxy statement (such proxy statement, and any
amendments or supplements thereto, the "Proxy Statement") and all other
materials required by Schedule 14A of the rules and regulations under the
Exchange Act relating to the matters to be submitted to the shareholders of the
Company at the Special Meeting.
(b) The Company will (i) respond as promptly as reasonably
practicable to any comments received from the SEC with respect to such filings
and will provide copies of such comments to Parent promptly upon receipt, (ii)
as promptly as reasonably practicable prepare and file any amendments or
supplements necessary to be filed in response to any SEC comments or as required
by Law, (iii) use its reasonable best efforts to have cleared by the SEC and
will thereafter mail to its stockholders as promptly as reasonably practicable
(and in any event within 5 days) the Proxy Statement and all other customary
proxy or other materials for meetings such as the Special Meeting, (iv) to the
extent required by applicable Law, as promptly as reasonably practicable
prepare, file and distribute to the stockholders of the Company any supplement
or amendment to the Proxy Statement if any event shall occur which requires such
action at any time prior to the Special Meeting, and (v) otherwise use
reasonable best efforts to comply with all requirements of Law and Nasdaq
applicable to the Special Meeting and the Merger. The Company will provide
Parent a reasonable opportunity to review and comment upon the Proxy Statement,
or any amendments or supplements thereto, prior to filing the same with the SEC.
(c) The Company agrees that the Proxy Statement shall include as
an attachment, appendix or otherwise the opinion of the financial advisor of the
Company referred to in Section 4.19.
6.3 Special Meeting; Recommendation.
(a) The Company shall, in accordance with applicable Law and its
articles of incorporation and amended and restated bylaws, take all action
necessary to duly call, give notice of, convene and hold a special meeting of
its shareholders (including any adjournment or postponement thereof, the
"Special Meeting") as soon as practicable following the date hereof (but in any
event within 25 Business Days after the Proxy Statement is mailed to
shareholders) for the purpose of obtaining the Company Shareholder Approval.
30
(b) The Proxy Statement shall include the Company Recommendation
and the Company shall use its reasonable best efforts to obtain the Company
Shareholder Approval, subject to the right of the Board to withdraw, modify or
change its recommendation in accordance with Section 6.4(e).
6.4 No Solicitation.
(a) Neither the Company nor its affiliates shall, nor shall they
authorize or permit any of their respective Representatives to (and they shall
use their reasonable best efforts to cause such persons not to), (i) solicit or
initiate, encourage, or facilitate, directly or indirectly, any inquiries
relating to, or the submission of, any proposal or offer, whether in writing or
otherwise, from any person other than Parent, Holdings, Merger Sub or any
affiliates thereof (a "Third Party") to acquire beneficial ownership (as defined
under Rule 13(d) of the Exchange Act) of all or more than 15% of the assets of
the Company and its Subsidiaries, taken as a whole, or 15% or more of any class
of equity securities of the Company pursuant to a merger, consolidation or other
business combination, sale of shares of stock, sale of assets, tender offer,
exchange offer or similar transaction or series of related transactions, which
is structured to permit such Third Party to acquire beneficial ownership of more
than 15% of the assets of the Company and its Subsidiaries, taken as a whole, or
15% or more of any class of equity securities of the Company (a "Competing
Proposal"), (ii) enter into any letter of intent, memorandum of understanding,
merger agreement or other agreement, arrangement or understanding relating to
any Competing Proposal or (iii) continue or otherwise participate in any
discussions or negotiations regarding, or furnish to any person any information
or data or provide to any person access to the properties of the Company with
respect to, or otherwise cooperate with or take any other action to knowingly
facilitate the making of, any proposal that (x) constitutes a Competing Proposal
or (y) requires the Company to effect a Change of Recommendation.
Notwithstanding the foregoing, prior to the receipt of the Company Shareholder
Approval, in the event that the Company receives a bona fide unsolicited written
Competing Proposal that did not result from a breach of this Section 6.4(a), the
Company and the Board may, subject to compliance with the other provisions of
this Section 6.4, participate in discussions or negotiations (including, as a
part thereof, making any counterproposal) with, or furnish any information to,
any Third Party or Third Parties making such written Competing Proposal and
their respective Representatives and potential sources of financing if the Board
determines in good faith, after consultation with its outside legal counsel and
financial advisors, that (i) the Competing Transaction (A) is reasonably likely
to result in terms which are more favorable from a financial point of view to
the holders of Shares than the Merger and the other transactions contemplated
hereby and (B) is reasonably capable of being consummated (a "Superior
Proposal") and (ii) the failure to furnish such information or participate in
such discussions or negotiations could be reasonably expected to be inconsistent
with its fiduciary duties to the stockholders of the Company under applicable
Law.
(b) The Company shall be permitted to provide information to any
Third Party (or any Representative thereof or potential source of financing
therefor) pursuant to the second sentence of Section 6.4(a) only if (i) such
information is provided pursuant to and in accordance with a confidentiality
agreement containing terms and conditions no less restrictive
31
in any material respect than those contained in the Confidentiality Agreement,
and (ii) all such information provided to such Person has previously been
provided to Parent or is provided to Parent prior to or concurrently with the
time it is provided to such Person. The Company shall take all action necessary
to enforce its rights under the provisions of any "standstill" agreement between
the Company and a Third Party, and shall not grant any waiver of, or agree to
any amendment or modification to any such agreement, to permit such Third Party
to submit a Competing Proposal.
(c) The Company shall (i) immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any Persons
or their Representatives conducted prior to the date of this Agreement with
respect to any Competing Proposal and will request the prompt return or
destruction of any confidential information previously furnished to such Persons
in connection therewith, and (ii) use its reasonable best efforts promptly to
inform its Representatives of the obligations undertaken in this Section 6.4.
Without limiting the foregoing, any violation of the restrictions set forth in
this Section 6.4 by any Representative of the Company or any of its Subsidiaries
shall be deemed to be a breach of this Section 6.4 by the Company.
(d) As promptly as practicable after the receipt by the Company
or any of its Representatives of any Competing Proposal or any inquiry with
respect to, or that could reasonably be expected to lead to, any Competing
Proposal and in any case within 24 hours after the receipt thereof, the Company
shall provide oral and written notice to Parent of (i) such Competing Proposal
or inquiry, (ii) the identity of the Person making such Competing Proposal or
inquiry, and (iii) the material terms and conditions of such Competing Proposal
or inquiry (including any amendments or modifications thereto). The Company
shall keep Parent fully informed on as current a basis as is reasonably
practicable of the status of such Competing Proposal or inquiry, including,
without limitation, any changes to the terms and conditions thereof, and
promptly provide Parent with copies of all Competing Proposals (and
modifications thereof) and related term sheets, letters of intent, agreements,
draft agreements and modifications thereof.
