CONTRIBUTION AGREEMENT
This Contribution Agreement (this "Agreement") is made and
entered into as of this _______ day of January, 1996 by and among
Advanced MobileComm, Inc., a Massachusetts corporation ("AMI"),
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, for himself and as trustee for
the Revocable Trust for W.A. ▇▇▇▇▇▇▇ and the Revocable Trust for
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
and ▇▇▇▇▇ ▇▇▇▇▇, individually and as authorized agent for Trunked
Mobile Radio Systems (the "Optionee Sellers," and collectively
with AMI, the "Sellers").
WHEREAS, certain of the Optionee Sellers (or affiliates
thereof) entered into option agreements (the "Option Agreements")
dated as of November 4, 1993 granting to Advanced MobileComm
Southwest Limited Partnership, a Delaware limited partnership
("AMI-SW"), options to acquire, and granting the Optionee Sellers
the right to require AMI-SW to acquire, certain specialized
mobile radio ("SMR") systems and related assets described in the
Option Agreements (the "Option Assets") from the Optionee Sellers
(and certain affiliates) in exchange for partnership interests in
AMI-SW; and
WHEREAS, the Sellers entered into a contribution agreement
(the "Contribution Agreement") dated as of September 5, 1995, as
amended, with Pittencrieff Communications, Inc., a Texas
corporation ("PCI") and Pittencrieff Communications, Inc., a
Delaware corporation ("New PCI"), pursuant to which substantially
all of the assets of AMI-SW and the Option Assets (or the stock
of corporations which own the Option Assets) as well as certain
900 MHz SMR systems operated by it in San Diego (the "San Diego
Systems") will be contributed to New PCI in exchange for shares
of common stock of New PCI (the "New PCI Shares"); and
WHEREAS, in view of the pending transaction with PCI and New
PCI, the Sellers have elected not to consummate the transactions
contemplated by the Option Agreements; and
WHEREAS, the Contribution Agreement requires the Sellers to
make joint and several representations and covenants to PCI and
New PCI with respect to the Option Assets and numerous other
matters and to jointly and severally indemnify New PCI for breach
thereof; and
WHEREAS, each Seller desires to ensure that if he or it is
required to make a payment to New PCI under the indemnity
provisions of the Contribution Agreement with respect to SMR
Pittencrieff Losses for which he or it would not be responsible
if the representations and covenants had been made by the Sellers
severally and not jointly, such Seller shall promptly be
reimbursed such amount by the party that is responsible for the
Pittencrieff Losses; and
WHEREAS, the Contribution Agreement contains certain SMR
channel delivery requirements which are calculated on a
collective basis; and
WHEREAS, the Sellers intend that the New PCI Shares to be
received by them from New PCI shall be allocated, with certain
agreed upon exceptions, among the Sellers based upon the same
percentages as the percentages in which they would have shared
ownership of AMI-SW upon consummation of all of the transactions
contemplated in the Option Agreements (the "Ownership
Percentages"); and
WHEREAS, the Sellers desire to provide for adjustments in
the Ownership Percentages in the event that a Seller fails to
deliver all of the SMR channels described in the Option Agreement
to which such Seller is a party; and
WHEREAS, the Sellers have agreed to place a portion of the
New PCI Shares in escrow to secure their obligations hereunder;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Sellers hereby agree as follows:
SECTION 1
OBLIGATIONS UNDER CONTRIBUTION AGREEMENT
1.1 Terms used herein without definition shall have the
meanings assigned thereto in the Contribution Agreement.
1.2 Nature of Obligations under the Contribution Agreement.
It is acknowledged by each Seller that the Contribution Agreement
requires the Sellers to jointly and severally indemnify New PCI
from and against Pittencrieff Losses (as defined in the
Contribution Agreement) arising from claims described therein.
1.3 Liability to Pay Claims. The Sellers hereby agree as
follows:
(i) Each Seller shall be responsible for making any
indemnity payment required to be made by the Sellers to New
PCI under the Contribution Agreement on account of
Pittencrieff Losses that are attributable to the Option
Assets contributed to New PCI by such Seller.
(ii) If any Seller makes an indemnity payment to New
PCI that is attributable to Pittencrief Losses for which
such Seller would not have been responsible if the
representations, warranties and covenants had been made by
the Sellers to New PCI severally and not jointly, then the
Seller against whom New PCI would have an indemnity claim if
representations, warranties and covenants had been made by
the Sellers to New PCI severally and not jointly shall
promptly upon the demand of the overpaying Seller pay to
such overpaying Seller the amount of such payment. Such
amount shall be paid in immediately available funds in
accordance with the written instructions of the overpaying
Seller.
