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CONTRIBUTION AGREEMENT
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
EASTERN TIME, ON JULY __, 1998 (the "Expiration Date") UNLESS EXTENDED.
Mail or deliver this Contribution Agreement at the following address:
IWL Holdings Corp. VIA FACSIMILE: (000) 000-0000
Two Galleria Tower FOR ASSISTANCE: (000) 000-0000
00000 Xxxx Xxxx, Xxx. 0000
Xxxxxx, Xxxxx 00000
To participate in the Exchange Offer, a duly executed copy of this
Contribution Agreement and any other documents required by this Contribution
Agreement must be received by Holdings on or prior to the Expiration Date.
Delivery of this Contribution Agreement or any other required documents to an
address other than as set forth above does not constitute valid delivery. The
method of delivery of all documents is at the election and risk of the tendering
holder of Partnership Interests.
This Contribution Agreement is to be completed by the holders of
Partnership Interests of Caprock Fiber Network, Ltd. (the "Partnership")
pursuant to the procedures set forth in the Joint Proxy Statement / Prospectus
dated June ___, 1998, (the "Proxy Statement") and this Contribution Agreement.
Capitalized terms used herein that are defined in the Proxy Statement and not
otherwise defined in this Contribution Agreement have the meanings ascribed to
such terms in the Proxy Statement.
PLEASE CAREFULLY READ THE ACCOMPANYING INSTRUCTIONS
Gentlemen:
The undersigned holder of Partnership Interests hereby tenders to
Holdings all of the Partnership Interests held by the undersigned or, if less
than all such Partnership Interests, the amount of Partnership Interests
expressed as a percentage of all outstanding Partnership Interests, indicated
below the Signature Box. In exchange for each one percent (1%) of
Partnership Interest tendered, holders of such Partnership Interests will
receive 63,194.54 shares of Holdings Common Stock upon the terms and subject
to the conditions set forth in the Proxy Statement, and this Contribution
Agreement (which together constitute the "Offer Documents"). Receipt of the
Offer Documents is hereby acknowledged by the undersigned.
ASSIGNMENT TO HOLDINGS. Subject to and effective upon acceptance for
exchange of any and all Partnership Interests tendered hereby, the
undersigned hereby assigns to Holdings all right, title, and interest in and
to such Partnership Interests in exchange for shares of Holdings Common Stock
on the basis of 63,194.54 shares of Holdings Common Stock for each one
percent (1%) of Partnership Interest tendered by it and acepted by Holdings
(the "Exchanged Partnership Interests").
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REPRESENTATIONS. The undersigned hereby represents that, (i)
undersigned has the right and authority to transfer the tendered Partnership
Interest, (ii) such Partnership Interest is free and clear of all liens,
encumbrances, and adverse claims other than those liens securing indebtedness
of the Partnership or that were otherwise taken into account in the
calculation of the exchange value of such Partnership Interest, (iii) the
undersigned has not made any binding commitment requiring the undersigned to
dispose of the shares of Holdings Common Stock to be received by the
undersigned in the Interest Exchange and (iv) the undersigned has no plan or
intention of making such a disposition.
APPROVALS. At the date this Contribution Agreement is accepted by
Holdings, the undersigned hereby approves, adopts, and consents to the
following: (i) the Merger Agreement, (ii) the Plan Proposals, (iii) the
transfers of the Partnership Interests to Holdings in the Exchange Offer and
the subsequent transfer of the Partnership Interest of the General Partner to
C-Sub, which, as a result of the Telecommuncations Merger, will be transferred
to Telecommunications, (iv) the substitution of Telecommunications as a
general partner of the Partnership in respect of the Partnership Interests
transferred to it without the necessity of signing the Shareholders Agreement
as otherwise required by the Partnership Agreement and the substitution of
Holdings as a limited partner in respect of the Partnership Interests
transferred to it, (v) the continuation of the business of the Partnership to
the extent any of the actions effected pursuant to the Transaction would
cause a dissolution of the Partnership, and (vi) any amendment to the
Partnership Agreement necessary to permit any of the actions effected
pursuant to the Transaction.
WAIVERS. At the date this Contribution Agreement is accepted by
Holdings, the undersigned hereby waives (i) any rights it may have to
purchase Partnership Interests that are transferred in the Interest Exchange
or subsequently transferred by Holdings to C-Sub or in the Telecommunications
Merger, including those rights of first refusal granted in the Partnership
Agreement and (ii) any default that exists under the Partnership Agreement as
a result of the Interest Exchange or any of the other matters consented to by
the partner in this Contribution Agreement.
