Exhibit 10.1
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated September 15, 2005 (this "Agreement"), by and
among International Telcell Cellular, LLC, a Delaware limited liability company
(the "Purchaser"), Western Wireless International Georgia Corporation, a
Delaware corporation (the "Seller"), and for purposes of Section 10.1 and
Section 10.6 only, ALLTEL Corporation, a Delaware corporation ("Guarantor").
WHEREAS, upon the terms and subject to the conditions set forth in this
Agreement, the Seller proposes to sell to the Purchaser its 29.59% interest in
Telcell Wireless, LLC, a Delaware limited liability company (the "Company"),
representing the Seller's entire Percentage Interest in the Company, for an
aggregate purchase price of Forty-Three Million United States Dollars
(US$43,000,000).
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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1.1 Definitions. Capitalized terms used, but not defined, herein shall have
the meanings ascribed such terms in the Operating Agreement, dated as of January
2, 1998, by and among the Seller, TWG Georgia, L.L.C., a Washington limited
liability company, and the Purchaser (the "Operating Agreement"). As used in
this Agreement, and unless the context requires a different meaning, the
following terms have the meanings indicated (such definitions to be equally
applicable to both the singular and plural forms of the terms herein defined):
"Affiliate" shall mean any Person who is an "affiliate" as defined in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended. For purposes of this Agreement, neither the Company nor
MagtiCom (or their subsidiaries) shall be deemed to be Affiliates of the Seller.
"Agreement" means this Agreement as the same may be amended, supplemented
or modified from time to time in accordance with the terms hereof.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"Claims" has the meaning set forth in Section 9.1 of this Agreement.
"Closing" has the meaning set forth in Section 2.2 of this Agreement.
"Closing Date" has the meaning set forth in Section 2.2 of this Agreement.
"Company" has the meaning set forth in the recitals to this Agreement.
"Governmental Authority" means the government of any nation, state, city,
locality or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guarantor" has the meaning set forth in the preamble to this Agreement.
"Guaranty" has the meaning set forth in Section 10.1 of this Agreement.
"Indemnified Party" has the meaning set forth in Section 9.3 of this
Agreement.
"Indemnifying Party" has the meaning set forth in Section 9.3 of this
Agreement.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other) or preference, priority,
right or other security interest or preferential arrangement of any kind or
nature whatsoever.
"Litigation" means any action, arbitration, cause of action, lawsuit,
claim, complaint, criminal prosecution, governmental or other examination or
investigation, audit (other than regular audits of financial statements by
outside auditors), hearing, administrative or other proceeding relating to or
affecting a party, its business, its records, its policies, its practices, its
compliance with Requirements of Law, its actions, its assets or the transactions
contemplated by this Agreement.
"Losses" has the meaning set forth in Section 9.1 of this Agreement.
"MagtiCom" has the meaning set forth in Section 3.7 of this Agreement.
"Operating Agreement" has the meaning set forth in the preamble to this
Agreement.
"Person" means any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, Governmental Authority or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
"Pre-Closing Period" has the meaning set forth in Section 5.4(c) of this
Agreement.
"Purchased Interest" has the meaning set forth in Section 2.1 of this
Agreement.
"Purchaser" has the meaning set forth in the preamble to this Agreement.
"Purchaser Indemnified Party" has the meaning set forth in Section 9.1 of
this Agreement.
"Purchaser Indemnifying Party" has the meaning set forth in Section 9.2 of
this Agreement.
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"Purchaser Releasees" has the meaning set forth in Section 8.1 to this
Agreement.
"Requirements of Law" means, as to any Person, any law, statute, treaty,
rule, regulation, right, privilege, qualification, license or franchise or
determination of an arbitrator or a court or other Governmental Authority or
stock exchange, in each case applicable or binding upon such Person or any of
its property or to which such Person or any of its property is subject or
pertaining to any or all of the transactions contemplated or referred to herein.
"Securities Act" has the meaning set forth in Section 4.6 of this
Agreement.
"Seller" has the meaning set forth in the preamble to this Agreement.
"Seller Indemnified Party" has the meaning set forth in Section 9.2 of this
Agreement.
"Seller Indemnifying Party" has the meaning set forth in Section 9.1 of
this Agreement.
"Seller Releasees" has the meaning set forth in Section 8.2 to this
Agreement.
"Taxes" means any federal, state, provincial, county, local, foreign and
other taxes (including, without limitation, income, profits, windfall profits,
alternative, minimum, accumulated earnings, personal holding company, capital
stock, premium, estimated, excise, sales, use, occupancy, gross receipts,
franchise, ad valorem, severance, capital levy, production, transfer,
withholding, employment, unemployment compensation, payroll and property taxes,
import duties and other governmental charges and assessments), whether or not
measured in whole or in part by net income, and including deficiencies,
interest, additions to tax or interest, and penalties with respect thereto, and
including expenses associated with contesting any proposed adjustments related
to any of the foregoing.
