EXHIBIT II
BUSINESS COMBINATION AGREEMENT
AMONG
INTERCEL, INC.,
POWERTEL PCS PARTNERS, L.P.,
THE PARTNERS OF POWERTEL PCS PARTNERS, L.P.
AND
THE STOCKHOLDERS OF CERTAIN OF THE PARTNERS OF
POWERTEL PCS PARTNERS, L.P.
Dated as of
August 23, 1995
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BUSINESS COMBINATION AGREEMENT
THIS BUSINESS COMBINATION AGREEMENT is entered into as of
August 23, 1995 among InterCel, Inc., a Delaware corporation
("InterCel"), Powertel PCS Partners, L.P., a Delaware limited
partnership ("Powertel") (InterCel and Powertel being sometimes
referred to as the "Companies" and individually as a "Company"),
the partners of Powertel specified on Exhibits A and B (the
"Partners" or individually, a "Partner"), and the stockholders of
the Partners specified on Exhibit B (the "Stockholders" or
individually, a "Stockholder").
WHEREAS, the Partners own all of the partnership interests
(the "Partnership Interests") of Powertel; and
WHEREAS, the Stockholders own all of the issued and
outstanding shares of common stock of the Partners set forth
opposite their names on Exhibit B (the "Common Stock" and
WHEREAS, the Partners specified on Exhibit A desire to sell
and InterCel desires to purchase all of the Partnership Interests
specified on Exhibit A at the price and upon the terms and
conditions hereinafter set forth; and
WHEREAS, the Stockholders desire to sell and InterCel desires
to purchase all of the issued and outstanding shares of Common
Stock at the price and upon the terms and conditions hereinafter
set forth; and
WHEREAS, the Board of Directors of InterCel and the Partners
Committee of Powertel have determined that it is advisable that
Powertel be combined with InterCel (the "Business Combination") on
the terms and conditions hereinafter set forth, and the Board of
Directors and the Partners Committee have adopted resolutions
approving this Business Combination Agreement and the transactions
contemplated hereby;
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NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties
hereto hereby agree as follows:
DEFINITIONS
For all purposes of this Business Combination Agreement,
certain capitalized terms specified on Exhibit C shall have the
meanings set forth on Exhibit C, except as otherwise expressly
provided.
2. BUSINESS COMBINATION; EXCHANGE OF PARTNERSHIP INTERESTS
AND COMMON STOCK
2.1. Effective Time
Subject to the provisions hereof, the contribution of
Partnership Interests and Common Stock to InterCel shall become
effective when (a) all of the Partnership Interests to be
transferred to InterCel by the Partners specified on Exhibit A in
exchange for shares of InterCel Common Stock and (b) all of the
number of shares of issued and outstanding Common Stock set forth
opposite the name of each Stockholder on Exhibit B (which
constitute all of the outstanding shares of capital stock of the
Partners set forth opposite the names of the Stockholders on
Exhibit B) to be transferred to InterCel by the Stockholders in
exchange for shares of InterCel Common Stock have been so
transferred (the "Effective Time").
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2.2. Receipt of InterCel Common Stock for Partnership
Interests or Common Stock
In consideration of the Business Combination and subject
to the terms and conditions hereof, (a) all of the Partnership
Interests specified on Exhibit A outstanding immediately prior to
the Business Combination (except for those owned by InterCel PCS
Services, Inc., which shall be extinguished) and (b) all of the
shares of Common Stock issued and outstanding immediately prior to
the Business Combination shall, at the Effective Time, be
contributed to InterCel in exchange for shares of InterCel Common
Stock. Each Partner shall receive the number of shares of InterCel
Common Stock set forth opposite such Partner's name on Exhibit A
and each Stockholder shall receive the number of shares of InterCel
Common Stock set forth opposite such Stockholder's name on Exhibit
B.
3. ADDITIONAL AGREEMENTS, UNDERTAKINGS AND COVENANTS
InterCel, on the one hand, and Powertel, the Partners and
the Stockholders, jointly and severally on the other hand (as
applicable), hereby covenant and agree with each other as follows:
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3.1. Consents and Approvals
3.1.1. General
InterCel, Powertel, the Partners and the Stockholders
shall take all measures reasonably necessary or advisable to secure
such consents, authorizations and approvals of governmental and
supragovernmental authorities and of private persons or entities
with respect to the transactions contemplated by, resulting from or
related to this Business Combination Agreement, and to the
performance of all other obligations of such parties contemplated
hereunder, resulting herefrom or related hereto as may be required
by any applicable statute or regulation of the United States or any
country, state or other jurisdiction or by any provision of bylaws
or certificate or articles of incorporation or by any Agreement of
any kind whatsoever to which InterCel, Powertel, any Partner or any
Stockholder is a party or by which InterCel, Powertel, any Partner
or any Stockholder is bound. InterCel, Powertel, the Partners and
the Stockholders shall (a) cooperate in the filing of all forms,
notifications, reports and information, if any, required or
reasonably deemed advisable pursuant to applicable statutes, rules,
regulations or orders of any governmental or supragovernmental
authority in connection with the transactions contemplated by this
Business Combination Agreement and (b) use their respective good
faith efforts to cause any applicable waiting periods thereunder to
expire and any objections to the transactions contemplated hereby
to be withdrawn before the Closing.
