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STOCK PURCHASE AGREEMENT
Between
AT&T WIRELESS SERVICES, INC.
and
XXXXXX COMMUNICATIONS CORPORATION
Dated as of November 6, 2000
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of November 6, 2000, between AT&T
Wireless Services, Inc., a Delaware corporation (the "Purchaser"), and Xxxxxx
Communications Corporation, an Oklahoma corporation (the "Company" or
"Seller").
W I T N E S S E T H :
WHEREAS, the Company desires to issue and sell to Purchaser on the
Closing Date (as such term is defined herein) 200,000 shares of its Series A
Convertible Preferred Stock, par value $1.00 per share (the "Shares"), and
the Purchaser, subject to fulfillment of all of the conditions contained in
this Agreement, desires to purchase such Shares in exchange for the Purchase
Price specified herein;
WHEREAS, the parties hereto desire to set forth in writing their
understandings and agreements;
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the parties agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement:
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with that Person. For purposes of
this definition, "control" (including the terms "controlling" and
"controlled") means the power to direct or cause the direction of the
management and policies of a Person, directly or indirectly, whether through
the ownership of securities or partnership or other ownership interests, by
contract or otherwise.
"Agreement" means this Stock Purchase Agreement, as the same may be
amended, modified or supplemented in accordance with the terms hereof.
"Amendment to Stockholder Agreement" means Amendment No. 1 to the
Stockholder Agreement, in the form attached hereto as Exhibit A.
"Applicable Conversion Price" has the meaning given such term in
Section 2.2.
"Applicable Dividend Rate" has the meaning given such term in
Section 2.2.
"Auction" means the auction by the FCC of certain licenses to
provide broadband personal communications services using spectrum in the
broadband C and F blocks, which auction is designated by the FCC as Auction
Number 35 and is currently scheduled by the FCC to begin on December 12, 2000.
"Average Price" has the meaning given such term in Section 2.2.
"Branding Agreement" has the meaning set forth in Section 5.4.
"BTA" has the meaning given such term in the Stockholders Agreement.
"Business Day" means any day other than a Saturday, Sunday or a
legal holiday in New York, New York or any other day on which commercial
banks in New York, New York are authorized by law or governmental decree to
close.
"Certificate of Designation" means the Certificate of Designation of
the Powers, Preferences and Relative, Optional and Other Special Rights of
Series A Convertible Preferred Stock of the Company and Qualifications,
Limitations and Restrictions Thereof, in the form attached hereto as Exhibit
B, upon completion thereof by the insertion of the Applicable Dividend Rate
and the Applicable Conversion Price as provided in Section 2.2.
"Claim" has the meaning set forth in Section 7.4(a).
"Class A Common Stock" means the Class A Common Stock, $.001 par
value per share, of the Company.
"Closing" has the meaning set forth in Section 2.3.
"Closing Date" has the meaning set forth in Section 2.3.
"Closing Price" has the meaning given such term in the Certificate
of Designation.
"Company" has the meaning set forth in the preamble.
"Consents" means all consents and approvals of Governmental
Authorities or other third parties, including under the HSR Act, necessary to
authorize, approve or permit the parties hereto to consummate the
Transactions.
"Conversion Price" has the meaning given such term in the
Certificate of Designation.
"DOJ" means the United States Department of Justice.
"Downpayment Deadline" means the last day for making the downpayment
on PCS Licenses won by a bidder in the Auction under the FCC's rules for such
Auction.
"FCC" means the Federal Communications Commission or similar
regulatory authority established in replacement thereof.
"FCC Conflict" has the meaning given such term in the Stockholders
Agreement.
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"FTC" means the Federal Trade Commission or similar regulatory
authority established in replacement thereof.
"Governmental Authority" means a Federal, state or local court,
legislature, governmental agency (including, without limitation, the United
States Department of Justice), commission or regulatory or administrative
authority or instrumentality.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"Indemnified Party" has the meaning set forth in Section 7.4(a).
"Indemnifying Party" has the meaning set forth in Section 7.4(a).
"X.X. Childs" means the JWC Group Stockholders as that term is
defined in the Stockholders Agreement.
"Law" means applicable common law and any statute, ordinance, code
or other law, rule, permit, permit condition, regulation, order, decree,
technical or other standard, requirement or procedure enacted, adopted,
promulgated, applied or followed by any Governmental Authority.
"License" means a license, permit, certificate of authority, waiver,
approval, certificate of public convenience and necessity, registration or
other authorization, consent or clearance to construct or operate a facility,
including any emissions, discharges or releases therefrom, or to transact an
activity or business, to construct a tower or to use an asset or process, in
each case issued or granted by a Governmental Authority.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, right of first refusal or right of others therein,
or encumbrance of any nature whatsoever in respect of such asset.
"Losses" means in respect of any obligation to indemnify any Person
pursuant to the terms of this Agreement, any losses, claims, taxes, damages,
liabilities, deficiencies, obligations, judgments, settlements (including,
without limitation, settlements with respect to any Governmental Authority)
and out-of-pocket costs and expenses (whether or not arising out of third
party claims), including without limitation interest and penalties, costs of
investigation and reasonable attorneys' fees and disbursements.
"Material Adverse Effect" means a material adverse effect on the
business, financial condition, assets, liabilities or results of operations
of the Person specified and its subsidiaries taken as a whole.
"MTA" has the meaning given such term in the Stockholders Agreement.
"New Preferred" has the meaning set forth in Section 5.5.
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"New York Courts" has the meaning set forth in Section 9.5.
"Oklahoma 5" has the meaning set forth in Section 5.5.