(e) Neither the Board nor any committee thereof shall, directly
or indirectly, (i) withdraw, modify or qualify in any manner adverse to Parent
the Company Recommendation or make any statement in connection with the Special
Meeting inconsistent with such recommendation including, without limitation,
approving or recommending any Competing Proposal or failing to recommend the
adoption of this Agreement (any of the foregoing, a "Change of Recommendation")
or (ii) approve any letter of intent, memorandum of understanding, merger
agreement or other agreement, arrangement or understanding relating to any
Competing Proposal. Notwithstanding the foregoing, at any time prior to the
Company Shareholder Approval, the Board may, in response to a Superior Proposal
or an Intervening Event, after having complied with the other provisions of this
Section 6.4(e) and determined in good faith, after consultation with its outside
legal counsel and financial advisors, that the failure to do so would be
reasonably expected to be inconsistent with its fiduciary duties to the
stockholders of the Company under applicable Law, effect a Change of
Recommendation, provided that the Board may not effect a Change of
Recommendation unless (i) the Board shall
32
have first provided prior written notice to Parent that it is prepared to effect
a Change of Recommendation in response to a Superior Proposal or an Intervening
Event, which notice shall, in the case of a Superior Proposal, attach the most
current version of any written agreement relating to the transaction that
constitutes such Superior Proposal, and, in the case of an Intervening Event,
attach information describing such Intervening Event in reasonable detail, and
(ii) Parent does not make, within five Business Days after the receipt of such
notice, a proposal that the Board determines in good faith, after consultation
with a financial advisor of nationally recognized reputation, is at least as
favorable to the holders of the Company Common Stock as such Superior Proposal
or obviates the need for a Change of Recommendation as a result of an
Intervening Event, as the case may be. The Company agrees that, during the five
Business Day period prior to its effecting a Change of Recommendation, the
Company and its Representatives shall negotiate in good faith with Parent and
its Representatives regarding any revisions to the terms of the transaction
contemplated by this Agreement proposed by Parent. Notwithstanding any Change of
Recommendation, Parent shall have the option, exercisable within five Business
Days after such Change of Recommendation, to cause the Board to submit this
Agreement to the stockholders of the Company for the purpose of adopting this
Agreement and approving the Merger. If Parent exercises such option, Parent
shall not be entitled to terminate this Agreement pursuant to Section 8.3(ii).
If Parent fails to exercise such option, the Company may terminate this
Agreement pursuant to and in accordance with Section 8.4(ii).
(f) Nothing contained in this Agreement shall prohibit the
Company or the Board from (i) taking and disclosing to its shareholders a
position with respect to a tender or exchange offer by a third party pursuant to
Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or (ii) from
making any disclosure to the Company's shareholders if, in each case, the Board
has determined in good faith, after consultation with its outside counsel, that
it is required to do so in order to comply with applicable Law, including its
fiduciary duties to stockholders of the Company, provided, however that neither
the Board nor any committee thereof shall, except as expressly permitted by
Section 6.4(e), effect a Change of Recommendation or approve or recommend, or
publicly propose to approve or recommend, a Competing Proposal.
6.5 Reasonable Best Efforts.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, the Company and Parent shall each use their reasonable best
efforts to promptly (i) take, or to cause to be taken, all actions, and to do,
or to cause to be done, and to assist and cooperate with the other parties in
doing all things necessary, proper or advisable under applicable Law or
otherwise to consummate and make effective the transactions contemplated hereby;
(ii) obtain from any Governmental Entities or other Persons any actions,
non-actions, clearances, waivers, consents, approvals, permits or orders
required to be obtained by the Company, Parent or any of their respective
Subsidiaries in connection with the authorization, execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby; (iii) make all necessary registrations and filings, and
thereafter make any other required submissions, with respect to this Agreement
and the Merger required under (A) any applicable federal or state securities
Laws, (B) the HSR Act and any applicable
33
competition, antitrust or investment Laws of jurisdictions other than the U.S.,
(C) the FCC Rules, including the Communications Act, and (D) any other
applicable Law; provided, however, that the Company and Parent will cooperate
with each other in connection with the making of all such filings, including
providing copies of all such filings and attachments to the non-filing party;
(iv) furnish all information required for any application or other filing to be
made pursuant to any applicable Law in connection with the transactions
contemplated hereby; (v) keep the other party informed in all material respects
of any material communication received by such party from, or given by such
party to, any Governmental Entity and of any material communication received or
given in connection with any proceeding by a private party, in each case
relating to the transactions contemplated hereby; (vi) permit the other parties
to review any material communication delivered to, and consulting with the other
party in advance of any meeting or conference with, any Governmental Entity
relating to the transactions contemplated hereby or in connection with any
proceeding by a private party relating thereto, and giving the other party the
opportunity to attend and participate in such meetings and conferences (to the
extent permitted by such Governmental Entity or private party); (vii) avoid the
entry of, or have vacated or terminated, any decree, order, or judgment that
would restrain, prevent or delay the Closing, including defending any lawsuits
or other legal proceedings, whether judicial or administrative, challenging this
Agreement or the consummation of the transactions contemplated hereby; and
(viii) execute and deliver any additional instruments necessary to consummate
the transactions contemplated hereby. No parties to this Agreement shall consent
to any voluntary delay of the Closing at the behest of any Governmental Entity
without the consent of the other parties to this Agreement, which consent shall
not be unreasonably withheld. Without limiting this Section 6.5(a), Parent
agrees to take, or to cause to be taken, any and all steps and to make any and
all undertakings necessary to avoid or eliminate each and every impediment under
any antitrust, merger control, competition, or trade regulation Law or any other
applicable federal, state or local Law, including the FCC Rules, the
Communications Act and Utilities Laws, or impediment resulting from a PUC that
may be asserted by any Governmental Entity with respect to the Merger so as to
enable the Closing to occur as soon as reasonably possible (and in any event, no
later than the Termination Date) , including proposing, negotiating, committing
to, and effecting, by consent decree, hold separate order, or otherwise, the
sale, divestiture, licensing or disposition of such assets or businesses of
Parent (or its Subsidiaries) or the Company or otherwise taking or committing to
take actions that limit Parent's or its Subsidiaries' freedom of action with
respect to, or their ability to retain, any of the businesses, product lines or
assets of Parent (or its Subsidiaries) or the Company, in each case, as may be
required in order to avoid the entry of, or to effect the dissolution of, any
injunction, temporary restraining order, or other order in any suit or
proceeding, which would otherwise have the effect of preventing or delaying the
Closing. Except as contemplated or permitted by this Agreement, Parent,
Holdings, Merger Sub and the Company shall not, and shall not permit any of
their respective Subsidiaries to, take any action that could reasonably be
expected to result in any of the conditions to the Merger set forth in ARTICLE
VII not being satisfied as soon as reasonably possible (and in any event, no
later than the Termination Date).
(b) Each of the Company and Parent shall give prompt notice to
the other of (i) any written notice or other communication from any Governmental
Entity in connection with the Merger and (ii) any change or development that is
reasonably likely to have
34
a Company Material Adverse Effect or a Parent Material Adverse Effect, as
applicable; provided that no such notification shall affect the representations,
warranties or covenants of the parties or the conditions to the obligations of
the parties hereunder.
(c) Except with respect to the matter set forth in Section 7.3(d)
of the Company Disclosure Schedule, the Company shall not be permitted to agree
to any actions, restrictions or conditions, or make any payment (other than de
minimis administrative fees) with respect to obtaining any consents,
registrations, approvals, permits or authorizations in connection with the
transactions contemplated by this Agreement without the prior written consent of
Parent in its sole discretion, except for commercially reasonable agreements and
payments in connection with the matter set forth in Section 7.3(d) of the
Company Disclosure Schedule.
