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EXHIBIT 10.10
EXECUTION COPY
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made as of March 4,
1996 (the "Execution Date"), by and between West Alabama Cellular Telephone
Company, Inc., an Alabama corporation ("Seller"), acting herein through Xxxx
Xxxxx, its President, duly authorized by resolution of the Board of Directors
of said corporation, a certified copy of which is attached hereto, and
Mississippi One Cellular Telephone Company, a Louisiana corporation ("Buyer")
acting herein through Xxxxxx X. Xxxxxxx, its President, duly authorized by
resolution of the Board of Directors of said corporation, a certified copy of
which is attached hereto.
RECITALS
WHEREAS, Seller is the owner of the non-wireline cellular mobile radio
system (the "System") serving the Alabama #3 Rural Service Area #309A--Xxxxx
(the "RSA") and holds licenses bearing the call sign KNKN-716 granted by the
Federal Communications Commission to provide cellular service within the RSA
and to operate microwave equipment in connection with the operation of the
System; and
WHEREAS, consistent with the terms and subject to the conditions set
forth herein, Seller desires to sell, assign, transfer and deliver to Buyer,
and Buyer desires to purchase and accept from Seller, all of Seller's right,
title and interest in and to such licenses and to certain tangible and
intangible assets, including real property, equipment, leasehold interests,
fixtures and improvements, relating to the operation of the System.
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings contained herein, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Seller and Buyer hereby
agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. When used in this Agreement, the following terms
shall have the meanings set forth below:
"Accounts Receivable" shall mean the rights of Seller to payment
for services billed by the Seller and unpaid prior to the Closing Date as
reflected on the billing records of Seller relating to the System, excluding
delinquent accounts that have been reduced to zero on such billing records and
have been submitted to a credit agency for collection.
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"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Contract" means any written or oral contract, lease or other
agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations promulgated thereunder and
published interpretations with respect thereto.
"FCC" shall mean the Federal Communications Commission.
"Governmental Authority" shall mean the United States of America,
any state, commonwealth, territory or possession thereof and any political
subdivision or quasi-governmental authority of any of the same, including,
without limitation, court, tribunals, departments, commissions, boards,
bureaus, agencies, counties, municipalities, provinces, parishes and other
instrumentalities.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
"Law" shall mean any applicable existing statute, ordinance,
rule, regulation or common law obligation.
"Licenses" shall mean all licenses, certificates, consents,
authorizations and approvals from the FCC and any other Governmental Authority
held by Seller in connection with the operation of the System.
"Lien" shall mean any security agreement, financing statement
filed with any Governmental Authority, conditional sale or other title
retention agreement, any lease, consignment or bailment given for purposes of
security, any lien, mortgage, indenture, pledge, option, encumbrance, adverse
interest, constructive trust or other trust, claim, attachment, exception to or
defect in title or other ownership interest (including, without limitation,
reservations, rights of entry, possibilities of reverter, encroachments,
easements, rights-of-way, restrictive covenants, leases, and licenses) of any
kind, which otherwise constitutes an interest in or claim against property,
whether arising pursuant to any Law, Contract or otherwise.
"Litigation" means any actual or threatened claim, action, suit,
hearing, proceeding, arbitration, investigation or other activity or procedure
that could result in a judgment, and any notice of the foregoing.
"Losses" shall mean any claims, losses, liabilities, damages,
Liens, penalties, costs or out-of-pocket expenses of investigation, reasonable
fees and disbursements of counsel and
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other experts, and the cost to any Person making a claim or seeking
indemnification under this Agreement with respect to funds expended by such
Person by reason of the occurrence of any event with respect to which
indemnification is sought, but excluding consequential damages arising from
loss or interruption of business, lost profits opportunities or goodwill, loss
of use of facilities, claims of customers or any cost or expense related
thereto.
"Operating Assets" shall mean, with respect to the System, all
fixed assets and personal property of every type or description related to the
System, including, without limitation, any transmitters/receivers, towers and
antennas, switching and cell site equipment and all other installed items,
vehicles and similar equipment, and all spare parts, accessories, supplies and
other expendables related thereto.
"Other Assets" shall mean, with respect to the System all
accounting data, books and records, customer lists, supplier lists, customer
account information and other tangible and intangible property related to such
System.
"Permitted Liens" means (i) liens for Taxes, assessments and
governmental charges not yet due and payable; (ii) zoning laws and ordinances
similar to Laws; (iii) rights reserved to any Governmental Authority to
regulate the affected property; (iv) as to leased assets, interests of the
lessors thereof and Liens affecting the interests of the lessors thereof; and
(v) as to any parcel of real property, any Liens that do not in any material
respect, individually or in the aggregate, affect or impair the value,
marketability or use thereof as it is currently being used.
"Person" shall mean any person or entity, whether an individual,
trustee, corporation, general partnership, limited partnership, trust,
unincorporated organization, business association, firm, joint venture or
Governmental Authority.