"Operating Agreement" has the meaning set forth in Section 5.3.
"Original Holder" has the meaning set forth in the Certificate of
Designation.
"Person" means an individual, corporation, partnership, limited
liability company, association, joint stock company, Governmental Authority,
business trust, unincorporated organization, or other legal entity.
"PCS License" means a License acquired by the Company or an
Affiliate of the Company in the Auction from the FCC authorizing it to
construct and operate a mobile communications system using the 1850 MHz to
1910 MHz and 1930 MHz to 1990 MHz frequencies, or portions thereof, in a
particular BTA or MTA.
"Purchase Price" has the meaning set forth in Section 2.1.
"Right of First Offer Agreement" means the PCS Transfer Rights
Agreement among the parties specified therein, in the form attached hereto as
Exhibit C.
"Section 7.2 Indemnified Party" has the meaning set forth in Section
7.2.
"Section 7.3 Indemnified Party" has the meaning set forth in Section
7.3.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities and Exchange Commission" includes any governmental body
or agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Seller" has the meaning set forth in the preamble.
"Shares" has the meaning set forth in the first recital.
"Stockholders Agreement" means the Stockholders and Investor Rights
Agreement dated as of January 31, 2000 among the Company, Purchaser and the
other Persons that are parties thereto.
"Trading Days" has the meaning given such term in the Certificate of
Designation.
"Transaction Documents" means the Amendment to Stockholders
Agreement, the Right of First Offer Agreement and the Certificate of
Designation.
"Transactions" means the transactions contemplated by this Agreement.
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When a reference is made in this Agreement to an Article or a
Section, such reference shall be to an Article or a Section of this Agreement
unless otherwise indicated. Unless the context otherwise requires, the terms
defined hereunder shall have the meanings therein specified for all purposes
of this Agreement, applicable to both the singular and plural forms of any of
the terms defined herein. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed
by the words "without limitation." The use of a gender herein shall be deemed
to include the neuter, masculine and feminine genders whenever necessary or
appropriate. Whenever the word "herein" or "hereof" is used in this
Agreement, it shall be deemed to refer to this Agreement and not to a
particular Section of this Agreement unless expressly stated otherwise.
ARTICLE 2
PURCHASE AND SALE OF SECURITIES; CLOSING
Section 2.1. PURCHASE AND SALE
Upon the terms and subject to the conditions hereof and in reliance
upon the representations, warranties and agreements herein contained,
Purchaser agrees to purchase at the Closing, and the Company agrees to sell
and issue to Purchaser at the Closing, (except as otherwise provided in
Section 5.5) the Shares, for the aggregate purchase price (the "Purchase
Price") of Two Hundred Million Dollars ($200,000,000.00), which is equal to
One Thousand Dollars ($1,000.00) per Share, which shall represent,
immediately after Closing, one hundred percent (100%) of the issued and
outstanding shares of Series A Convertible Preferred Stock of the Company.
Section 2.2. DIVIDEND RATE; CONVERSION PRICE
The Company and Purchaser have agreed that the dividend
rate and the Conversion Price applicable to the Shares shall be dependent
upon the average Closing Price of the Class A Common Stock for the five (5)
Trading Days immediately prior to the Closing Date (the "Average Price"). The
Company and Purchaser agree that the dividend rate and Conversion Price
applicable to the Shares shall be the dividend rate and Conversion Price
corresponding to the Average Price set forth on Schedule 2.2 (the "Applicable
Dividend Rate" and "Applicable Conversion Price", respectively); provided,
however, if the Average Price shall be less than $12.00 per share, the
Average Price for purposes of this Agreement shall be $12.00 per share, and
if the Average Price is greater than $22.00 per share, the Average Price for
purposes of this Agreement shall be $22.00 per share. The parties agree that
on the Closing Date the Applicable Dividend Rate and Applicable Conversion
Price shall be properly reflected in the Certificate of Designation filed
with the Secretary of State of Oklahoma. As an illustration, if the Average
Price is $20, the Applicable Dividend Rate shall be 6.55% and the Applicable
Conversion Price shall be $24.30 (appropriately adjusted in the case of the
Applicable Conversion Price for stock splits and stock dividends effected
after the date hereof).
Section 2.3. CLOSING
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Subject to the satisfaction or waiver of each of the conditions to
Closing set forth in Article 6 hereof, the closing of the Transactions (the
"Closing") shall occur on the earlier of (a) the second Business Day prior to
the Downpayment Deadline and (b) March 1, 2001, at the offices of Xxxxxxxx
Xxxxxx Xxxxxx & Xxxxxxx LLP, 875 Third Avenue, New York, New York, at 10:00
a.m. local time or at such other time as the parties shall mutually agree
(the "Closing Date"). At the Closing, the Company shall deliver to Purchaser
a certificate representing the Shares against payment of the Purchase Price
therefor.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
Section 3.1. ORGANIZATION, POWER AND AUTHORITY
(a) It is a corporation duly formed, validly existing and in good
standing under the Laws of its jurisdiction of incorporation and has the
requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
(b) It has the requisite power and authority to execute, deliver and
perform this Agreement, the Transaction Documents and each other instrument,
document, certificate and agreement required or contemplated to be executed,
delivered and performed by it hereunder to which it is or will be a party.
(c) It is duly qualified to do business in each jurisdiction where
the character of its properties owned or held under lease or the nature of
its activities makes such qualification necessary other than any such
jurisdiction in which the failure to be so qualified would not have a
Material Adverse Effect on it or materially adversely affect the Transactions.