6.6 Access to Information. The Company shall (and shall cause each of
its Subsidiaries to) afford to directors, officers, employees, counsel,
investment bankers, accountants and other authorized representatives
("Representatives") of Parent and its affiliates reasonable access, in a manner
not unreasonably disruptive to the operations of the business of the Company and
its Subsidiaries, during normal business hours and upon reasonable notice
throughout the period prior to the Effective Time, to the properties, personnel,
books and records of the Company and its Subsidiaries and, during such period,
shall (and shall cause each of its Subsidiaries to) furnish promptly to such
Representatives all information concerning the business, properties and
personnel of the Company and its Subsidiaries as may reasonably be requested;
provided, however, that nothing herein shall require the Company or any of its
Subsidiaries to disclose any information to Parent, Holdings or Merger Sub if
such disclosure would, in the reasonable judgment of the Company, (i) cause
significant competitive harm to the Company or its Subsidiaries if the
transactions contemplated hereby are not consummated, (ii) violate applicable
Law or the provisions of any agreement to which the Company or any of its
Subsidiaries is a party or (iii) jeopardize any attorney-client or other legal
privilege. Parent agrees that it will not, and will cause its Representatives
not to, use any information obtained pursuant to this Section 6.6 for any
competitive or other purpose unrelated to the consummation of the transactions
contemplated hereby pursuant to this Agreement, other than in connection with
any divestiture or other disposition of assets. Except as otherwise contemplated
hereby, the confidentiality agreement, dated May 24, 2007 (the "Confidentiality
Agreement"), between the Company and Parent shall apply with respect to
information furnished by the Company, its Subsidiaries and the Company's
Representatives hereunder.
6.7 Publicity. The initial press release by each of Parent and the
Company with respect to the execution of this Agreement shall be reasonably
acceptable to Parent and the Company. Neither the Company nor Parent (nor any of
their respective affiliates) shall issue any other press release or make any
other public announcement with respect to this Agreement or the transactions
contemplated hereby without the prior agreement of the other party, except as
may be required by Law or by any listing agreement with a national securities
exchange, in which case the party proposing to issue such press release or make
such public announcement shall use its reasonable best efforts to consult in
good faith with the other party before making any such public announcements;
provided that the Company will no longer be required to obtain the prior
35
agreement of or consult with Parent in connection with any such press release or
public announcement if the Board has effected a Change of Recommendation.
6.8 Indemnification of Directors and Officers.
(a) From and after the Effective Time, Parent and the Surviving
Corporation shall (and Parent shall cause the Surviving Corporation to)
indemnify and hold harmless the individuals who at any time prior to the
Effective Time were directors or officers of the Company or any of its present
or former Subsidiaries or corporate parents (the "Indemnified Parties") against
any costs or expenses (including reasonable attorneys' fees), judgments, fines,
losses, claims, damages or liabilities in connection with actions or omissions
occurring at or prior to the Effective Time (including the transactions
contemplated hereby) to the fullest extent permitted by Law, and Parent and the
Surviving Corporation shall (and Parent shall cause the Surviving Corporation
to) promptly advance expenses as incurred to the fullest extent permitted by
Law. The articles of incorporation and bylaws of the Surviving Corporation shall
contain the provisions with respect to indemnification and advancement of
expenses set forth in the articles of incorporation and amended and restated
bylaws of the Company on the date hereof, which provisions shall not be amended,
repealed or otherwise modified in any manner that would adversely affect the
rights thereunder of the Indemnified Parties with respect to events occurring
prior to the Effective Time, unless such modification is required by Law.
(b) Parent and the Surviving Corporation shall (and Parent shall
cause the Surviving Corporation to) maintain in effect for not less than six (6)
years from the Effective Time the current policies of directors' and officers'
liability insurance and fiduciary liability insurance maintained by the Company
and the Company's Subsidiaries for the Indemnified Parties and any other
employees, agents or other individuals otherwise covered by such insurance
policies prior to the Effective Time (collectively, the "Insured Parties") with
respect to matters occurring at or prior to the Effective Time (including the
transactions contemplated hereby) or a "tail" or "run-off" policy providing such
coverage with respect to such matters; provided, however, that (i) Parent and
the Surviving Corporation may substitute therefor policies of substantially the
same coverage containing terms and conditions that are no less advantageous to
the Insured Parties, (ii) in no event shall Parent or the Surviving Corporation
be obligated to expend in order to obtain or maintain insurance coverage
pursuant to this Section 6.8(b) any amount per annum in excess of 200% of the
aggregate premiums currently paid or payable by the Company in 2007 (on an
annualized basis) for such purpose (the "Cap"), which the Company represents and
warrants to be no more than the amount set forth on Section 6.8(b) of the
Company Disclosure Schedule, and (iii) if equivalent coverage cannot be
obtained, or can be obtained only by paying an annual premium in excess of the
Cap, Parent and the Surviving Corporation shall only be required to obtain as
much coverage as can be obtained by paying an annual premium equal to the Cap.
(c) This Section 6.8 is intended to benefit the Insured Parties
and the Indemnified Parties, and shall be binding on all successors and assigns
of Parent, Holdings, Merger Sub, the Company and the Surviving Corporation.
Parent hereby guarantees the payment and performance by the Surviving
Corporation of the indemnification and other
36
obligations pursuant to this Section 6.8 and the articles of incorporation and
bylaws of the Surviving Corporation.
(d) In the event that Parent, the Surviving Corporation or any of
their successors or assigns (i) consolidates with or merges into any other
person and shall not be the continuing or surviving person of such consolidation
or merger or (ii) transfers or conveys a majority of its properties and assets
to any person, then, and in each such case, proper provision shall be made so
that the successors, assigns and transferees of Parent or the Surviving
Corporation or their respective successors or assigns, as the case may be,
assume the obligations set forth in this Section 6.8.
(e) To the extent permitted by Law, all rights of indemnification
and advancement of expenses for the benefit of any Indemnified Party shall be
mandatory rather than permissive.
6.9 Employees.
(a) For the benefit of employees of the Company and its
Subsidiaries to the extent such employee remains employed after the Effective
Time (the "Employees"), for a period of one (1) year following the Effective
Time, Parent agrees to (i) provide or cause the Surviving Corporation to provide
each Employee with base salary or wage rates, cash incentive compensation
opportunity and other cash compensation that, in the aggregate, are not less
than those in effect for such Employee immediately prior to the Effective Time
and (ii) either (A) maintain or cause the Surviving Corporation to maintain the
Company Plans (other than any equity-based Company Plan or any Company Plans
which are required to be terminated pursuant to this Agreement) at the benefit
levels in effect on the date hereof or (B) provide or cause the Surviving
Corporation to provide employee benefits (including retirement benefits) that,
in the aggregate, are no less favorable to each Employee than those in effect
for employees of Parent similarly situated to such Employee after the Effective
Time. In determining the total compensation to be provided post-Closing to each
Employee who participated in any equity-based Company Plan other than the ESSP,
but who is not expected to receive equity-based awards under Parent's programs,
during the first year following Closing Parent will cause Surviving Corporation
to evaluate whether any adjustment in other elements of compensation should be
made to reflect such lost participation and Surviving Corporation will make any
such adjustment(s) that Parent and Surviving Corporation determine to be
appropriate.
(b) As of the Effective Time, Parent shall honor or cause to be
honored, in accordance with their terms, all incentive, bonus, individual
benefit, employment, employment termination, severance and other compensation
agreements, plans and arrangements, including the Company's change-in-control
agreements and policies and general severance and retention plans, in each case
existing immediately prior to the execution of this Agreement, that are between
the Company or any of its Subsidiaries and any current or former officer,
director or employee thereof or for the benefit of any such current or former
officer, director or employee.