3.1.2. Xxxx-Xxxxx-Xxxxxx
In addition to the obligations set forth in Section
3.1.1, as promptly as practicable following the execution of this
Business Combination Agreement, Powertel, the Partners, the
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Stockholders and InterCel shall complete any filing that may be
required pursuant to Xxxx-Xxxxx-Xxxxxx, or shall mutually agree
that no such filing is required. Powertel, the Partners, the
Stockholders and InterCel shall diligently take (or fully cooperate
in the taking of) all actions, and provide any additional
information, required or reasonably requested in order to comply
with the requirements of Xxxx-Xxxxx-Xxxxxx. InterCel and Powertel
shall each pay one-half of the Xxxx-Xxxxx-Xxxxxx filing fee.
3.1.3. Federal Communications Commission
In addition to the obligations set forth in Section
3.1.1, as promptly as practicable, each of InterCel and Powertel
shall diligently take (and the other parties shall fully cooperate
in the taking of) all actions, and provide all information,
required or reasonably requested in order to obtain prior to the
Closing Date the consent of the Federal Communications Commission
to all of the transactions contemplated by this Business
Combination Agreement.
3.1.4. Stockholders' Meeting
As promptly as practicable following execution of this
Business Combination Agreement, the Board of Directors of InterCel
shall cause to be duly called and held a meeting of its
stockholders for the purpose (among other things) of considering
and approving all actions requiring stockholder approval which are
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required or necessary in connection with the consummation of this
Business Combination Agreement and the transactions contemplated
hereby, and InterCel shall recommend to its stockholders the
approval of all such actions. Each Partner and each Stockholder
shall, and shall use its best efforts to ensure that each of its
Affiliates shall, cast all votes that it may have as a result of
ownership of InterCel Common Stock in favor of approval of all
actions requiring stockholder approval which are required or
necessary in connection with the consummation of this Business
Combination Agreement and the transactions contemplated hereby.
3.2. Operation of Business of the Companies
3.2.1. Preserve Business
Except as expressly agreed to by the other Company, each
Company shall, through the Effective Time, (a) preserve its
business organizations and its present relationships with
customers, suppliers, consultants, employees and any other persons
having business relations with such Company; and (b) maintain all
of its Assets in customary repair and condition.
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3.2.2 Conduct Business in Ordinary Course
Except as contemplated by this Business Combination
Agreement, as expressly agreed to by the other Company, or as
reasonably required to carry out its obligations hereunder, each
Company shall, through the Effective Time, conduct its business
only in the Ordinary Course of Business and, in addition, shall
not: (i) issue any capital stock or partnership interest or any
options, warrants or other rights to subscribe for or purchase any
of its capital stock or partnership interests or any securities
convertible into or exchangeable for its capital stock or
partnership interests other than, in the case of InterCel, as
contemplated by Section 8.7 and issuances and grants in connection
with its stock option and restricted stock plans; (ii) declare, set
aside or pay any dividend or distribution with respect to its
capital stock or partnership interests; (iii) directly or
indirectly redeem, purchase or otherwise acquire any of its capital
stock or partnership interests; (iv) effect a split,
reclassification or other similar change in or of any of its
capital stock or partnership interests; (v) amend its certificate
of incorporation (other than, in the case of InterCel, as
contemplated by Section 3.9) or bylaws or its certificate of
limited partnership or limited partnership agreement; (vi) sell or
otherwise dispose of any interest in any material Asset (other than
in the Ordinary Course of Business); or (vii) violate any Law.
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3.2.3. Notice of Adverse Change
Each Company shall notify the other Company promptly of
any material adverse change in the business, operations, prospects,
condition (financial or otherwise), Assets or liabilities of such
Company, and shall provide information (including, without
limitation, copies of all Documents relating thereto) concerning
all Claims instituted, threatened or asserted against or affecting
such Company, or its business or Assets at law or in equity or
admiralty, before or by any court or governmental authority.
3.2.4. Books of Record and Account; Financial
Statements
Each Company shall keep proper books of record and account
in which true and complete entries will be made of all transactions
in accordance with generally accepted accounting principles applied
on a basis consistent with prior periods, and shall supply to the
other Company quarterly unaudited consolidated balance sheets and
statements of income of such Company, prepared in compliance with
Section 4.5, within 45 days after the end of each quarter, and such
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