(d) Upon approval by its board of directors, this Agreement, and at
Closing the Transaction Documents, will have been duly executed, delivered
and authorized by its board of directors and no other proceedings on its part
which have not been taken (including, approval of its stockholders) will be
necessary to authorize this Agreement or the Transaction Documents or to
consummate the Transactions.
(e) This Agreement has been duly executed and delivered by it and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar Laws affecting or
relating to enforcement of creditors' rights generally and may be subject to
general principles of equity.
Section 3.2. CONSENTS; NO CONFLICTS
Neither the execution, delivery and performance by it of this
Agreement nor the consummation of the Transactions will (a) conflict with, or
result in a breach or violation
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of, any provision of its Restated Certificate of Incorporation or Bylaws; (b)
constitute, with or without the giving of notice or passage of time or both,
a breach, violation or default, create a Lien, or give rise to any right of
termination, modification, cancellation, prepayment or acceleration, under
(i) any Law or License or (ii) any note, bond, mortgage, indenture, lease,
agreement or other instrument, in each case which is applicable to or binding
upon it or any of its assets; or (c) except as set forth on Schedule 3.2,
require any Consent, other than the approval of its board of directors,
except in each case, where such breach, violation, default, Lien, right, or
the failure to obtain or give such Consent would not have a Material Adverse
Effect on it or materially adversely affect the Transactions. To its
knowledge, as of the date hereof, there is no fact relating to it or its
Affiliates that would be reasonably expected to prevent it from consummating
the Transactions or performing its obligations under this Agreement.
Section 3.3. LITIGATION
There is no action, proceeding or investigation pending or, to its
knowledge, threatened against it or any of its properties or assets that
would be reasonably expected to have a material adverse effect on its ability
to consummate the Transactions or to fulfill its obligations under this
Agreement or which seeks to prevent or challenge the Transactions.
Section 3.4. BROKERS
It has not employed any broker, finder or investment banker or
incurred any liability for any brokerage fees, commissions or finder's fees
in connection with the Transactions.
Section 3.5. PRIVATE PLACEMENT
It is acquiring the Shares for its own account with the present
intention of holding such Shares for purposes of investment, and it has no
intention of selling such Shares in a public distribution in violation of the
federal securities laws or any applicable state securities laws. It is an
accredited investor as that term is defined in Rule 501 under the Securities
Act by virtue of part (a)(3) of that rule. Further, it has knowledge and
experience in financial and business matters, it is capable of evaluating the
merits and risks of the prospective investment in the Shares and acknowledges
that the certificates representing the Shares will bear a legend stating that
the Shares have not been registered under the Securities Act and may not be
transferred except pursuant to an effective registration statement or an
exemption from registration under the Securities Act.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
Section 4.1. ORGANIZATION, POWER AND AUTHORITY
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(a) It is a corporation duly organized, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation and has the
requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
(b) It has the requisite power and authority to execute, deliver and
perform this Agreement, the Transaction Documents and each other instrument,
document, certificate and agreement required or contemplated to be executed,
delivered and performed by it hereunder to which it is or will be a party.
(c) It is duly qualified to do business in each jurisdiction where
the character of its properties owned or held under lease or the nature of
its activities makes such qualification necessary other than any such
jurisdiction in which the failure to be so qualified would not have a
Material Adverse Effect on it or materially adversely affect the Transactions.
(d) Upon approval by its board of directors, this Agreement, and at
Closing the Transaction Documents, will have been duly executed, delivered
and authorized by its board of directors and no other proceedings on its part
which have not been taken (including, approval of its stockholders) will be
necessary to authorize this Agreement or the Transaction Documents or to
consummate the Transactions.
(e) This Agreement has been duly executed and delivered by it and
constitutes the valid and binding obligation of it, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar Laws affecting or
relating to enforcement of creditors' rights generally and may be subject to
general principles of equity.
Section 4.2. CONSENTS; NO CONFLICTS
Neither the execution, delivery and performance of this Agreement by
it nor the consummation of the Transactions will (a) conflict with, or result
in a breach or violation of, any provision of its Amended and Restated
Certificate of Incorporation or Bylaws; (b) constitute, with or without the
giving of notice or passage of time or both, a breach, violation or default,
create a Lien, or give rise to any right of termination, modification,
cancellation, prepayment or acceleration, under (i) any Law or License, or
(ii) any note, bond, mortgage, indenture, lease, agreement or other
instrument, in each case which is applicable to or binding upon it or any of
its assets; or (c) except as set forth on Schedule 4.2, require any Consent,
other than the approval of its board of directors (which board approval has
been obtained), except in each case where such breach, violation, default,
Lien, right, or the failure to obtain or give such Consent would not have a
Material Adverse Effect on it or materially adversely affect the
Transactions. To its knowledge, as of date hereof, there is no fact relating
to it or its Affiliates that would be reasonably expected to prevent it from
consummating the Transactions or performing its obligations under this
Agreement.
Section 4.3. LITIGATION
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There is no action, proceeding or investigation pending or, to its
knowledge, threatened against it or any of its properties or assets that
would have a material adverse effect on its ability to consummate the
Transactions to which it is a party or to fulfill its obligations under this
Agreement or which seeks to prevent or challenge the Transactions.
Section 4.4. BROKERS
It has not employed any broker, finder or investment banker or
incurred any liability for any brokerage fees, commissions or finder's fees
in connection with the Transactions.