(c) With respect to each benefit plan, program, practice, policy
or arrangement maintained by Parent or its Subsidiaries following the Effective
Time and in which
37
any of the Employees participate (the "Parent Plans"), for purposes of
determining eligibility to participate and vesting, service with the Company and
its Subsidiaries (or predecessor employers to the extent the Company provides
past service credit) shall be treated as service with Parent and/or any
applicable Subsidiary of Parent; provided, however, that such service shall not
be recognized to the extent that such recognition would result in a duplication
of benefits. Such service also shall apply for purposes of satisfying any
waiting periods or evidence of insurability requirements. Each Parent Plan shall
waive pre-existing condition limitations for Employees (and their beneficiaries
and covered dependents) participating in such plan to the extent waived or not
applicable under the applicable Company Plan. The Employees shall be given
credit under the applicable Parent Plan for amounts paid prior to the Effective
Time during the Parent Plan year in which the Effective Time occurs under a
corresponding Company Plan during the same period for purposes of applying
deductibles, co-payments and out-of-pocket maximums for such period as though
such amounts had been paid in accordance with the terms and conditions of the
Parent Plan.
(d) Nothing contained in this Section 6.9, express or implied:
(i) shall be construed to establish, amend, or modify any Company Plan, any
Parent Plan, or any other benefit plan, program, agreement or arrangement; (ii)
shall alter or limit the ability of Parent, the Company, the Surviving
Corporation, or any Subsidiary to amend, modify or terminate any Company Plan,
any Parent Plan, or any other benefit plan, program, agreement or arrangement;
(iii) is intended to confer or shall confer upon any current or former employee
any right to employment or continued employment for any period of time by reason
of this Agreement, or any right to a particular term or condition of employment;
(iv) is intended to confer or shall confer upon any individual or any legal
representative of any individual (including employees, retirees, or dependents
or beneficiaries of employees or retirees and including collective bargaining
agents or representatives) any right as a third-party beneficiary of this
Agreement; or (v) shall be deemed to confer upon any such individual or legal
representative any rights under or with respect to any plan, program or
arrangement described in or contemplated by this Agreement, and each such
individual or legal representative shall be entitled to look only to the express
terms of any such plan, program or arrangement for his or her rights thereunder.
6.10 Section 16(b). The Board shall, prior to the Effective Time, take
all such actions as may be necessary or appropriate pursuant to Rule 16b-3(d)
and Rule 16b-3(e) under the Exchange Act to exempt from section 16 of the
Exchange Act the disposition of capital stock of the Company and "derivative
securities" (as defined in Rule 16a-1(c) under the Exchange Act) with respect to
capital stock of the Company pursuant to the terms of this Agreement by officers
and directors of the Company subject to the reporting requirements of section
16(a) of the Exchange Act.
6.11 Control of the Company's Operations. Nothing contained in this
Agreement shall give Parent, directly or indirectly, rights to control or direct
the operations of the Company prior to the Effective Time. Prior to the
Effective Time, the Company shall exercise, consistent with the terms and
conditions of this Agreement, complete control and supervision of its
operations.
38
6.12 Merger Sub and Surviving Corporation. Parent will take all
actions necessary to (a) cause Merger Sub and the Surviving Corporation to
perform their respective obligations under this Agreement, (b) cause Merger Sub
to consummate the Merger on the terms and conditions set forth in this Agreement
and (c) ensure that, prior to the Effective Time, Merger Sub shall not conduct
any business, make any investments or incur or guarantee any indebtedness.
6.13 Compliance with Laws. The Company shall, and shall cause each of
its Subsidiaries to, operate its business in compliance with all applicable Laws
in all material respects, including all FCC Rules relating to the sunset of the
Cellular Radiotelephone Service Analog Service Requirement and related
requirements, and shall use its reasonable best efforts to maintain in full
force and effect and, to the extent applicable, renew, the Company Permits. The
Company shall promptly provide Parent with copies of any Deployment Requests
that are received by the Company after the date hereof. The Company shall use
its reasonable best efforts to renew, prior to the expiration thereof and for a
period ending not less than 60 days after the Closing Date, each Public Safety
Access Point extension that would otherwise expire between the date hereof and
the Closing Date.
6.14 Treatment of Certain Notes.
(a) Subject to Section 6.14(c) hereto, the Company shall, and
shall cause each of its Subsidiaries to, use its respective reasonable best
efforts to commence, promptly after the receipt of a written request from Parent
to do so and the receipt of the Offer Documents from Parent, tender offers to
purchase, and any related consent solicitations with respect to, any
indebtedness of the Company and its Subsidiaries (collectively, the
"Indebtedness") on the terms and conditions specified by Parent in compliance
with all applicable covenants in the existing indentures and certificates of
designation (collectively, the "Debt Offers"), and Parent shall assist the
Company in connection therewith. Notwithstanding the foregoing, the closing of
the Debt Offers shall be conditioned on the completion of the Merger and
otherwise in compliance with applicable Laws and SEC rules and regulations. The
Company shall provide, and shall cause its Subsidiaries to, and shall use its
reasonable best efforts to cause their respective Representatives to, provide
cooperation reasonably requested by Parent in connection with the Debt Offers.
With respect to any series of Indebtedness, if requested by Parent in writing,
in lieu of commencing a Debt Offer for such series (or in addition thereto), the
Company shall, to the extent permitted by the indenture and officers'
certificates or supplemental indenture governing such series of Indebtedness (i)
issue a notice of optional redemption for all of the outstanding principal
amount of Indebtedness of such series pursuant to the requisite provisions of
the indenture and officer's certificate governing such series of Indebtedness or
(ii) take actions reasonably requested by Parent that are reasonably necessary
for the satisfaction and/or discharge and/or defeasance of such series pursuant
to the applicable provisions of the indenture and officer's certificate or
supplemental indenture governing such series of Indebtedness, and shall redeem
or satisfy and/or discharge and/or defease, as applicable, such series in
accordance with the terms of the indenture and officer's certificate or
supplemental indenture governing such series of Indebtedness at the Effective
Time, provided that to the extent that any action described in clause (i) or
(ii) can be conditioned on the occurrence of the
39
Effective Time, it will be so conditioned, and provided, further, that prior to
the Company being required to take any of the actions described in clause (i) or
(ii) above that cannot be conditioned on the occurrence of the Effective Time,
prior to the Closing, Parent shall irrevocably and timely deposit, or shall
cause to be irrevocably and timely deposited with the trustee under the relevant
indenture governing such series of Indebtedness sufficient funds to effect such
redemption or satisfaction or discharge. The Company shall, and shall cause its
Subsidiaries to, waive any of the conditions to the Debt Offers (other than that
the Merger shall have been consummated and that there shall be no Law
prohibiting consummation of the Debt Offers) as may be reasonably requested by
Parent in compliance with all applicable covenants in the existing indentures
and certificates of designation and shall not, without the written consent of
Parent, waive any condition to the Debt Offers or make any changes to the Debt
Offers other than as reasonably agreed between Parent and the Company.
(b) The Company covenants and agrees that, promptly following the
consent solicitation expiration date, assuming the requisite consents are
received, each of the Company and its applicable Subsidiaries as is necessary
shall (and shall use their reasonable efforts to cause the applicable trustee to
execute supplemental indentures to the indentures governing each series of
Indebtedness for which the requisite consent has been received, which
supplemental indentures shall implement the amendments described in the offer to
purchase, related letter of transmittal, and other related documents
(collectively, the "Offer Documents") and shall become operative only
concurrently with the Effective Time, subject to the terms and conditions of
this Agreement (including the conditions to the Debt Offers). Concurrent with
the Effective Time, Parent shall cause the Surviving Corporation to accept for
payment and thereafter promptly pay for any Indebtedness that has been properly
tendered and not properly withdrawn pursuant to the Debt Offers and in
accordance with the Debt Offers using funds provided by or at the direction of
Parent.