APPOINTMENTS. At the date this Contribution Agreement is accepted by
Holdings, the undersigned hereby (i) irrevocably appoints Holdings and its
executive officers and designees, with full power of substitution, as the
undersigned's proxies and attorneys-in-fact, to take the following action:
(a) to exercise all voting and other rights of the undersigned with respect
to the Exchanged Partnership Interests that they, in their sole discretion,
may deem proper at any meeting of partners, by written consent, or otherwise;
(b) to transfer ownership of the Exchanged Partnership Interests on the
Partnership's books, together with all other evidences of transfer and
authenticity any of them may deem necessary or appropriate, and (c) to
receive and exercise all benefits and otherwise exercise all rights of
ownership of the Exchanged Partnership Interests; (ii) revokes, rescinds and
withdraws all prior proxies and powers of attorney given with respect to the
Exchanged Partnership Interests; (iii) agrees not to grant any further
proxies or powers of attorney with respect to the Exchanged Partnership
Interests and agrees that any such proxy or power of attorney purported to be
granted will not be effective. This appointment is coupled with an interest.
COVENANTS. The undersigned hereby agrees to take such further action and
execute such further documents as Holdings may request in order to effect or
confirm the Interest Exchange and the other matters addressed by this
Contribution Agreement.
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BINDING EFFECT. The undersigned understands that a tender of Partnership
Interests to Holdings in exchange for shares of Holdings Common Stock, and the
acceptance thereof by Holdings, will constitute a binding agreement between the
undersigned and Holdings upon the terms and subject to the conditions of the
Exchange Offer. The undersigned recognizes that under certain circumstances set
forth in the Offer Documents, Holdings may not be required to accept for
exchange any of the Partnership Interests tendered hereby. In such event, the
undersigned understands that any Contribution Agreement for such Partnership
Interests will be destroyed by Holdings. All authority herein conferred or
agreed to be conferred shall survive the death or incapacity of the undersigned
and any obligations of the undersigned shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned.
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SIGNATURE BOX
(Please complete Boxes A, B, C, D, and E on the following page as necessary)
Please sign exactly as your name is printed (or corrected) above, and insert
your Taxpayer Identification Number (Federal Employer Identification Number
or Social Security Number) in the space provided below your signature. For
joint owners, each joint owner must sign. (SEE INSTRUCTION 1.) The
signatory hereto hereby certifies under penalties of perjury the statements
in Box B, Box C and, if applicable, Box D. If the undersigned is tendering
less than all Partnership Interests held, the number of Partnership Interests
tendered is set forth below.
X
(SIGNATURE OF OWNER) (DATE)
X
(SIGNATURE OF OWNER) (DATE)
Indicate amount of Partnership Interests tendered; otherwise, all Partnership
Interests held by the undersigned are tendered hereby.
_______% Partnership Interests
Taxpayer Identification No. ("TIN")
Telephone No.
(day) (eve.)
BOX A
Additional Information
If signing as a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation, or other person acting in a fiduciary or
representative capacity, please provide the following information. SEE
INSTRUCTION 1.
Name and Capacity
Address
Area Code and Telephone No.
BOX B
SUBSTITUTE FORM W-9
(SEE INSTRUCTION 3 - BOX B)
The person signing this Contribution Agreement hereby certifies the following to
Holdings under penalties of perjury:
(i) The TIN set forth in the signature box of this Contribution Agreement is the
correct TIN of the holder of Partnership Interests , or if this box [ ] is
checked, has applied for a TIN. If the holder of Partnership Interests has
applied for a TIN, a TIN has not been issued to the holder of Partnership
Interests, and either: (a) the holder of Partnership Interests has mailed or
delivered an application to receive a TIN to the appropriate IRS Center or
Social Security Administration Office, or (b) the holder of Partnership
Interests intends to mail or deliver an application in the near future (it being
understood that if the holder of Partnership Interests does not provide a TIN
to Holdings within sixty (60) days, 31% of all reportable payments made to the
holder of Partnership Interests thereafter will be withheld until a TIN is
provided to the Purchaser); and (ii) unless this box [ ] is checked, the
holder of Partnership Interests is not subject to backup withholding either
because the holder of Partnership Interests : (a) is exempt from backup
withholding, (b) has not been notified by the IRS that the holder of Partnership
Interests is subject to backup withholding as a result of a failure to report
all interest or dividends, or (c) has been notified by the IRS that such holder
of Partnership Interests is no longer subject to backup withholding.
Note: Place an 'X' in the box in (ii) if you are unable to certify that the
holder of Partnership Interests is not subject to backup withholding.
BOX C
FIRPTA AFFIDAVIT
(SEE INSTRUCTION 3 - BOX C)
Under Section 1445(e)(5) of the Internal Revenue Code and Treas. Reg.