Section 4.5. VALID ISSUANCE OF SHARES
As of the Closing Date the Shares to be issued to Purchaser
hereunder will have been duly and validly reserved for issuance and
authorized and when issued, sold and delivered in accordance with the terms
hereof will be duly and validly issued, fully paid, nonassessable and free
and clear of any Liens or other third party rights or interests whatsoever
(including without limitation preemptive rights) other than as provided for
in the Stockholders Agreement, as it will be amended by the Amendment to the
Stockholders Agreement. The shares of Seller that Purchaser already owns,
together with the Shares upon consummation of the Transactions, will not
constitute "control shares" as defined by Section 1145 of the Oklahoma
General Corporation Act.
Section 4.6. USE OF PURCHASE PRICE
Seller shall use the Purchase Price for the Shares to finance
acquisitions of licenses, telecommunications assets or stock of license
holders, and for general corporate purposes; provided, however, that no
portion of the Purchase Price shall be used, directly or indirectly, to make
any payments of any kind to X.X. Childs, or any of its Affiliates, or Xxxxxx
XX Limited Partnership, an Oklahoma limited partnership.
Section 4.7. PUBLIC FILINGS
The filings of the Company with the Securities and Exchange
Commission conform, and any post-effective amendments or supplements to such
filings did, when they became effective or were filed with the Securities and
Exchange Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Securities Exchange Act, as
applicable, and the rules and regulations promulgated pursuant thereto and
did not, as of their effective date and as of the applicable filing date with
respect to any post-effective amendments or supplements, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein (in light of the
circumstances under which they were made) not misleading.
Section 4.8. NO MATERIAL ADVERSE CHANGE
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Since the date of the last balance sheet of the Company filed with
the Securities and Exchange Commission pursuant to the Securities Exchange
Act to the date hereof, there has been no material adverse change in the
business, financial condition, assets or operations of the Company and its
subsidiaries taken as a whole.
Section 4.9. DCC PCS, INC.
DCC PCS, Inc. is a wholly-owned subsidiary of the Company. DCC PCS,
Inc. is eligible under the FCC's rules to hold the PCS Licenses.
ARTICLE 5
COVENANTS
Section 5.1. CONSUMMATION OF TRANSACTIONS
Each party shall use all commercially reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable and consistent with applicable law to carry
out all of their respective obligations under this Agreement and to
consummate the Transactions (which efforts shall not include any obligation
of the Company or its Affiliates to bid more than the Company deems
appropriate, in its sole discretion, to acquire PCS Licenses in the Auction),
which efforts shall include, without limitation, the following:
(a) The parties shall use all commercially reasonable efforts to
cause the Closing to occur and the Transactions to be consummated in
accordance with the terms hereof, and, without limiting the generality of the
foregoing, to obtain all necessary Consents including the approval of this
Agreement and the Transactions under the HSR Act and by all Governmental
Authorities, and to make all filings with and to give all notices to third
parties which may be necessary or reasonably required in order for the
parties to consummate the Transactions. Each party shall pay any filing or
comparable fees required to be paid by such party under the HSR Act.
(b) Each party shall furnish to the other party all information
concerning such party and its Affiliates reasonably required for inclusion in
any application or filing to be made by such party or any other party in
connection with the Transactions.
(c) Upon the request of any other party, each party shall forthwith
execute and deliver, or cause to be executed and delivered, such further
instruments of assignment, transfer, conveyance, endorsement, direction or
authorization and other documents as may reasonably be requested by such
party in order to effectuate the purposes of this Agreement.
(d) Nothing in this Agreement shall be construed to require
Purchaser to consummate the Transactions if any Consent by the FCC, FTC or
DOJ expressly would require that it or any of its Affiliates (i) divest or
hold separate any of its assets existing as of the date hereof or (ii)
otherwise take or commit to take any action that limits its freedom of action
in any material respect with respect to any of its businesses, product lines
or assets existing as of the date hereof; provided, however, that this
Section 5.1(d)
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shall not apply to any FCC, FTC or DOJ requirement to Consent for the
Transactions arising from or relating to any actions taken by Purchaser or
its Affiliates after the date hereof.
(e) Each party shall promptly notify the other party in writing when
and if its board of directors has approved this Agreement and the Transaction
Documents.
Section 5.2. AUCTION PARTICIPATION
Neither the Company nor its Affiliates will directly or indirectly
participate in the Auction, except through DCC PCS, Inc., and the Company
will not enter into any commitments or agreements with respect thereto with
any Person other than Purchaser except as expressly provided herein.
Section 5.3. ACCESS TO SPECTRUM
Consistent with applicable FCC requirements concerning the Company's
control of any PCS Licenses issued in the Auction to the Company or an
Affiliate of the Company, promptly after the Downpayment Deadline, the
Company and Purchaser agree to negotiate in good faith an operating agreement
which will provide to Purchaser access to the network to be built by the
Company or its Affiliates on the PCS spectrum in the markets covered by such
PCS Licenses (other than those markets Purchaser and the Company mutually
agree to exclude) (the "Operating Agreement"). Terms of the Operating
Agreement will include a minimum ten year term. Pricing for access to the
network under such Operating Agreement shall be fair and reasonable and
determined given consideration to spectrum, network construction and
operating costs to be incurred by the Company and its Affiliates. In
addition, the pricing, terms and conditions will be such that the Company
will provide access to the network facilities to Purchaser on a priority
basis, consistent with all applicable FCC requirements. The Operating
Agreement will provide that the Company shall construct and operate a PCS
System in the markets covered by such Operating Agreement that is
interoperable with Purchaser's wireless communications systems in other
geographic markets. The Operating Agreement will also set forth mutually
agreeable quality standards and a mutually agreeable build out schedule with
respect to the provision by the Company of PCS wireless services on the
network.