(c) Parent shall prepare all necessary and appropriate
documentation in connection with the Debt Offers, including the Offer Documents.
Parent and the Company shall, and shall cause their respective Subsidiaries to,
reasonably cooperate with each other in the preparation of the Offer Documents.
The Offer Documents (including all amendments or supplements) and all mailings
to the holders of Indebtedness in connection with the Debt Offers shall be
subject to the prior review of, and comment by, the Company and its legal
counsel. If at any time prior to the completion of the Debt Offers any
information in the Offer Documents should be discovered by the Company and its
Subsidiaries, on the one hand, or Parent, on the other, which should be set
forth in an amendment or supplement to the Offer Documents, so that the Offer
Documents shall not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of circumstances under which they are
made, not misleading, the party that discovers such information shall use
reasonable best efforts to promptly notify the other party, and an appropriate
amendment or supplement prepared by Parent describing such information shall be
disseminated by or on behalf of the Company or its Subsidiaries to the holders
of the applicable Indebtedness (which supplement or amendment and dissemination
may, at the reasonable direction of Parent, take the form of a filing of a
Current Report on Form 8-K). Notwithstanding anything to the contrary in this
Section 6.17(c), the Company shall and shall cause its
40
Subsidiaries to comply with the requirements of Rule 14e-1 under the Exchange
Act and any other applicable Law to the extent such laws are applicable in
connection with the Debt Offers and such compliance will not be deemed a breach
hereof.
(d) In connection with the Debt Offers, Parent may select one or
more dealer managers, information agents, depositaries and other agents, in each
case as shall be reasonably acceptable to the Company, to provide assistance in
connection therewith and the Company shall, and shall cause its Subsidiaries to,
enter into customary agreements (including legal opinions in the customary form
of the Company's outside legal counsel and indemnities) with such parties so
selected. Parent shall pay the fees and out-of pocket expenses of any dealer
manager, information agent, depositary or other agent retained in connection
with the Debt Offers upon the incurrence of such fees and out-of-pocket
expenses, and Parent further agrees to reimburse the Company and their
Subsidiaries for all of their reasonable and documented out-of-pocket costs
incurred in connection with the Debt Offers (including any expenses incurred in
connection with the provision of any indemnities).
6.15 Additional Agreements.
(a) Redemption of Exchangeable Preferred Stock. Immediately prior
to the Effective Time, the Company shall, if requested by Parent, send notice of
optional redemption to all the holders of the Exchangeable Preferred Stock
pursuant to and in accordance with the Certificate of Designation of Voting
Power, Preferences and Relative Participating, Optional and Other Special Rights
and Qualifications, Limitations and Restrictions of the Exchangeable Preferred
Stock (the "Exchangeable Preferred Certificate of Designation"). Such notice of
optional redemption shall include all necessary information as required by
section 5(e) of the Exchangeable Preferred Certificate of Designation, shall
provide that the Redemption Date (as defined in the Exchangeable Preferred
Certificate of Designation) be thirty (30) days from the Closing Date and shall
provide that all outstanding shares of Exchangeable Preferred Stock are to be
redeemed on the Redemption Date.
(b) Payment of Redemption of Exchangeable Preferred Stock.
Concurrently with the Company sending notice of optional redemption as provided
in Section 6.15(a), Parent shall deliver to the Company an amount in cash in
immediately-available funds sufficient to pay the aggregate Applicable
Redemption Price (as defined in the Exchangeable Preferred Certificate of
Designation) pursuant to such notice of optional redemption (the "Exchangeable
Preferred Stock Redemption Amount"). Immediately upon receipt of the
Exchangeable Preferred Stock Redemption Amount, the Company shall set aside the
Exchangeable Preferred Stock Redemption Amount, separate and apart from its
other funds in trust for the benefit of the holders of the shares of
Exchangeable Preferred Stock so called for redemption, so as to be, and continue
to be available therefor, then, on and after the Redemption Date in accordance
with section 5(f) of the Exchangeable Preferred Certificate of Designation.
6.16 Potential Sale of Assets. Between the date of this Agreement and
the Effective Time, to the extent reasonably requested by Parent, the Company
shall, and shall cause its Subsidiaries to, cooperate with Parent to facilitate
the disposition immediately prior to, at or after the Effective Time of any
assets or ownership interests held by the Company or any of its
41
Subsidiaries (such assets or interests being "Potential Sale Assets"). To the
extent reasonably requested by Parent, the Company shall, and shall cause its
Subsidiaries to, use its reasonable best efforts to (a) permit Persons whom
Parent identifies to the Company as potential purchasers of a Potential Sale
Asset to conduct (and cooperate with such Persons') reasonable investigations
with respect to such Potential Sale Asset (provided that any such Person
executes and delivers to the Company a confidentiality agreement containing
customary terms) and (b) deliver such notices, make such filings and execute
such Contracts relating to the disposition of Potential Sale Assets as maybe
reasonably requested by Parent; provided that neither the Company nor any of its
Subsidiaries shall be required to execute any such Contract under which the
Company or any of its Subsidiaries may be required to dispose of any Potential
Sale Asset other than immediately prior to, at or after the Effective Time, or
to agree to restrictions on their businesses or operations prior to the
Effective Time. Parent shall be permitted to identify potential purchasers of
Potential Sale Assets and negotiate any Contracts with respect to dispositions
of Potential Sale Assets.
6.17 CLEC Certificate. Prior to the Closing, the Company shall cause
to be terminated any competitive local exchange carrier Permit held by the
Company or any of its Subsidiaries.
6.18 Formation of Merger Sub6.19 . Within two (2) business days of the
date hereof, Holdings shall form Merger Sub and cause Merger Sub to execute a
signature page to this Agreement, after which Merger Sub shall be a party hereto
for all purposes set forth herein. Promptly thereafter, Holdings shall execute a
written consent approving this Agreement and this Merger. Notwithstanding any
provision herein to the contrary, the obligations of Merger Sub to perform its
covenants hereunder shall commence only at the time of its incorporation.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
7.1 Conditions to Each Party's Obligations to Effect the Merger. The
respective obligations of each party to effect the Merger are subject to the
satisfaction (or waiver by the Company, Parent, Holdings and Merger Sub, if
permissible under applicable Law) at or prior to the Closing of the following
conditions:
(a) Shareholder Approval. The Requisite Shareholder Approval
shall have been obtained.
(b) No Injunction. There shall not be in effect any statute,
rule, regulation, executive order, decree, ruling or injunction or other order
of a Governmental Entity having jurisdiction over the Company, Parent, Holdings
or Merger Sub directing that the transactions contemplated hereby not be
consummated.
(c) Regulatory Consents. (i) The waiting period applicable to the
consummation of the Merger under the HSR Act shall have expired or been earlier
terminated, (ii) all approvals and authorizations required to be obtained from
the FCC for the consummation of the Merger shall have been obtained and shall
have become Final Orders, (iii) all approvals and
42
authorizations required to be obtained from any PUC for the consummation of the
Merger shall have been obtained and (iv) any other Governmental Consents, the
failure of which to make or obtain would, individually or in the aggregate,
provide a reasonable basis to conclude that the Company or Parent or their
respective directors, officers or affiliates would be subject to the risk of
criminal liability or any other governmental enforcement action, shall have been
made or obtained. For purposes of this Agreement, the term "Governmental
Consents" shall mean all notices, reports, and other filings required to be made
prior to the Effective Time by the Company or Parent or any of their respective
Subsidiaries with, and all consents, registrations, approvals, permits,
clearances and authorizations required to be obtained prior to the Effective
Time by the Company or Parent or any of their respective Subsidiaries from, any
Governmental Entity in connection with the execution and delivery of this
Agreement and the consummation of the Merger and the other transactions
contemplated hereby.