ARTICLE II
PURCHASE AND SALE OF PERCENTAGE INTEREST
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2.1 Purchase and Sale of Percentage Interest. Subject to the terms and
conditions herein set forth and in reliance upon the representations, warranties
and agreements contained herein, the Seller agrees to sell to the Purchaser free
and clear of any and all Liens, and the Purchaser agrees to purchase from the
Seller, the Seller's 29.59% limited liability company interest in the Company
for the aggregate purchase price of Forty-Three Million United States Dollars
(US$43,000,000). The interest in the Company being purchased pursuant to this
Section 2.1 is referred to herein as the "Purchased Interest".
2.2 Closing. Subject to the satisfaction or waiver of the conditions set
forth in Article VI, the closing of the sale and purchase of the Purchased
Interest (the "Closing") shall take place at the New York offices of Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, at 10:00 a.m., local time, on the
Business Day upon which the conditions set forth in Article VI shall be
satisfied or waived in accordance with this Agreement (other than those
conditions that can only be satisfied at the Closing), or at such other time,
place and date that the Purchaser and the Seller may agree in writing (the
"Closing Date").
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2.3 Closing Deliveries.
(a) On the Closing Date, the Seller shall deliver to the Purchaser (i)
an assignment of the Purchased Interest in substantially the form attached
hereto as Exhibit A, and (ii) a certificate of the Seller, dated the Closing
Date, as to the incumbency and signature of the officer of the Seller executing
this Agreement and the officer's certificate referenced in Section 6.1(c)
hereof.
(b) On the Closing Date, the Purchaser shall deliver to the Seller (i)
the aggregate purchase price for the Purchased Interest by wire transfer of
immediately available funds to an account designated by the Seller, and (ii) a
certificate of the Purchaser, dated the Closing Date, as to the incumbency and
signature of the officer of the Purchaser executing this Agreement and the
officer's certificate referenced in Section 6.2(c) hereof.
2.4 Transfer Taxes. The Seller and the Purchaser shall bear equal
responsibility for the payment of all state and local sales, documentary and
other state and local Taxes, if any, due as a result of the transactions
contemplated by this Agreement. The Purchaser shall file all necessary Tax
returns and other documents required to be filed with respect to all such Taxes;
provided, that the Seller shall furnish or cause to be furnished to the
Purchaser, upon request, as promptly as practicable, such information and
assistance as is reasonably necessary for the filing of all such Tax returns and
other documents required to be filed with respect to all such Taxes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
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The Seller hereby represents and warrants to the Purchaser as follows:
3.1 Existence and Power. The Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement.
3.2 Authorization; No Contravention. The Seller has been duly authorized to
execute, deliver and perform this Agreement, including, without limitation, to
sell the Purchased Interest to the Purchaser. The consummation of the
transactions contemplated by this Agreement and performance by the Seller of its
obligations hereunder will not result in a breach or violation of, a default
under, or conflict with the Seller's certificate of incorporation or by-laws or
any existing agreement to which it or any of its properties or assets is subject
(including, without limitation, the Operating Agreement).
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3.3 Title to Purchased Interest. The Seller is the lawful owner and holder
of the Purchased Interest and has full power to transfer to the Purchaser good,
valid and marketable title to the Purchased Interest, free and clear of any and
all Liens (other than Liens which may be deemed to exist under the Operating
Agreement or pursuant to applicable United States federal and state securities
laws or laws of the country of Georgia). On the Closing, upon delivery of and
payment for the Purchased Interest hereunder, Purchaser will acquire good, valid
and marketable title to the Purchased Interest, free and clear of any and all
Liens (other than Liens which may be deemed to exist under the Operating
Agreement). Upon completion of the transactions contemplated by this Agreement,
neither the Seller nor any of its Affiliates will own any limited liability
company interest in the Company.
3.4 Governmental Authorization. No authorizations, consents, approvals,
orders, notices, filings, registrations, qualifications and exemptions of, with
or from any United States federal, state or local Governmental Authority are
required to be obtained or made by or on behalf of the Seller in connection with
the execution of this Agreement or the performance of its obligations hereunder.
3.5 Binding Effect. This Agreement has been duly executed and delivered by
the Seller and, assuming due execution and delivery by the Purchaser and the
Guarantor, this Agreement constitutes the legal, valid and binding obligations
of the Seller, enforceable against the Seller in accordance with its terms,
subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws, (b) laws of general applicability relating to or
affecting creditors' rights and (c) general equity principles.
3.6 Litigation. There is no Litigation instituted or pending, or, to the
best of the Seller's knowledge, threatened (or unasserted but which may possibly
be asserted), involving the Seller or any of its Affiliates which is reasonably
likely to prevent the consummation of the transactions contemplated hereby.