Section 5.4. BRANDING
Consistent with applicable FCC requirements, each of the Company and
Purchaser agree to negotiate in good faith a branding agreement ("Branding
Agreement") promptly after the later of (i) the Closing and (ii) the
Downpayment Deadline. In any event, so long as Purchaser holds at least
100,000 Shares (or the Class A Common Stock acquired upon the conversion
thereof) or 100,000 shares of New Preferred, the Company and its subsidiaries
will not adopt any new brands for its wireless services (other than its
proprietary brands) without Purchaser's consent.
Section 5.5. OKLAHOMA 5
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The Purchaser's ownership of the FCC License for Oklahoma 5 RSA
("Oklahoma 5") would create an FCC Conflict if the Shares were issued to
Purchaser on the date hereof. Purchaser shall use all commercially reasonable
efforts to sell its interest in Oklahoma 5 prior to the Closing Date or
otherwise take action such that an FCC Conflict relating to Oklahoma 5 will
not arise as a result of the purchase of the Shares on the Closing Date. In
the event an FCC Conflict would be created by the purchase of the Shares as
of the Closing Date as a result of Purchaser's ownership or interest in
Oklahoma 5, then, provided all conditions to Closing have or will be
satisfied on the Closing Date (other than obtaining any Consent pertaining to
Oklahoma 5), in lieu of the Purchaser's purchase, and the Company's issuance,
of the Shares on the Closing Date, the Purchaser shall purchase, and the
Company shall issue, $200 million of a new class of the Company's Preferred
Stock ("New Preferred"). The terms of the New Preferred shall be: (a) the
shares of New Preferred shall be non-voting and shall not be convertible by
the holder into other equity securities of the Company, (b) the shares of New
Preferred shall provide for a fixed dividend rate equal to the Applicable
Dividend Rate on the Closing and shall be mandatorily redeemable by the
Company on the tenth anniversary of the date of their issuance, (c) shall, at
the Purchaser's option, be mandatorily exchangeable for Shares (with an
equivalent liquidation value as of the date of such exchange) if upon such
exchange no FCC Conflict would result, and (d) to the fullest extent
possible, consistent with FCC rules and regulations, as similar as possible
to the other principal terms of the Shares.
Section 5.6. CERTAIN ACTIONS
From the date hereof until the Closing, without Purchaser's prior
written consent Seller shall not directly or indirectly undertake any of the
actions that would be prohibited without the approval of the Original Holder
under Section 6(b) of the form of Certificate of Designation set forth as
Exhibit B; provided, however, that Purchaser's consent to such actions shall
not be required if Purchaser is in material default of its obligations under
this Agreement and has failed to cure such default within twenty days after
written notice thereof from Seller.
ARTICLE 6
CLOSING CONDITIONS
Section 6.1. CONDITIONS TO OBLIGATIONS OF ALL PARTIES
The obligation of each of the parties to consummate the Transactions
contemplated to occur at the Closing shall be conditioned on the following,
unless waived by each of the parties at or prior to the Closing:
(a) All Consents by any Governmental Authority required to permit
the consummation of the Transactions, the failure to obtain or make which
would be reasonably expected to have a Material Adverse Effect on Seller or
Purchaser or to materially adversely affect the Transactions shall have been
obtained or made. Without limiting the generality of the foregoing, any
applicable waiting period under the HSR Act shall have expired or been
terminated.
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(b) No preliminary or permanent injunction or other order, decree or
ruling issued by a Governmental Authority, nor any statute, rule, regulation
or executive order promulgated or enacted by any Governmental Authority,
shall be in effect that would impose material limitations on the ability of
any party to consummate the Transactions or prohibit such consummation.
(c) All necessary third parties shall have delivered to the Company
and Purchaser executed counterpart signature pages to each of the Amendment
to Stockholder Agreement and Right of First Offer Agreement.
Section 6.2. CONDITIONS TO OBLIGATIONS OF SELLER
The obligation of Seller to consummate the Transactions contemplated
to occur at the Closing shall be further conditioned upon the satisfaction or
fulfillment, at or prior to the Closing, of the following conditions by
Purchaser, unless waived by Seller at or prior to the Closing:
(a) The representations and warranties of Purchaser contained herein
shall be true and correct in all material respects (except for
representations and warranties that are qualified as to materiality, which
shall be true and correct in all respects), in each case when made and at and
as of the Closing (except for representations and warranties made as of a
specified date, which shall be true and correct as of such date) with the
same force and effect as though made at and as of such time.
(b) Purchaser shall have performed in all material respects all
agreements contained herein or required to be performed by it at or before
the Closing.
(c) An officer of Purchaser shall have delivered to Seller a
certificate, dated the Closing Date, certifying as to the fulfillment of the
conditions set forth in paragraphs (a) and (b) above.
(d) The board of directors or other appropriate governing body of
Seller shall have approved the Transactions.
(e) Purchaser shall have delivered to Seller executed counterpart
signature pages to each of the Amendment to Stockholder Agreement and the
Right of First Offer Agreement.
(f) Purchaser shall have wired to the Company, pursuant to wire
instructions delivered to Purchaser at least three days in advance of the
Closing, the Purchase Price.
(g) All corporate and other proceedings of Purchaser in connection
with the Transactions, and all documents and instruments incident thereto,
shall be reasonably satisfactory in form and substance to Seller, and
Purchaser shall have delivered to Seller such receipts, documents,
instruments and certificates, in form and substance reasonably satisfactory
to Seller which Seller shall have reasonably requested in order to consummate
the Transactions.