7.2 Conditions to the Company's Obligations to Effect the Merger. The
obligations of the Company to effect the Merger are subject to the satisfaction
(or waiver by the Company) at or prior to the Closing of the following
additional conditions:
(a) (i) Each of the representations and warranties of Parent,
Holdings and Merger Sub contained in this Agreement qualified by reference to
Parent Material Adverse Effect, made as if such representations and warranties
did not contain any such qualification, shall be true and correct in all
respects, in each case, when made and at and as of the Closing as though made on
and as of such date (except that those representations and warranties which
address matters only as of a particular date shall remain true and correct as of
such date), except where the failure of such representations and warranties to
be true and correct as so made, individually or in the aggregate, has not had,
and would not reasonably be expected to have, a Parent Material Adverse Effect,
and (ii) each of the representations and warranties of Parent, Holdings and
Merger Sub contained in this Agreement not qualified by reference to Parent
Material Adverse Effect, made as if such representations and warranties did not
contain any qualification as to materiality, shall be true and correct in all
material respects when made and at and as of the Closing as though made on and
as of such date (except that those representations and warranties which address
matters only as of a particular date shall remain true and correct as of such
date).
(b) Each of Parent, Holdings and Merger Sub shall have performed
and complied with in all material respects their obligations under this
Agreement to be performed or complied with on or prior to the Closing.
(c) The Company shall have received a certificate signed by the
chief financial officer of Parent, dated as of the Closing Date, to the effect
that, to the knowledge of such officer, the conditions set forth in Section
7.2(a) and Section 7.2(b) have been satisfied.
7.3 Conditions to Parent's, Holdings' and Merger Sub's Obligations to
Effect the Merger. The obligations of Parent, Holdings and Merger Sub to effect
the Merger are subject to the satisfaction (or waiver by Parent and Merger Sub)
at or prior to the Closing of the following additional conditions:
43
(a) (i) Each of the representations and warranties of the Company
contained in this Agreement qualified by reference to Company Material Adverse
Effect, made as if such representations and warranties did not contain any such
qualification, and the representation and warranty contained in Section
4.4(a)(iv), shall be true and correct in all respects, in each case, when made
and at and as of the Closing as though made on and as of such date (except that
those representations and warranties which address matters only as of a
particular date shall remain true and correct as of such date), except where the
failure of such representations and warranties to be true and correct as so
made, individually or in the aggregate, has not had, and would not reasonably be
expected to have, a Company Material Adverse Effect, and (ii) each of the
representations and warranties of the Company contained in this Agreement not
qualified by reference to Company Material Adverse Effect (other than the
representation and warranty contained in Section 4.4(a)(iv)), made as if such
representations and warranties did not contain any qualification as to
materiality, shall be true and correct in all material respects when made and at
and as of the Closing as though made on and as of such date (except that those
representations and warranties which address matters only as of a particular
date shall remain true and correct as of such date); provided that the
representations and warranties of the Company contained in Section 4.2 and
Section 4.3 shall be true and correct in all respects (other than de minimis
inaccuracies with respect to Section 4.3) at and as of the Closing as though
made on and as of such date (except that those representations and warranties
which address matters only as of a particular date shall remain true and correct
as of such date).
(b) The Company shall have performed and complied with in all
material respects its obligations under this Agreement to be performed or
complied with on or prior to the Effective Time.
(c) Parent shall have received a certificate signed by the chief
financial officer of the Company, dated as of the Closing Date, to the effect
that, to the knowledge of such officer, the conditions set forth in Section
7.3(a) and Section 7.3(b) have been satisfied.
(d) Certain Consent. The consent relating to the agreement set
forth in Section 7.3(d) of the Company Disclosure Schedule shall have been
obtained.
(e) Rights Plans. No Distribution Date (as defined in either the
Class A Rights Plan or the Class B Rights Plan) shall have occurred.
7.4 Frustration of Closing Conditions. None of the Company, Parent,
Holdings or Merger Sub may rely on the failure of any condition set forth in
Section 7.1, Section 7.2 or Section 7.3, as the case may be, to be satisfied if
such failure was caused by such party's failure to use its reasonable best
efforts to consummate the Merger and the other transactions contemplated hereby,
as required by and subject to Section 6.5.
44
ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER
8.1 Termination by Mutual Consent. This Agreement may be terminated
and the Merger may be abandoned at any time prior to the Effective Time, by the
mutual written consent of Parent and the Company.
8.2 Termination by Either Parent or the Company. This Agreement may
be terminated and the Merger may be abandoned by Parent or the Company if (i)
any Governmental Entity having jurisdiction over the Company, Parent, Holdings
or Merger Sub shall have issued an order, decree or ruling or taken any other
action permanently restraining, enjoining or otherwise prohibiting the Merger
and such order, decree, ruling or other action shall have become final and
nonappealable; provided that the party seeking to terminate this Agreement
pursuant to this Section 8.2(i) shall have complied with its obligations under
Section 6.5(a), (ii) the Company Shareholder Approval shall not have been
received at the Special Meeting duly called and held or (iii) the Effective Time
shall not have occurred on or before August 31, 2008 (the "Termination Date");
provided that the right to terminate this Agreement pursuant to this Section
8.2(iii) shall not be available to any party whose failure to fulfill any of its
obligations under this Agreement results in such failure of the Merger to occur
on or prior to such date; provided further, however, that, if the condition set
forth in Section 7.1(c) shall not have been satisfied solely by reason of the
failure of any Governmental Consent that has been obtained to have become a
Final Order, neither party may terminate this Agreement prior to the 60th day
after the date on which such Governmental Consent was obtained.
8.3 Termination by Parent. This Agreement may be terminated by Parent
prior to the Effective Time (i) if the Company shall have failed to perform in
any material respect any of its material obligations under this Agreement to be
performed at or prior to such date of termination, which failure to perform is
not cured, or is incapable of being cured, within 30 days after the receipt by
the Company of written notice of such failure or (ii) if, subject to the
penultimate sentence of Section 6.4(e), the Board of Directors shall have
effected a Change of Recommendation.
8.4 Termination by the Company. This Agreement may be terminated by
the Company prior to the Effective Time (i) if Parent, Holdings or Merger Sub
shall have failed to perform in any material respect any of their material
obligations under this Agreement to be performed at or prior to such date of
termination, which failure to perform is not cured, or is incapable of being
cured, within 30 days after the receipt by Parent of written notice of such
failure or (ii) pursuant to the last sentence of Section 6.4(e), if the Company,
prior to the termination of this Agreement, pays the Termination Fee to Parent.
8.5 Effect of Termination.
(a) In the event of the termination of this Agreement pursuant to
this ARTICLE VIII, this Agreement shall forthwith become void and have no
effect, without any liability on the part of any party hereto or its affiliates,
directors, officers or shareholders, other
45
than the provisions of this Section 8.5, the provisions of ARTICLE IX and the
last two sentences of Section 6.6. Nothing contained in this Section 8.5 shall
relieve any party from liability for any fraud or willful breach of any
representation, warranty, covenant or other agreement contained in this
Agreement.