3.7 Information. The Seller and its advisors have been furnished with all
materials relating to the business, finances and operations of the Company and
MagtiCom, Ltd., a company organized under the laws of the country of Georgia
("MagtiCom"), and materials relating to the sale of the Purchased Interest which
have been requested by the Seller. The Seller and its advisors have been
afforded the opportunity to ask questions of the Company and MagtiCom relating
to the business, finances and operations of the Company and MagtiCom. The Seller
has sought such accounting, legal and tax advice as it has considered necessary
to make an informed investment decision with respect to its sale of the
Purchased Interest.
3.8 No Finder Fees. Except for Xxxx Telecommunications, Inc., whose fees
shall be the sole responsibility of the Seller, neither the Seller nor any
Affiliate thereof has employed any broker, finder, consultant, intermediary or
any other Person entitled to a fee in connection with this Agreement or the
transactions contemplated hereby and no broker, finder, consultant, intermediary
or any other Person is or shall be entitled to a broker's, finder's or similar
fee or commission in connection with this Agreement or the transactions
contemplated hereby by reason of any agreement with the Seller or any Affiliate
thereof.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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The Purchaser hereby represents and warrants to the Seller as follows:
4.1 Existence and Power. The Purchaser is a limited liability company duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement.
4.2 Authorization; No Contravention. The Purchaser has been duly authorized
to execute, deliver and perform this Agreement, including, without limitation,
to purchase the Purchased Interest from the Seller. The consummation of the
transactions contemplated by this Agreement and performance by the Purchaser of
its obligations hereunder will not result in a breach or violation of, a default
under, or conflict with the Purchaser's organizational documents or any existing
agreement to which it or any of its properties or assets is subject (including,
without limitation, the Operating Agreement).
4.3 Governmental Authorization. No authorizations, consents, approvals,
orders, notices, filings, registrations, qualifications and exemptions of, with
or from any United States federal, state or local Governmental Authority are
required to be obtained or made by or on behalf of the Purchaser in connection
with the execution of this Agreement or the performance of its obligations
hereunder.
4.4 Binding Effect. This Agreement has been duly executed and delivered by
the Purchaser and, assuming due execution and delivery by the Seller and the
Guarantor, this Agreement constitutes the legal, valid and binding obligations
of the Purchaser, enforceable against the Purchaser in accordance with its
terms, subject to (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws, (b) laws of general applicability
relating to or affecting creditors' rights and (c) general equity principles.
4.5 Litigation. There is no Litigation instituted or pending, or, to the
best of the Purchaser's knowledge, threatened (or unasserted but which may
possibly be asserted), involving the Purchaser or any of its Affiliates which is
reasonably likely to prevent the consummation of the transactions contemplated
hereby.
4.6 Private Sale. The Purchaser acknowledges that the purchase and sale of
the Purchased Interest is not being registered under the securities laws of any
state or the Securities Act of 1933, as amended (the "Securities Act"), in
reliance on exemptions from registration requirements of such state securities
laws and the Securities Act.
4.7 Information. The Purchaser and its advisors have been furnished with
all materials relating to the business, finances and operations of Magticom and
all materials relating to the purchase of the Purchased Interest which have been
requested by the Purchaser. The Purchaser has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision with respect to its purchase of the Purchased Interest.
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4.8 No Finder Fees. Neither the Purchaser nor any Affiliate thereof has
employed any broker, finder, consultant, intermediary or any other Person
entitled to a fee in connection with this Agreement or the transactions
contemplated hereby and no broker, finder, consultant, intermediary or any other
Person is or shall be entitled to a broker's, finder's or similar fee or
commission in connection with this Agreement or the transactions contemplated
hereby by reason of any agreement with the Purchaser or any Affiliate thereof.
ARTICLE V
COVENANTS
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5.1 Further Assurances. From the date hereof until the Closing, the parties
shall use their commercially reasonable efforts to consummate the transactions
contemplated herein and to fulfill their obligations hereunder, including,
without limitation, causing to be fulfilled at the earliest practical date the
conditions precedent of the obligations of the parties to consummate the
transactions contemplated hereby as set forth in Article VI. The Seller, from
time to time after the Closing, at the Purchaser's request and expense, will
execute, acknowledge, and deliver to the Purchaser such other instruments of
conveyance and transfer and will take such other actions and execute and deliver
such other documents, certifications, and further assurances as the Purchaser
may reasonably require to effectuate the intent of the transactions contemplated
hereby. Each of the parties hereto will cooperate with the other and execute and
deliver to the other parties hereto such other instruments and documents and
take such other actions (at the expense of the requesting party) as may be
commercially reasonably requested from time to time by any other party hereto as
necessary to carry out, evidence and confirm the intended purposes of this
Agreement.