13
Section 6.3. CONDITIONS TO THE OBLIGATIONS OF PURCHASER
The obligation of the Purchaser to consummate the Transactions
contemplated to occur at the Closing shall be further conditioned upon the
satisfaction or fulfillment, at or prior to the Closing, of the following
conditions, unless waived by it at or prior to the Closing:
(a) The representations and warranties of Seller contained herein
shall be true and correct in all material respects (except for
representations and warranties that are qualified as to materiality, which
shall be true and correct in all respects), in each case when made and at and
as of the Closing (except for representations and warranties made as of a
specified date, which shall be true and correct as of such date) with the
same force and effect as though made at and as of such time.
(b) Seller shall have performed in all material respects all
agreements contained herein or required to be performed by it at or before
the Closing.
(c) An officer of Seller shall have delivered to Purchaser a
certificate, dated the Closing Date, certifying as to the fulfillment of the
conditions set forth in paragraphs (a) and (b) above.
(d) X.X. Childs shall have waived its preemptive rights with respect
to the Transactions and shall have delivered an executed counterpart of the
Amendment to Stockholders Agreement.
(e) Seller shall have delivered to Purchaser executed counterpart
signature pages to each of the Amendment to Stockholder Agreement and the
Right of First Offer Agreement.
(f) The board of directors or other appropriate governing body of
Purchaser or the appropriate Affiliate thereof shall have approved the
Transactions.
(g) The Certificate of Designation completed in accordance with the
provisions of Section 2.2 shall have been duly executed by the Company and
filed with the Secretary of State of the State of Oklahoma and shall be in
full force and effect under the laws of the State of Oklahoma as of the
Closing.
(h) Purchaser shall have received from outside legal counsel to
Seller a legal opinion reasonably acceptable to Purchaser with respect to the
matters set forth in Sections 4.1, 4.3 and 4.5 hereof.
(i) All corporate and other proceedings of Seller in connection with
the Transactions, and all documents and instruments incident thereto, shall
be reasonably satisfactory in form and substance to Purchaser, Seller shall
have delivered to the Purchaser all such receipts, documents, instruments and
certificates, in form and substance reasonably satisfactory to Purchaser,
which Purchaser shall have reasonably requested in order to consummate the
Transactions.
14
ARTICLE 7
INDEMNIFICATION
Section 7.1. SURVIVAL
The representations and warranties made in this Agreement shall
survive the Closing without regard to any investigation made by any of the
parties hereto until the second anniversary of the Closing and shall
thereupon expire together with any right to indemnification in respect
thereof (except to the extent a written notice asserting a claim for breach
of any such representation or warranty and describing such claim in
reasonable detail shall have been given prior to the expiration of the
applicable survival period to the party which made such representation or
warranty).
Section 7.2. INDEMNIFICATION BY PURCHASER
Purchaser shall indemnify and hold harmless Seller and its
Affiliates, directors, shareholders, officers, employees, agents and/or the
legal representatives of any of them (each, a "Section 7.2 Indemnified
Party"), from and against any and all Losses incurred or suffered by him/her
or it arising out of or resulting from (a) any representation or warranty of
Purchaser contained in this Agreement being untrue in any material respect as
of the date on which it was made or (b) any material default by Purchaser or
any of its Affiliates in the performance of their respective obligations
under this Agreement, except to the extent (but only to the extent) any such
Losses arise out of or result from the gross negligence or willful misconduct
of such Section 7.2 Indemnified Party or its Affiliates.
Section 7.3. INDEMNIFICATION BY SELLER
Seller shall indemnify and hold harmless Purchaser and its
Affiliates, directors, shareholders, officers, employees, agents and/or the
legal representatives of any of them (each, a "Section 7.3 Indemnified
Party"), from and against any and all Losses incurred or suffered by him/her
or it arising out of or resulting from (a) any representation or warranty of
Seller contained in this Agreement being untrue in any material respect as of
the date on which it was made or (b) any material default by Seller or any of
its Affiliates in the performance of their respective obligations under this
Agreement, except to the extent (but only to the extent) any such Losses
arise out of or result from the gross negligence or willful misconduct of
such Section 7.3 Indemnified Party or its Affiliates.
Section 7.4. PROCEDURES
(a) The terms of this Section 7.4 shall apply to any claim (a
"Claim") for indemnification under the terms of Sections 7.2 or 7.3 for
Losses arising out of or relating to matters asserted by third parties. The
Section 7.2 Indemnified Party or Section 7.3 Indemnified Party (each, an
"Indemnified Party"), as the case may be, shall give prompt written notice of
such Claim to the indemnifying party (the "Indemnifying Party") under the
applicable Section, which party may assume the defense thereof, provided that
any delay or failure to so notify the Indemnifying Party shall relieve the
Indemnifying Party of its obligations hereunder only to the extent, if at
all, that it is materially prejudiced by reason of such delay or failure. The
Indemnified Party shall have the right to approve
15
any counsel selected by the Indemnifying Party and to approve the terms of
any proposed settlement, such approval not to be unreasonably delayed or
withheld (unless, in the case of approval of a proposed settlement, such
settlement provides only, as to the Indemnified Party, the payment of money
damages actually paid by the Indemnifying Party and a complete release of the
Indemnified Party in respect of the claim in question). Notwithstanding any
of the foregoing to the contrary, the provisions of this Article 7 shall not
be construed so as to provide for the indemnification of any Indemnified
Party for any liability to the extent (but only to the extent) that such
indemnification would be in violation of applicable law or that such
liability may not be waived, modified or limited under applicable law, but
shall be construed so as to effectuate the provisions of this Article 7 to
the fullest extent permitted by law.