1.1445-11T(d), a transferee must withhold tax equal to 10% of the amount
realized with respect to certain transfers of an interest in a partnership if
50% or more of the value of the Partnership's gross assets consists of U.S.
real property interests and 90% or more of the value of the partnership's
gross assets consists of U.S. real property interests plus cash equivalents
and the holder of the partnership interest is a foreign person. To inform
Holdings that no withholding is required with respect to the Partner's
interest in the Partnership, the person signing this Contribution Agreement
hereby certifies the following under penalties of perjury: (i)Unless this
box [ ] is checked, the Partner, if an individual, is a U.S. citizen or a
resident alien for purposes of U.S. income taxation, and if other than an
individual, is not a foreign corporation, foreign partnership, foreign
estate, or foreign trust (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations); (ii) the Partner's U.S. social security
number (for individuals) or employer identification number (for
non-individuals) is correctly printed in the signature box on the front of
this Contribution Agreement; and (iii) the Partner's home address (for
individuals), or office address (for non-individuals), is correctly printed
(or corrected) on the front of this Contribution Agreement. If a
corporation, the jurisdiction of incorporation is ___________________________.
The person signing this Contribution Agreement understands that this
certification may be disclosed to the IRS by Holdings and that any false
statements contained herein could be punished by fine, imprisonment, or both.
BOX D
ACCEPTANCE AND ASSIGNMENT BY HOLDINGS
Holdings hereby acknowledges and accepts the assignment and tender of
Partnership Interests as an assignee. Holdings agrees to be bound by all terms
and conditions of the Partnership Agreement, and by its signature below, shall
be deemed to have accepted such terms and conditions. Holdings thereafter
immediately assigns to Telecommunications all right, title and interest to the
Partnership Interests, pursuant to the Offer Documents.
By:
BOX E
ACCEPTANCE BY TELECOMMUNICATIONS
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Telecommunications hereby acknowledges the assignment of general Partnership
Interests by Holdings, and accepts such transfer. Telecommunications further
agrees to become a substituted general partner of the Partnership and hereby
elects, effective as of the Effective Date, to reconstitute the Partnership, to
continue as the general partner of the Partnership and to continue the
Partnership and its business. Telecommunications agrees to be bound by all
terms and conditions of the Partnership Agreement and by its signature below,
shall be deemed to have accepted such terms and conditions.
By:
BOX F
NOTICE OF WITHDRAWAL
The undersigned hereby withdraws all Partnership Interests in the Partnership
previously tendered to Holdings. (PLEASE SIGN EXACTLY AS YOU SIGNED THE TENDER
FORM SENT TO HOLDINGS.)
(Signature)
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Contribution Agreement
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. TENDER, SIGNATURE REQUIREMENTS, DELIVERY. In order to tender Partnership
Interests for exchange the tendering holder of Partnership Interests must
sign at the "X" in the Signature Box of the Contribution Agreement and
insert the holder's correct Taxpayer Identification Number (Federal
Employer Identification or Social Security Number) ("TIN") in the space
provided below the signature. If this Contribution Agreement is signed by
trustees, administrators, guardians, attorneys-in-fact, officers of
corporations, or others acting in a fiduciary or representative capacity,
such persons should so indicate when signing and must submit proper
evidence satisfactory to Holdings of their authority to so act. For
Partnership Interests to be validly tendered, a properly completed and duly
executed Contribution Agreement and any other documents required by this
Contribution Agreement must be received by Holdings prior to or on
the Expiration Date at its address or facsimile number set forth on the
front of this Contribution Agreement. No alternative, conditional, or
contingent tenders will be accepted.
2. TRANSFER TAXES. Holdings will pay or cause to be paid all transfer fees
and taxes if any, payable in respect of Partnership Interests accepted for
payment pursuant to the Exchange Offer.
3. U.S. PERSONS. A holder of Partnership Interests who or that is a United
States citizen or resident alien individual, a domestic corporation, a
domestic partnership, a domestic trust, or a domestic estate (collectively
"United States persons"), as those terms are defined in the Internal
Revenue Code and Income Tax Regulations, should complete the following:
BOX B - SUBSTITUTE FORM W-9. In order to avoid 31% federal income tax
backup withholding the holder must provide to Holdings the holder's correct
Taxpayer Identification Number in the space provided below the signature
line and certify, under penalties of perjury, that such holder is not
subject to such backup withholding. If a correct TIN is not provided,
penalties may be imposed by the Internal Revenue Service ("IRS"), in
addition to the holder being subject to backup withholding. Certain
holders of Partnership Interests (including, among others, all
corporations) are not subject to backup withholding. Backup withholding is
not an additional tax. If withholding results in an overpayment of taxes,
a refund may be obtained from the IRS.
BOX C - FIRPTA AFFIDAVIT. To avoid potential withholding of tax pursuant
to Section 1445 of the Internal Revenue Code, each holder of Partnership
Interests who or that is a United States Person (as defined in Instruction
3 above) must certify, under penalties of perjury, such holder's TIN and
address, and that such holder is not a foreign person. Tax withheld under
Section 1445 of the Internal Revenue Code is not an additional tax. If
withholding results in an overpayment of tax, a refund may be obtained from
the IRS.
4. ADDITIONAL COPIES OF JOINT PROXY AND CONTRIBUTION AGREEMENT. Requests for
assistance or additional copies of the Proxy Statement and this
Contribution Agreement may be obtained from Holdings by calling
(000)000-0000.