5.2 Confidentiality. From the date hereof, each party hereto shall not, and
each shall cause its subsidiaries not to, issue any press release or otherwise
make any public announcement or disclosure with respect to this Agreement, the
Purchased Interest or the transactions contemplated hereby without the consent
of the other parties hereto, except where such release, announcement or
disclosure is required under applicable Requirements of Law, in which case the
issuing party shall use its commercially reasonable efforts to consult with the
other parties before issuing any such release or making any such public
statement; provided, however, that nothing in this Agreement shall restrict the
Purchaser or the Seller from disclosing information (a) that is already publicly
available, (b) that may be required or appropriate in response to any summons or
subpoena or in connection with any litigation, provided that such party will use
reasonable efforts to notify the other party in advance of such disclosure so as
to permit such other party to seek a protective order or otherwise contest such
disclosure, and such party will use reasonable efforts to cooperate with the
other party in pursuing any such protective order, (c) to the extent that such
party reasonably believes it appropriate in order to comply with any Requirement
of Law, (d) to such party's officers, directors, shareholders, advisors,
employees, members, partners, controlling persons, auditors or counsel, (e) that
may be required or appropriate under the rules and regulations of any relevant
stock exchange, or (f) to Persons from whom releases, consents or approvals are
required, or to whom notice is required to be provided, pursuant to the
transactions contemplated by this Agreement. In addition to the foregoing,
except as required by applicable Requirements of Law, each of the Seller, each
of its Affiliates and their respective representatives shall not disclose any
confidential information regarding the Company or the Company's subsidiaries and
their respective Affiliates, furnished to it or them by the Purchaser or the
Company or any of their respective Affiliates, whether such confidential
information relates to or is in connection with this Agreement and the
negotiations relating thereto or the business, operations, financial condition
or prospects of the Company or the Company's subsidiaries, and whether disclosed
prior to this Agreement and the negotiations relating thereto or otherwise,
provided, that as used herein, confidential information does not include
information which (i) is or becomes generally available to the public other than
as a result of a wrongful disclosure by the Seller, its Affiliates or their
representatives; (ii) was within the possession of any of them prior to its
being furnished to any of them by or on behalf of the Company, MagtiCom or their
Affiliates, provided that the source of such information is not bound by a
confidentiality agreement, or other contractual, legal, or fiduciary obligation
with respect to such information; (iii) becomes rightfully available to Seller,
its Affiliates or their respective representatives on a non-confidential basis
from a source other than the Company, MagtiCom or their Affiliates, provided
that such source is not bound by a confidentiality agreement or other
contractual, legal, or fiduciary obligation with respect to such information, or
(iv) is independently developed by the Seller, its Affiliates or their
respective representatives without any direct or indirect use of the
confidential information.
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5.3 Payment of MagtiCom Dividend. The Purchaser and the Seller acknowledge
and agree that MagtiCom is not obligated to declare and pay a dividend as a
result of any term or provision of this Agreement.
5.4 Additional Post-Closing Covenants and Agreements.
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(a) For a period of three years after the Closing Date, the Purchaser
shall maintain the books and records of the Company and MagtiCom in existence as
of the Closing Date. Except as otherwise prohibited by applicable Requirements
of Law, the Purchaser may destroy such records after the time period specified
herein, but only after the Purchaser gives ninety days prior written notice to
the Seller and details the contents of the records to be destroyed. The Seller
shall have the option to take possession of such records at its own expense
within ninety days of the date of such notice by the Purchaser.
(b) On and after the Closing Date, the Purchaser shall give the Seller
and its representatives such access as the Seller may reasonably request to the
properties, books, records and employees of the Company and MagtiCom relating to
any period ending on or before or including, the Closing Date, for purposes of
(i) investigating, preparing the defense or prosecution of, prosecuting or
defending any litigation proceeding, or investigation pending, threatened or
anticipated by or against the Seller, except in an action between the parties
hereto; provided that (x) the normal conduct of the business shall not be
disrupted thereby and (y) in the event of any litigation or threatened
litigation between the parties, the foregoing shall in no event be, or be deemed
to be, a waiver by a party of any right to assert the attorney-client privilege
or other applicable privilege, or (ii) other proper purposes consistent with
matters relating to a divested business interest, including, without limitation,
for the preparation and filing of any tax return, statement, report or form and
any audit, litigation or other proceeding with respect to taxes. Subject to the
foregoing, such access shall include, without limitation, assuring the presence
of employees of the Company or MagtiCom, at the Seller's expense, as witnesses
at depositions, hearings or trials.
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(c) On and after the Closing Date, each of the Seller and the
Purchaser shall: (i) assist (and cause their respective Affiliates to assist)
the other party in preparing any Tax returns which such other party is
responsible for preparing and filing and which are related to (A) the sale of
the Purchased Interest pursuant to this Agreement, or (B) any taxable period of
the Company or MagtiCom, or portion thereof, occurring on or before the Closing
Date (the "Pre-Closing Period"); (ii) cooperate fully in responding to audits by
any Governmental Authority of any Tax returns of the Company or MagtiCom for any
Pre-Closing Period; (iii) provide timely notice to the other in writing of any
pending or threatened Tax audits or assessments of the Company or MagtiCom for
any Pre-Closing Period; and (iv) furnish the other with copies of all
correspondence received from any Governmental Authority in connection with any
Tax audit or information request with respect to any Pre-Closing Period.