(b) In the event that the Indemnifying Party undertakes the defense
of any Claim, the Indemnifying Party will keep the Indemnified Party advised
as to all material developments in connection with such Claim, including, but
not limited to, promptly furnishing the Indemnified Party with copies of all
material documents filed or served in connection therewith.
(c) In the event that the Indemnifying Party fails to assume the
defense of any Claim within ten Business Days after receiving written notice
thereof, the Indemnified Party shall have the right, subject to the
Indemnifying Party's right to assume the defense pursuant to the provisions
of this Article 7, to undertake the defense, compromise or settlement of such
Claim for the account of the Indemnifying Party. Unless and until the
Indemnified Party assumes the defense of any Claim, the Indemnifying Party
shall advance to the Indemnified Party any of its reasonable attorneys' fees
and other costs and expenses incurred in connection with the defense of any
such action or proceeding. Each Indemnified Party shall agree in writing
prior to any such advancement that, in the event he or it receives any such
advance, such Indemnified Party shall reimburse the Indemnifying Party for
such fees, costs and expenses to the extent that it shall be determined that
he or it was not entitled to indemnification under this Article 7.
(d) In no event shall an Indemnifying Party be required to pay in
connection with any Claim for more than one firm of counsel (and local
counsel) for each of the following groups of Indemnified Parties: (i)
Purchaser, its Affiliates, directors, shareholders, officers, employees,
agents and/or the legal representatives of any of them; and (ii) Seller, its
Affiliates, directors, shareholders, officers, employees, agents and/or the
legal representatives of any of them.
ARTICLE 8
TERMINATION
Section 8.1. TERMINATION
In addition to any other rights of termination set forth herein,
this Agreement may be terminated, and the Transactions abandoned, without
further obligation of any party (except as set forth herein), at any time
prior to the Closing Date:
16
(a) by mutual written consent of the parties;
(b) by either party by written notice to the other party, if the
consummation of the Transactions shall not have occurred by March 31, 2001;
(c) on or after November 11, 2000, by either party, if Purchaser has
not received written notice from Seller that Seller's board of directors has
approved the execution and delivery of this Agreement and, at Closing, the
Transaction Documents, it being agreed that any such written notice if
delivered will constitute irrevocable satisfaction of the condition set forth
in Section 6.2(d);
(d) on or after November 24, 2000, by either party, if Seller has
not received written notice from Purchaser that Purchaser's board of
directors has approved the execution and delivery of this Agreement and, at
Closing, the Transaction Documents, it being agreed that any such written
notice if delivered will constitute irrevocable satisfaction of the condition
set forth in Section 6.3(f);
(e) by either party (provided that such party is not otherwise in
breach of this Agreement) if (i) the other party has breached a material
representation, warranty, covenant or agreement set forth herein, (ii) such
breach would entitle the nonbreaching party not to consummate the
Transactions at the Closing and (iii) the breaching party fails to cure such
breach within sixty (60) days of written notice thereof from the
non-breaching party.
Section 8.2. EFFECT OF TERMINATION
In the event of a termination of this Agreement, neither party
hereto shall have any liability or further obligation to the other party,
except as set forth in paragraph (b) below, and except that nothing herein
will relieve any party from liability for any breach by such party of this
Agreement.
(a) In the event of a termination of this Agreement pursuant to
Section 8.1, all provisions of this Agreement shall terminate, except
Articles 7 and 9.
(b) Except as otherwise expressly provided in this Agreement, all
costs and expenses incurred in connection with this Agreement and the
Transactions shall be paid by the party incurring such expenses.
ARTICLE 9
MISCELLANEOUS PROVISIONS
Section 9.1. AMENDMENT AND MODIFICATION
This Agreement may be amended, modified or supplemented only by
written agreement of each of the parties.
Section 9.2. WAIVER OF COMPLIANCE; CONSENTS
17
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 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. Whenever this Agreement requires or permits consent by or on behalf
of any party hereto, such consent shall be given in writing in a manner
consistent with the requirement for a waiver of compliance as set forth in
this Section 9.2.
Section 9.3. NOTICES
All notices or other communications hereunder shall be in writing
and shall be given (and shall be deemed to have been duly given upon receipt)
by delivery in person against receipt, by facsimile transmission with
confirmation of receipt, or by registered or certified mail (return receipt
requested), postage prepaid, with an acknowledgment of receipt signed by the
addressee or an authorized representative thereof, addressed as follows (or
to such other address for a party as shall be specified by like notice;
provided that notice of a change of address shall be effective only upon
receipt thereof):
If to Purchaser, to:
AT&T Wireless Services, Inc.
0000 000xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Seller, to:
Xxxxxx Communications Corporation
00000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
18
With a copy to:
Xxxxxxx & Xxxxxx, LLP
0000 XxxxXxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 9.4. PARTIES IN INTEREST; ASSIGNMENT
This Agreement is binding upon and is solely for the benefit of the
parties hereto and their respective permitted successors, legal
representatives and permitted assigns. Neither Seller nor Purchaser may assign
its rights and obligations hereunder without the prior written consent of the
other party; provided, however, that Purchaser may, without such consent,
assign its right, title and interest in, to and under this Agreement to a
wholly owned subsidiary of AT&T Corp., but shall remain responsible for its
obligations hereunder. Any assignment in violation of this Section 9.4 shall
be null and void and without any force or effect.