SECTION 2
ESCROW PROVISIONS
Simultaneously with the closing contemplated under the
Contribution Agreement, each of the Sellers will execute and
deliver the Escrow Agreement attached hereto as Exhibit A.
SECTION 3
ADJUSTMENT OF OWNERSHIP PERCENTAGES
Each Optionee Seller acknowledges, by execution of this
Agreement that he or it is obligated to contribute to New PCI
pursuant to the Contribution Agreement all of the Option Assets
that are the subject of the Option Agreement to which he or it is
a party (or all of the shares of capital stock of any corporation
that owns such Option Assets). The Sellers acknowledge that
except as provided below, the New PCI Shares to be received by
them from New PCI shall be allocated among the Sellers based upon
the Ownership Percentages; and in the event that any Seller does
not contribute to New PCI all of the Option Assets required to be
contributed by him or it under the applicable Option Agreement,
unless an Optionee Seller agrees otherwise with AMI in writing,
the Ownership Percentages of the Sellers (and, consequently, the
New PCI Shares to be received by the Sellers) shall be adjusted
in the same manner as is provided for the adjustment of the
option consideration in Section 2.6 of each Option Agreement, it
being understood that the provisions pertaining to substitution
of channels in Section 3.5 of each Option Agreement shall apply
for the purpose of this calculation. The Sellers acknowledge
that AMI has made and may continue until the Closing to make
loans (the "AMI Loans") to AMI-SW to finance certain acquisitions
and to pay expenses of AMI-SW. The Sellers agree that the AMI
Loans, which are presently $3,100,000 of principal in the
aggregate, to AMI-SW shall be repaid in full at the Closing from
the Transaction Consideration, based upon the trading price of
the common stock of PCI on the five business days prior to the
third day before the Closing before any allocation of the
Transaction Consideration to the Sellers. No adjustments shall
be made with respect to the Transaction Consideration to be paid
to AMI with respect to the transfer to New PCI of the San Diego
Systems or the assets of AMI-SW.
SECTION 4
MISCELLANEOUS
4.1 Termination. This Agreement may not be terminated or
rescinded without the written consent of all parties hereto until
the date of the expiration of the indemnity provisions in the
Contribution Agreement. In any event, such a termination or
rescission shall not affect any liability of a party hereto in
respect of a claim for payment or reimbursement made prior to the
date of such termination or rescission.
4.2 Amendment, Modification and Severability. This
Agreement may not be amended, modified or waived except by a
written agreement signed by the party against whom enforcement of
such amendment, modification or waiver is sought. A waiver of
any term or condition of this Agreement shall not be deemed to be
a further or continuing waiver of any such term or condition. If
any provision of this Agreement shall be invalid, inoperative or
unenforceable, this Agreement shall be reformed and construed as
if such invalid, inoperative or unenforceable provision had never
been contained herein and such provision were reformed so that it
would be valid, operative and enforceable to the maximum extent
permitted.
4.3 Notices. All notices, requests or other communications
required or permitted hereunder shall be given in writing and
delivered by hand or by recognized overnight courier and shall be
deemed to have been delivered on the date of receipt, to the
following addresses: (a) if to the Optionee Sellers, to the
respective addresses set forth on Exhibit B hereto; and (b) If to
AMI, to: Advanced MobileComm, Inc., ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, President, with a copy (which shall not constitute notice)
to: ▇▇▇▇▇▇▇▇ & Worcester, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. or to
such other address as any party may have designated for itself by
written notice to the other in the manner herein prescribed.
4.4 Binding Effect; Assignment; Governing Law, Etc. This
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted
assigns, but this Agreement shall not be assigned by either of
the parties hereto without the prior written consent of the other
parties, except that AMI may assign this Agreement in connection
with its liquidation and dissolution; any assignment made absent
such consent shall be void ab initio. This Agreement and the
legal relations between the parties hereto shall be governed by
and construed in accordance with the laws of The State of Texas
without giving effect to principles of conflicts of laws. This
Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together
shall constitute one and the same instrument. This Agreement
embodies the entire agreement and understanding of the parties
hereto with respect to the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be executed and delivered, effective as of the day
and year first above written.
ADVANCED MOBILECOMM, INC.
By:___________________________
_____
Name:
Title:
______________________________
__
▇▇▇▇▇ ▇▇▇▇▇, for himself and
as authorized agent for
Trunked Mobile Radio Systems
______________________________
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______________________________
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______________________________
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______________________________
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______________________________
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By:___________________________
_____
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, for
himself and
as trustee for the
Revocable Trust for
W.A. ▇▇▇▇▇▇▇ and the
Revocable
Trust for ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
______________________________
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______________________________
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______________________________
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