ARTICLE VI
CLOSING CONDITIONS
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6.1 Conditions To The Obligation of The Purchaser To Close. The obligation
of the Purchaser to purchase the Purchased Interest, to pay the purchase price
therefor at the Closing and to otherwise consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction as
determined by, or waiver by, the Purchaser of the following conditions on or
before the Closing Date:
(a) The representations and warranties of the Seller contained in
Article III hereof shall be true and correct in all material respects at and on
the Closing Date as if made at and on such date.
(b) The Seller shall have performed and complied in all material
respects with all of its agreements set forth herein that are required to be
performed by the Seller on or before the Closing Date.
(c) The Purchaser shall have received a certificate from the Seller,
in form and substance satisfactory to the Purchaser, dated the Closing Date, and
signed by the Chief Executive Officer or Chief Financial Officer of the Seller,
certifying as to the matters set forth in clauses (a) and (b) of this Section
6.1.
(d) There shall not be on the Closing Date any judgment, injunction,
writ, award, decree or order of any nature of a court of competent jurisdiction
or any ruling of any Governmental Authority or any condition imposed under any
Requirement of Law which would, in the reasonable judgment of the Purchaser, (a)
prohibit or restrict (i) the purchase of the Purchased Interest or (ii) the
consummation of the transactions contemplated by this Agreement, (b) subject the
Purchaser to any material penalty or onerous condition under or pursuant to any
Requirement of Law if the Purchased Interest were to be purchased hereunder or
(c) restrict the operation of the business of the Purchaser or the Company as
conducted on the date hereof in a manner that would have a material adverse
effect on the Purchaser or the Company.
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(e) The Purchaser shall have received an opinion of Xxxxxxxx Xxxxxx
Xxxxxx & Xxxxxxx LLP, dated the Closing Date, relating to the transactions
contemplated by or referred to herein, substantially in the form attached hereto
as Exhibit B.
(f) The Purchaser shall have received, on or after September 12, 2005,
a distribution from the Company in an amount equal to Five Million Eight Hundred
Sixty-Five Thousand One Hundred Fifty Three United States Dollars
(US$5,865,153), which amount is equal to the Purchaser's proportionate share of
the Company's proportionate share of a dividend in the aggregate net amount of
Seventeen Million United States Dollars (US$17,000,000) paid by MagtiCom.
6.2 Conditions To The Obligation of The Seller To Close. The obligation of
the Seller to sell the Purchased Interest and to otherwise consummate the
transactions contemplated by this Agreement shall be subject to the satisfaction
as determined by, or waiver by, the Seller of the following conditions on or
before the Closing Date:
(a) The representations and warranties of the Purchaser contained in
Article IV hereof shall be true and correct in all material respects at and on
the Closing Date as if made at and on such date.
(b) The Purchaser shall have performed and complied in all material
respects with all of its agreements set forth herein that are required to be
performed by the Purchaser on or before the Closing Date.
(c) The Seller shall have received a certificate from the Purchaser,
in form and substance satisfactory to the Seller, dated the Closing Date, and
signed by the Chief Executive Officer or Chief Financial Officer of the
Purchaser, certifying as to the matters set forth in clauses (a) and (b) of this
Section 6.2.
(d) There shall not be on the Closing Date any judgment, injunction,
writ, award, decree or order of any nature of a court of competent jurisdiction
or any ruling of any Governmental Authority or any condition imposed under any
Requirement of Law which would, in the reasonable judgment of the Seller, (a)
prohibit or restrict (i) the sale of the Purchased Interest or (ii) the
consummation of the transactions contemplated by this Agreement, (b) subject the
Seller to any material penalty or onerous condition under or pursuant to any
Requirement of Law if the Purchased Interest were to be sold hereunder or (c)
restrict the operation of the business of the Seller as conducted on the date
hereof in a manner that would have a material adverse effect on the Seller.
(e) The Seller shall have received, on or after September 12, 2005, a
distribution from the Company in an amount equal to Two Million Four Hundred
Sixty-Four Thousand Eight Hundred Forty Seven United States Dollars
(US$2,464,847), which amount is equal to the Seller's proportionate share of the
Company's proportionate share of a dividend in the aggregate net amount of
Seventeen Million United States Dollars (US$17,000,000) paid by MagtiCom.