Section 9.5. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to the conflicts of
law principles thereof. The parties hereto hereby irrevocably and
unconditionally consent to submit to the non-exclusive jurisdiction of the
courts of the State of New York and of the United States of America located in
the County, the City and the State of New York (the "New York Courts") for any
litigation arising out of or relating to this Agreement and the Transactions,
waive any objection to the laying of venue of any such litigation in the New
York Courts and agrees not to plead or claim in any New York Court that such
litigation brought therein has been brought in an inconvenient forum.
Section 9.6. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
Section 9.7. INTERPRETATION
The article and section headings contained in this Agreement are for
convenience of reference only, are not part of the agreement of the parties
and shall not affect in any way the meaning or interpretation of this
Agreement.
Section 9.8. ENTIRE AGREEMENT
This Agreement, including the exhibits and schedules hereto and
thereto and the certificates and instruments delivered pursuant to the terms
of this Agreement, embody
19
the entire agreement and understanding of the parties hereto in respect of the
Transactions. There are no restrictions, promises, representations,
warranties, covenants or undertakings, other than those expressly set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such Transactions.
Section 9.9. CONFIDENTIALITY; PUBLICITY
(a) Each of the Company and Purchaser, on behalf of itself and
its affiliates, agrees that it will use its reasonable best efforts to
maintain the confidentiality of all non-public information disclosed to it by
the other or obtained as a result of negotiating or entering into this
Agreement and the Transaction Documents and will not, without the prior
written consent of the disclosing party, use such information other than in
connection with the Transactions, provided, however, that the foregoing
confidentiality obligations do not apply to information that (i) was or
becomes available to the public through no action by the receiving party, (ii)
was or becomes available to such receiving party on a non-confidential basis
or (iii) in the reasonable opinion of legal counsel, must be disclosed
pursuant to Law or the requirements of any national securities exchange;
provided further, however, that in the case of (iii) above where disclosure is
sought pursuant to subpoena, litigation discovery request or other similar
legal process, the disclosing party shall submit the proposed disclosure to
the non-disclosing party, who shall have an opportunity, at its expense, to
contest such disclosure, move for a protective order or otherwise attempt to
narrow the scope thereof to the extent permitted under Law.
(b) So long as this Agreement is in effect, the parties agree to
consult with each other in issuing any press release or otherwise making any
public statement with respect to the Transactions, and no party shall issue
any press release or make any such public statement prior to such
consultation, except as may be required by Law or by the rules of any national
securities exchange.
Section 9.10. SPECIFIC PERFORMANCE
The parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any New York Courts.
Section 9.11. REMEDIES CUMULATIVE
All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise or beginning of the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
Section 9.12. SEVERABILITY
20
Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction. If any court determines that any covenant or any
part of any covenant is invalid or unenforceable, such covenant shall be
enforced to the extent permitted by such court, and all other covenants shall
not thereby be affected and shall be given full effect, without regard to the
invalid portions.
Section 9.13. BENEFICIARIES OF AGREEMENT
The representations, warranties, covenants and agreements expressed
in this Agreement are for the sole benefit of the other parties hereto and the
Section 7.2 Indemnified Parties and Section 7.3 Indemnified Parties and are
not intended to benefit, and may not be relied upon or enforced by, any other
party as a third party beneficiary or otherwise.
21
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
AT&T WIRELESS SERVICES, INC.
By:
-------------------------------
Name:
Title:
XXXXXX COMMUNICATIONS CORPORATION
By:
-------------------------------
Name:
Title:
SCHEDULE 2.2
----------------------------------------------------------------------------------------------------------
Applicable Applicable Dividend
Average Price Premium Conversion Price Rate
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
12 55.5% $18.67 15.00%
----------------------------------------------------------------------------------------------------------
13 52.2% $19.79 14.25%
----------------------------------------------------------------------------------------------------------
14 50.0% $21.00 13.75%
----------------------------------------------------------------------------------------------------------
15 42.6% $21.39 12.00%
----------------------------------------------------------------------------------------------------------
16 35.5% $21.68 10.25%
----------------------------------------------------------------------------------------------------------
17 30.2% $22.14 8.90%
----------------------------------------------------------------------------------------------------------
18 26.6% $22.79 7.95%
----------------------------------------------------------------------------------------------------------
19 23.7% $23.50 7.15%
----------------------------------------------------------------------------------------------------------
20 21.5% $24.30 6.55%
----------------------------------------------------------------------------------------------------------
21 19.7% $25.15 6.05%
----------------------------------------------------------------------------------------------------------
22 18.3% $26.03 5.65%
----------------------------------------------------------------------------------------------------------
Premiums, Conversion Prices and Dividend Rates to be calculated pro-ratably
between Average Prices.
SCHEDULE 3.2
PURCHASER CONSENTS
If necessary, the consent of the Federal Trade Commission and/or the
Department of Justice under the HSR Act
2
SCHEDULE 4.2
COMPANY CONSENTS
Consent of X.X. Childs
If necessary, the consent of the Federal Trade Commission and/or Department of
Justice under the HSR Act
Consent of the Bank of America, N.A., and 50.1% of the participating lenders
under the Amended, Restated and Consolidated Revolving Credit and Term Loan
Agreement, dated as of January 18, 2000, among Xxxxxx Operating Corp., LLC,
Bank of America, N.A. and the participating lenders
3
EXHIBIT A
AMENDMENT TO STOCKHOLDERS AGREEMENT
4
EXHIBIT B
CERTIFICATE OF DESIGNATION
5
EXHIBIT C
RIGHT OF FIRST OFFER AGREEMENT
6