(b) In the event of termination of this Agreement:
(i) by Parent pursuant to Section 8.3(i), as a result of a
breach by Company or any of its Subsidiaries or their respective
Representatives of Section 6.3 or Section 6.4, or Section 8.3(ii);
(ii) by the Company pursuant to Section 8.4(ii);
(iii) by either Parent or the Company pursuant to Section
8.2(ii) if, prior to the Special Meeting, (x) a Competing Transaction is
publicly announced or becomes publicly known and has not been withdrawn and
within one (1) year after the termination of this Agreement the Company
consummates, enters into a definitive agreement in respect of, or the Board
approves or recommends, any Competing Proposal, or (y) a Competing
Transaction is publicly announced or becomes publicly known and has been
withdrawn and within one (1) year after the termination of this Agreement
the Company consummates, enters into a definitive agreement in respect of,
or the Board approves or recommends, a Competing Proposal with the Person
that made the previously withdrawn Competing Proposal; provided that,
solely for purposes of this Section 8.5(b)(iii), the term "Competing
Proposal" shall have the meaning ascribed thereto in Section 6.4(a),
except that all references to 15% shall be deemed to be 50%;
then the Company shall make payment to Parent of a fee in the amount equal to
$55,000,000, minus any previously paid Expense Reimbursement (the "Termination
Fee"), in the case of clause (i) above, within five (5) business days following
such termination, or, in the case of clause (ii) above, concurrently with such
termination, or, in the case of clause (iii) above, not later than five (5)
business days after the earliest of the date of such definitive agreement,
approval or recommendation; it being understood that in no event shall the
Company be required to pay the fee referred to in this Section 8.5(b) on more
than one occasion. Upon payment of the Termination Fee, the Company shall have
no further liability to Parent, Holdings or Merger Sub with respect to this
Agreement or the transactions contemplated hereby, except for liability for any
fraud or willful breach of any covenant or other agreement contained in this
Agreement. All payments contemplated by this Section 8.5(b) shall be made by
wire transfer of immediately-available funds to an account designated by Parent
and shall be reduced by any amounts required to be deducted or withheld
therefrom under applicable Law in respect of taxes.
(c) In the event that the Company shall fail to pay the
Termination Fee and/or Expense Reimbursement when due, the Termination Fee
and/or Expense Reimbursement, as the case may be, shall accrue interest for the
period commencing on the date the Termination Fee and/or Expense Reimbursement,
as the case may be, became past due, at a rate equal to the
46
rate of interest publicly announced by Citibank, N.A., in the City of New York
from time to time during such period, as such bank's prime lending rate plus 200
basis points. In addition, if the Company shall fail to pay the Termination Fee
and/or Expense Reimbursement, as the case may be, when due, the Company shall
also pay to Parent all costs and expenses (including attorneys' fees) of Parent
and its affiliates in connection with efforts to collect the Termination Fee
and/or Expense Reimbursement, as the case may be.
ARTICLE IX
MISCELLANEOUS AND GENERAL
9.1 Payment of Expenses.
(a) Subject to Section 9.1(b), all Expenses incurred in
connection with the Merger, this Agreement and the consummation of the
transactions contemplated hereby shall be paid by the party incurring such
Expenses, whether or not the Merger or any of the other transactions
contemplated hereby is consummated.
(b) If this Agreement is terminated pursuant to Section 8.2(ii)
and, prior to the Special Meeting, a Competing Transaction is publicly announced
or becomes publicly known and has not been withdrawn, the Company shall
reimburse Parent, Holdings and Merger Sub for all of their reasonably documented
Expenses, up to a maximum amount of $10,000,000, within one Business Day of
receipt of written notice from Parent requesting payment thereof (the
obligations of the Company contained in this Section 9.1(b), the "Expense
Reimbursement").
9.2 Survival of Representations and Warranties; Survival of
Confidentiality. None of the representations and warranties in this Agreement or
in any schedule, instrument or other document delivered pursuant to this
Agreement shall survive the Effective Time. This Section 9.2 shall not limit any
covenant or agreement contained in this Agreement that by its terms is to be
performed in whole or in part after the Effective Time. The Confidentiality
Agreement shall survive any termination of this Agreement, and the provisions of
such Confidentiality Agreement shall apply to all information and material
delivered by any party hereunder.
9.3 Modification or Amendment. Subject to applicable Law, this
Agreement may be amended, modified and supplemented in any and all respects,
whether before or after any vote of the shareholders of the Company contemplated
hereby, by written agreement of the parties hereto, by action taken by their
respective boards of directors (or individuals holding similar positions, in the
case of a party that is not a corporation), at any time prior to the Effective
Time with respect to any of the terms contained herein; provided, however, that
after the approval of this Agreement by the shareholders of the Company, no such
amendment, modification or supplement shall reduce or change the Merger
Consideration or adversely affect the rights of the Company's shareholders
hereunder without the approval of such shareholders.
47
9.4 Notices. All notices, consents and other communications hereunder
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by hand delivery, by prepaid overnight courier (providing
written proof of delivery), by confirmed facsimile transmission or by certified
or registered mail (return receipt requested and first-class postage prepaid),
addressed as follows:
(a) if to Parent, Holdings or Merger Sub, to:
Verizon Wireless
Xxx Xxxxxxx Xxx, XX 00
Xxxxxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxx X. Xxxxxxx
with copies to:
Verizon Wireless
Xxx Xxxxxxx Xxx, XX 00
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx
and to:
Debevoise & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxx
(b) if to the Company, to:
Rural Cellular Corporation
0000 Xxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Telephone: 000- 000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx Xxxxxxxx, President and
Chief Executive Officer
48
with copies to:
Rural Cellular Corporation
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxxx Xxxxxx
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 312-407-0411
Attention: Xxxx X. Xxxxxx
or to such other address or facsimile number for a party as shall be specified
in a notice given in accordance with this section; provided that any notice
received by facsimile transmission or otherwise at the addressee's location on
any business day after 5:00 P.M. (addressee's local time) shall be deemed to
have been received at 9:00 A.M. (addressee's local time) on the next business
day; provided further that notice of any change to the address or any of the
other details specified in or pursuant to this section shall not be deemed to
have been received until, and shall be deemed to have been received upon, the
later of the date specified in such notice or the date that is five (5) business
days after such notice would otherwise be deemed to have been received pursuant
to this section. A party's rejection or other refusal to accept notice hereunder
or the inability of another party to deliver notice to such party because of
such party's changed address or facsimile number of which no notice was given by
such party shall be deemed to be receipt of the notice by such party as of the
date of such rejection, refusal or inability to deliver. Nothing in this section
shall be deemed to constitute consent to the manner or address for service of
process in connection with any legal proceeding, including litigation arising
out of or in connection with this Agreement.
9.5 Interpretation. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties, and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement. The inclusion of any item in the Company
Disclosure Schedule shall not be deemed to be an admission or evidence of
materiality of such item, nor shall it establish any standard of materiality for
any purpose whatsoever.
9.6 Waiver of Conditions. Except as otherwise provided in this
Agreement, any failure of any of the parties to comply with any obligation,
covenant, agreement or condition herein may be waived by the party or parties
entitled to the benefits thereof only by a written instrument signed by the
party granting such waiver, but such waiver or failure to insist upon
49
strict compliance with such obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
9.7 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in multiple counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
9.8 Governing Law. Except to the extent that the laws of the State of
Minnesota mandatorily apply, this Agreement shall be governed, performed and
construed in accordance with the laws of the State of New York without giving
effect to its principles or rules of conflict of laws to the extent such
principles or rules would require or permit the application of the laws of
another jurisdiction.