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ARTICLE VII
INTENTIONALLY OMITTED
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ARTICLE VIII
RELEASE
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8.1 Seller Release. The Seller, on behalf of itself and its
representatives, agents, attorneys, employees, shareholders, officers,
directors, subsidiaries, parent companies, Affiliates, partners, successors and
assigns, for and in consideration of good and valuable consideration and the
mutual promises provided for herein, hereby releases and forever discharges from
and after the Closing the Company, the Purchaser and MagtiCom, and their
respective representatives, agents, attorneys, employees, shareholders,
officers, directors, subsidiaries, parent companies, Affiliates, partners,
successors and assigns (the "Purchaser Releasees") of and from any and all
manner of action or actions, causes of action, suits, debts, dues, sums of
money, accounts, losses, costs or expenses (including legal costs and expenses),
liability, reckonings, bonds, bills, specialties, covenants, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims and demands, of any nature whatsoever, whether known or
unknown, fixed or contingent, directly on their behalf, derivatively or in any
other capacity, against the Purchaser Releasees arising from or relating to
Seller's ownership of the Percentage Interest or the business, operations,
management, governance or any other matter related to the Company, MagtiCom or
their subsidiaries, other than any claims that the Seller may have resulting
from or arising out of this Agreement.
8.2 Purchaser Release. The Purchaser, on behalf of itself and its
representatives, agents, attorneys, employees, shareholders, officers,
directors, subsidiaries, parent companies, Affiliates, partners, successors and
assigns, for and in consideration of good and valuable consideration and the
mutual promises provided for herein, hereby releases and forever discharges from
and after the Closing the Seller, and its respective representatives, agents,
attorneys, employees, shareholders, officers, directors, subsidiaries, parent
companies, Affiliates, partners, successors and assigns (the "Seller Releasees")
of and from any and all manner of action or actions, causes of action, suits,
debts, dues, sums of money, accounts, losses, costs or expenses (including legal
costs and expenses), liability, reckonings, bonds, bills, specialties,
covenants, controversies, agreements, promises, variances, trespasses, damages,
judgments, extents, executions, claims and demands, of any nature whatsoever,
whether known or unknown, fixed or contingent, directly on their behalf,
derivatively or in any other capacity, against the Seller Releasees arising from
or relating to Seller's ownership of the Percentage Interest or the business,
operations, management, governance or any other matter related to the Company,
MagtiCom or their subsidiaries, other than any claims that the Purchaser may
have resulting from or arising out of this Agreement.
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ARTICLE IX
INDEMNIFICATION
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9.1 Seller Indemnification. The Seller (the "Seller Indemnifying Party")
agrees to indemnify, defend and hold harmless the Purchaser and its Affiliates
and their respective officers, directors, agents, employees, subsidiaries,
partners, members and controlling persons (each, a "Purchaser Indemnified
Party") to the fullest extent permitted by law from and against any and all
actions, suits, proceedings, claims, complaints, disputes, arbitrations or
investigations or written threats thereof (collectively, "Claims") (including,
without limitation, any Claim by a third party), losses, damages, expenses or
other liabilities (collectively, "Losses") (including reasonable fees,
disbursements and other charges of counsel incurred by the Purchaser Indemnified
Party (excluding, in each case, special, exemplary, punitive or consequential
damages other than any such damages claimed by a third party against a Purchaser
Indemnified Party) resulting from or arising out of any breach of any
representation or warranty, covenant or agreement by the Seller in this
Agreement.
9.2 Purchaser Indemnification. The Purchaser (the "Purchaser Indemnifying
Party") agrees to indemnify, defend and hold harmless the Seller and its
Affiliates and their respective officers, directors, agents, employees,
subsidiaries, partners, members and controlling persons (each, a "Seller
Indemnified Party") to the fullest extent permitted by law from and against any
and all Claims (including, without limitation, any Claim by a third party) and
Losses, (including reasonable fees, disbursements and other charges of counsel
incurred by the Seller Indemnified Party (excluding, in each case, special,
exemplary, punitive or consequential damages other than any such damages claimed
by a third party against a Seller Indemnified Party) resulting from or arising
out of any breach of any representation or warranty, covenant or agreement by
the Purchaser in this Agreement.
9.3 Notification. Each party entitled to indemnification under this Article
IX (an "Indemnified Party") shall, promptly after the receipt of notice of the
commencement of any Claim against such Indemnified Party in respect of which
indemnity may be sought from the Person giving the indemnity under this Article
IX (the "Indemnifying Party"), notify the Indemnifying Party in writing of the
commencement thereof. The omission of any Indemnified Party to so notify the
Indemnifying Party of any such action shall not relieve the Indemnifying Party
from any liability which it may have to such Indemnified Party (a) other than
pursuant to this Article IX or (b) under this Article IX unless, and only to the
extent that, such omission results in the Indemnifying Party's forfeiture of
substantive rights or defenses. In case any such third party Claim shall be
brought against any Indemnified Party, and it shall notify the Indemnifying
Party of the commencement thereof, the Indemnifying Party shall be entitled to
assume the defense thereof at its own expense, with counsel satisfactory to such
Indemnified Party in its reasonable judgment; provided, however, that any
Indemnified Party may, at its own expense, retain separate counsel to
participate in such defense. Notwithstanding the foregoing, in any Claim in
which both the Indemnifying Party, on the one hand, and an Indemnified Party, on
the other hand, are, or are reasonably likely to become, a party, such
Indemnified Party shall have the right to employ separate counsel at the
Indemnifying Party's expense and to control its own defense of such Claim if, in
the reasonable opinion of counsel to such Indemnified Party, either (x) one or
more defenses are available to the Indemnified Party that are not available to
the Indemnifying Party or (y) a conflict or potential conflict exists between
the Indemnifying Party, on the one hand, and such Indemnified Party, on the
other hand, that would make such separate representation advisable; provided,
however, that the Indemnifying Party (i) shall not be liable for the fees and
expenses of more than one counsel to all Indemnified Parties and (ii) shall
reimburse the Indemnified Parties for all of such fees and expenses of such
counsel incurred in any action between Indemnified Parties and any third party,
as such expenses are incurred. The Indemnifying Party agrees that it will not,
without the prior written consent of the Indemnified Party, settle, compromise
or consent to the entry of any judgment in any pending or threatened Claim
relating to the matters contemplated hereby (if any Indemnified Party is a party
thereto or has been actually threatened to be made a party thereto) unless such
settlement, compromise or consent includes an unconditional release of each
Indemnified Party from all liability arising or that may arise out of such
Claim. The Indemnifying Party shall not be liable for any settlement of any
Claim effected against an Indemnified Party without its written consent, which
consent shall not be unreasonably withheld.
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9.4 Limitations. Except in the case of any injunctive relief pursuant to
Section 10.9, the sole and exclusive remedy for any breach or inaccuracy, or
alleged breach or inaccuracy, of any representation or warranty, covenant or
agreement (to be performed between the date hereof and the Closing Date) made by
the parties to this Agreement or otherwise arising from the transactions
contemplated hereby shall be the remedies provided by this Article IX, and the
parties hereby waive any other statutory, equitable or common law rights or
remedies.
ARTICLE X
MISCELLANEOUS
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10.1 Guarantor Guaranty.
(a) The Guarantor hereby unconditionally and irrevocably guarantees to
the Purchaser, as primary obligor and not merely as surety, the performance of,
and compliance with, all obligations, covenants, warranties and undertakings of
the Seller contained in Article IX of this Agreement (the "Guaranty"). The
Guarantor hereby waives promptness, diligence, demand, protest and notice as to
the obligations and covenants guaranteed hereby and acceptance of this Guaranty,
the right to require the Purchaser to exhaust remedies against any other Person
and waives any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Guarantor as a guarantor. The Guarantor
hereby waives all claims of waiver, release, surrender, abstraction or
compromise and all set-offs, counterclaims, cross-claims, recoupments or other
defenses that it may have against the Purchaser. The Guarantor agrees to pay the
costs and expenses in connection with the enforcement of this Guaranty.
(b) The obligations of the Guarantor hereunder are unconditional and
irrevocable and will not be discharged by: (i) any modification of, or amendment
or supplement to, this Agreement; (ii) any furnishing or acceptance of security
or any exchange or release of any security; (iii) any waiver, consent or other
action or inaction or any exercise or non-exercise of any right, remedy or power
with respect to the Seller or any change in the structure of the Seller; (iv)
any insolvency, bankruptcy, reorganization, arrangement, composition,
liquidation, dissolution, or similar proceedings with respect to the Seller; or
(v) any other occurrence whatsoever, except performance in full of all
obligations of the Seller in accordance with the terms and conditions of this
Agreement.
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(c) This Guaranty shall: (i) be binding upon the Guarantor, its
successors and assigns; (ii) inure to the benefit of, and be enforceable by, the
Purchaser and its successors and assigns; and (iii) remain in full force and
effect until the performance in full of all obligations of the Seller and the
Guarantor in accordance with the terms and provisions of this Agreement.
(d) The Guarantor hereby represents and warrants to the Purchaser as
follows:
(i) The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(ii) The Guarantor has been duly authorized to execute, deliver
and perform this Agreement. The consummation of the transactions contemplated by
this Agreement and the performance by the Guarantor of its obligations hereunder
will not result in a breach or violation of, a default under, or conflict with
the Guarantor's organizational documents or any existing agreement to which it
or any of its properties or assets is subject.
(iii) No authorizations, consents, approvals, orders, notices,
filings, registrations, qualifications and exemptions of, with or from any
Governmental Authority are required to be obtained or made by or on behalf of
the Guarantor in connection with the execution of this Agreement or the
performance of its obligations hereunder.
(iv) This Agreement has been duly executed and delivered by the
Guarantor and, assuming due execution and delivery by the Seller and the
Purchaser, this Agreement constitutes the legal, valid and binding obligations
of the Guarantor, enforceable against the Guarantor in accordance with its
terms, subject to (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws, (b) laws of general applicability
relating to or affecting creditors' rights and (c) general equity principles.
10.2 Survival. All of the representations, warranties, covenants and
agreements made by the parties in this Agreement or pursuant hereto in any
certificate, instrument, or document shall survive the execution and delivery of
this Agreement and the consummation of the transactions contemplated by this
Agreement indefinitely.