9.9 Jurisdiction. Each of the parties hereto hereby (a) expressly and
irrevocably submits to the exclusive personal jurisdiction of any court of New
York State sitting in New York County or any Federal court of the United States
of America sitting in New York County, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby or for recognition or enforcement of any
judgment relating thereto, (b) agrees that it will not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from any such
court and (c) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
a U.S. federal or state court sitting in New York County; provided that each of
the parties shall have the right to bring any action or proceeding for
enforcement of a judgment entered by any U.S. federal court located in New York
County or any New York state court in any other court or jurisdiction.
9.10 Service of Process. Each party irrevocably consents to the
service of process outside the territorial jurisdiction of the courts referred
to in Section 9.9 in any such action or proceeding by mailing copies thereof by
registered U.S. mail, postage prepaid, return receipt requested, to its address
as specified in or pursuant to Section 9.4. However, the foregoing shall not
limit the right of a party to effect service of process on the other party by
any other legally available method.
9.11 Specific Performance. Each of the parties hereto acknowledges and
agrees that, in the event of any breach of this Agreement, each nonbreaching
party would be irreparably and immediately harmed and could not be made whole by
monetary damages. It is accordingly agreed that the parties hereto (a) will
waive, in any action for specific performance, the defense of adequacy of a
remedy at law and (b) shall be entitled, in addition to any other remedy to
which they may be entitled at law or in equity, to compel specific performance
of this Agreement in any action instituted in accordance with Section 9.9.
9.12 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding
50
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective permitted successors and
assigns.
9.13 Entire Agreement; Third-Party Beneficiaries. This Agreement,
including the Company Disclosure Schedule and the exhibits hereto, together with
the other instruments referred to herein, including the Confidentiality
Agreement, (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof and thereof and (b) except as
provided in ARTICLE III on and after the Effective Time and Section 6.8, is not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
9.14 Certain Definitions; Other Definitional Provisions.
(a) Certain Definitions. As used herein:
(i) "Company Material Adverse Effect" shall mean any material
adverse change in, or material adverse effect on, (x) the ability of the
Company to perform its obligations under this Agreement or to consummate
the transactions contemplated hereby or (y) the business, financial
condition, continuing operations or results of operations of the Company
and its Subsidiaries, taken as a whole, other than changes, events, effects
or circumstances relating to (i) the industries and markets in which the
Company and its Subsidiaries operate, (ii) national or international
economic conditions, (iii) the U.S. financial and securities markets, (iv)
the execution of this Agreement, the announcement of this Agreement or the
pendency or consummation of the transactions contemplated hereby, (v) any
acts of terrorism or war, (vi) changes in any Laws (including, without
limitation, Laws with respect to Universal Service Funding) or accounting
regulations or principles applicable to the Company or any of its
subsidiaries, (vii) any action taken at the request of Parent, Holdings or
Merger Sub, (viii) any failure by the Company or its Subsidiaries to meet
earnings estimates or financial projections (but not the underlying causes
of such failure) and (ix) the termination for convenience or nonrenewal,
not resulting from a breach by the Company, of a contract, agreement or
arrangement between the Company and any competitor of Parent by such
competitor shall also be excluded from the determination of Company
Material Adverse Effect; provided that the effect of the changes in clauses
(i), (ii), (iii), (v) and (vi) shall be included to the extent of, and in
the amount of, the disproportionate impact (if any) they have on the
Company.
(ii) "Contract" shall mean any written agreement, contract,
commitment, instrument, undertaking or arrangement.
(iii) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
51
(iv) "Expenses" shall mean all out-of-pocket expenses
(including, without limitation, fees and expenses of counsel, accountants,
investment bankers, experts and consultants) incurred by a party or on its
behalf in connection with or related to the authorization, preparation,
negotiation, execution and performance of this Agreement and the
transactions contemplated hereby.
(v) "Final Order" means an action or decision as to which (a)
no request for a stay is pending, no stay is in effect, and any deadline
for filing such request that may be designated by statute or regulation has
passed, (b) no petition for rehearing or reconsideration or application for
review is pending and the time for the filing of any such petition or
application has passed, (c) the relevant governmental or regulatory body
does not have the action or decision under reconsideration on its own
motion and the time within which it may effect such reconsideration has
passed, and (d) no appeal is pending or in effect and any deadline for
filing any such appeal that may be designated by statute or rule has
passed.
(vi) "Intervening Event" shall mean an event, unknown to the
Board as of the date hereof, which becomes known prior to the Company
Shareholder Approval.
(vii) "knowledge of the Company" shall mean such facts and
other information that as of the date of determination are actually known
to the Chief Executive Officer, Chief Financial Officer, Chief Operating
Officer, Senior Vice President, Finance and Accounting, or Vice President,
Legal Services, of the Company.
(viii) "Parent Material Adverse Effect" shall mean any
material adverse change in, or material adverse effect on, the ability of
any of Parent, Holdings or Merger Sub to perform its obligations under this
Agreement or to consummate the transactions contemplated hereby.
(ix) "PUC" shall mean any local or state public utility
commission or similar local or state regulatory body.
(x) "Securities Act" shall mean the Securities Act of 1933,
as amended.
(xi) "Subsidiary" shall mean, when used with reference to any
entity, any entity a majority of the outstanding voting securities of which
are owned directly or indirectly by such former entity.
(xii) "Utilities Laws" shall mean local or state Laws
regulating the telecommunications business.
52
(b) Other Definitional Provisions.
(i) The words "hereof," "herein" and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to
this Agreement as a whole and not to any particular provision of this
Agreement, and references to articles, sections, paragraphs, exhibits and
schedules are to the articles, sections and paragraphs of, and exhibits and
schedules to, this Agreement, unless otherwise specified.
(ii) Whenever "include," "includes" or "including" is used in
this Agreement, such word shall be deemed to be followed by the phrase
"without limitation."
(iii) Words describing the singular number shall be deemed to
include the plural and vice versa, words denoting any gender shall be
deemed to include all genders and words denoting natural persons shall be
deemed to include business entities and vice versa.
(iv) When used in reference to information or documents, the
phrase "made available" means that the information or documents referred to
have been made available in the electronic data room created by the Company
to which Parent has been given access in connection with the transactions
contemplated by this Agreement.
(v) The phrases "the date of this Agreement" and "the date
hereof" and terms or phrases of similar import shall be deemed to refer to
July 29, 2007, unless the context otherwise requires.
(vi) Terms defined in the text of this Agreement as having a
particular meaning have such meaning throughout this Agreement, except as
otherwise indicated in this Agreement.
9.15 Obligation of Parent. Whenever this Agreement requires Merger Sub
or Holdings to take any action, such requirement shall be deemed to include an
undertaking on the part of Parent to cause Merger Sub or Holdings, as the case
may be, to take such action and a guarantee of the performance thereof.
9.16 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable or against its regulatory policy, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
9.17 Headings. Headings of the articles and sections of this Agreement
and the table of contents, schedules and exhibits are for convenience of the
parties only and shall be given no substantive or interpretative effect
whatsoever.
53
9.18 WAIVER OF JURY TRIAL. EACH OF PARENT, HOLDINGS, MERGER SUB AND
THE COMPANY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, HOLDINGS,
MERGER SUB OR THE COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
RURAL CELLULAR CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: XXXXXXX X. XXXXXXXX
Title: PRESIDENT AND CEO
CELLCO PARTNERSHIP d/b/a Verizon
Wireless
By: /s/ Xxxxxx X. XxXxxx
------------------------------
Name: Xxxxxx X. XxXxxx
Title: President and Chief
Executive Officer
AIRTOUCH CELLULAR d/b/a Verizon
Wireless
By: /s/ Xxxxxx Xxxx
------------------------------
Name: Xxxxxx Xxxx
Title: Secretary