10.3 Expenses. Except as otherwise provided herein, each of the parties
shall bear and pay all direct costs and expenses incurred by it or on its behalf
in connection with the transactions contemplated hereunder, including fees and
expenses of its own financial or other consultants, accountants and counsel as
well as any broker, finder, consultant, intermediary or other Person it employs
that is entitled to a fee in connection with this Agreement.
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10.4 Notices. All notices, demands and other communications provided for or
permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, facsimile or courier
service:
if to the Seller or the Guarantor:
ALLTEL Corporation
Xxx Xxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
if to the Purchaser:
International Telcell Cellular, LLC
c/o Metromedia International Group, Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxxxx, Esq.
All such notices, demands and other communications shall be deemed to have
been duly given (i) when delivered by hand, if personally delivered; (ii) one
Business Day after being sent, if sent via a reputable nationwide overnight
courier service guaranteeing next business day delivery; (iii) five (5) Business
Days after being sent, if sent by registered or certified mail, return receipt
requested, postage prepaid; and (iv) when receipt is mechanically acknowledged,
if facsimiled. Any party may by notice given in accordance with this Section
10.4 designate another address or Person for receipt of notices hereunder. Any
party may give any notice, request, consent or other communication under this
Agreement using any other means (including, without limitation, personal
delivery, messenger service, first class mail or electronic mail), but no such
notice, request, consent or other communication shall be deemed to have been
duly given unless and until it is actually received by the party to whom it is
given.
10.5 Successors and Assigns; Third Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the successors and permitted
assigns of the parties hereto. Subject to applicable securities laws and the
terms and conditions thereof, the Purchaser may assign any of its rights under
this Agreement to any of its Affiliates, provided that each such assignee shall
make the representations and warranties under Article IV and that Purchaser
shall not be relieved of any liability or obligation hereunder as a result of
such assignment. Neither the Seller nor the Guarantor may assign any of its
rights under this Agreement without the prior written consent of the Purchaser.
No Person other than the parties hereto and their successors and permitted
assigns is intended to be a beneficiary of this Agreement.
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10.6 Amendment and Waiver.
(a) No failure or delay on the part of any party hereto in exercising
any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy.
(b) Any amendment, supplement or modification of or to any provision
of this Agreement, any waiver of any provision of this Agreement, and any
consent to any departure by any party hereto from the terms of any provision of
this Agreement, shall be effective (i) only if it is made or given in writing
and signed by each party hereto and (ii) only in the specific instance and for
the specific purpose for which made or given. Except where notice is
specifically required by this Agreement, no notice to or demand on either the
Seller or the Guarantor in any case shall entitle the Seller or the Guarantor,
respectively, to any other or further notice or demand in similar or other
circumstances.
10.7 GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. The parties hereto
irrevocably submit to the exclusive jurisdiction of the United States District
Court for the Southern District of New York and any court of the State of New
York located in New York City over any suit, action or proceeding arising out of
or relating to this Agreement. To the fullest extent they may effectively do so
under applicable law, the parties hereto irrevocably waive and agree not to
assert, by way of motion, as a defense or otherwise, any claim that they are not
subject to the jurisdiction of any such court, any objection that they may now
or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
10.8 WAIVER OF JURY TRIAL. EACH OF THE SELLER AND THE PURCHASER 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 THE SELLER OR THE PURCHASER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
10.9 Enforcement of Agreement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was 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, this being in addition to any other remedy to
which they are entitled at law or in equity.
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10.10 Interpretations. Neither this Agreement nor any uncertainty or
ambiguity herein shall be conclusively construed or resolved against any party,
whether under any rule of construction or otherwise. No party to this Agreement
shall be considered the draftsman. The parties acknowledge and agree that this
Agreement has been reviewed, negotiated, and accepted by all parties and their
attorneys and shall be construed and interpreted according to the ordinary
meaning of the words used so as fairly to accomplish the purposes and intentions
of all parties hereto. The parties agree that this Agreement has been negotiated
between the parties on an arm's length basis. The parties further agree that
each has obtained or had the opportunity to obtain advice from counsel regarding
this Agreement's meanings and consequences, and that each has signed this
Agreement freely and voluntarily.
10.11 Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
10.12 Entire Agreement. This Agreement, together with the exhibits hereto,
is intended by the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein and
therein. There are no restrictions, promises, representations, warranties or
undertakings, other than those set forth or referred to herein or therein. This
Agreement, together with the exhibits hereto, supersedes all prior agreements
and understandings among the parties with respect to such subject matter.
10.13 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Agreement on the date first written above.
INTERNATIONAL TELCELL CELLULAR, LLC
By: /S/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: Chief Executive Officer
WESTERN WIRELESS INTERNATIONAL GEORGIA
CORPORATION
By: /S/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
ALLTEL CORPORATION hereby executes
this Agreement for purposes of being
bound by Section 10.1 and Section
10.6 only
ALLTEL CORPORATION
By: /S/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive V.P.