"Tax" or "Taxes" shall mean all federal, state, local or foreign
income, gross receipts, windfall profits, severance, property, production,
sales, use, license, excise, franchise, employment, withholding, transfer,
payroll, value-added or minimum tax, or any other tax, custom, duty or
governmental fee or assessment of any kind whatsoever, together with any
interest, additions or penalties with respect thereto and any interest in
respect of such additions or penalties.
"Tax Return" shall mean any return, report or similar statement
(including any attached schedules) required to be filed with respect to any
tax, including, without limitation, any consolidated federal income tax return,
declaration of estimated tax, claim for refund and information return.
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1.2 List of Additional Definitions. The following is a list of some
additional terms used in this Agreement and a reference to the Section hereof
in which such term is defined:
Term Section
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Assets 2.1
Assumed Liabilities 2.3
CERCLA 3.14
Closing 7.1
Closing Date 7.1
Current Items Amount 2.6
Disclosing Party 10.2
Eligible Accounts Receivable 2.6
Environmental Obligations 3.14
Excluded Assets 2.2
Execution Date Preamble
Expenses 2.5
Final Adjustment Certificate 2.7
Financial Statements 3.5
Indemnitor 8.3
Indemnitee 8.3
Initial Adjustment Certificate 2.7
Purchase Price 2.4
Recipient Party 10.2
Real Property 3.9
RSA Recitals
System Recitals
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1 Purchase of Licenses and Assets. Subject to the terms and
conditions of this Agreement and in exchange for the consideration set forth in
Section 2.5 below, on the Closing Date, Seller shall sell, transfer, assign,
convey and deliver to Buyer, and Buyer shall purchase and accept from Seller,
all of Seller's right, title and interest in and to the Licenses and other
assets and properties, real and personal, tangible and intangible, used by or
useful to Seller's operation of the System as of the Closing Date, including,
without limitation, the real property leasehold interests listed on Schedule
3.9, the Licenses listed on Schedule 3.10, the Contracts listed on Schedule
3.11, and all Accounts Receivable, inventory, Operating Assets and Other Assets
(collectively, the "Assets").
2.2 Excluded Assets. Notwithstanding the provisions of Section 2.1,
the Assets shall not include the following, which shall be retained by Seller
(the "Excluded Assets"):
(a) Cash and cash equivalents;
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(b) Insurance policies and rights and claims thereunder;
(c) Bonds, letters of credit, surety instruments and other
similar items;
(d) All customer deposits and advanced payments held by Seller
as of the Closing Date in connection with the operation of the System;
(e) All claims, rights and interests in and to any refunds of
taxes or fees of any nature, or other claims against third parties
(including collection claims involving delinquent accounts that are
excluded from Accounts Receivable), relating to the operation of the
System prior to the Closing Date;
(f) The account books of original entry, general ledgers and
financial records used in connection with the System;
(g) The minute books, stock records and similar corporate
records of Seller;
(h) Seller's trademarks, trade names, service marks, service
names, logos and similar proprietary rights, other than its license to
use the Cellular One trade name and the Cellular One trademark in the
RSA; and
(i) Any other items described on Schedule 2.2.
2.3 Assumed Liabilities. From and after the Closing Date, Buyer shall
assume, pay, discharge and perform the following obligations and liabilities
(collectively, the "Assumed Liabilities"):
(a) Those obligations and liabilities attributable to periods
after the Closing Date that arise under or with respect to the Assets or
the operation of the System;
(b) Any and all obligations and liabilities attributable to
periods after the Closing Date and arising out of Buyer's ownership of
the Assets and its operation of the System after the Closing Date; and
(c) The obligations and liabilities pertaining to or arising
under the Assets or the operation of the System arising prior to the
Closing Date, to the extent that such obligations and liabilities have
been specifically assumed in writing by Buyer.
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2.4 Retained Liabilities. Seller shall retain and have full
responsibility and obligation with respect to, and shall timely perform and
discharge all responsibilities, liabilities and obligations of Seller arising
out of, in connection with or relating to the use or ownership of the Assets or
the operation of the System attributable to periods ending on or before the
Closing Date, but excluding the Assumed Liabilities (the "Retained
Liabilities").
2.5 Purchase Price; Closing Escrow. As aggregate consideration for
its purchase of the Assets, Buyer shall (a) pay to Seller Seventeen Million
Four Hundred Thousand United States Dollars ($17,400,000) minus to the extent
applicable the aggregate sum of the credits to Buyer described on Schedule 2.5
(the "Purchase Price"), plus or minus the Current Items Amount as set forth in
the Initial Adjustment Certificate, which shall be payable at Closing by wire
transfer of immediately available funds to a bank account specified by Seller,
and (b) assume the Assumed Liabilities. The parties agree that $1,250,000 of
the Purchase Price paid at Closing shall be deposited directly into a closing
escrow account created by and maintained pursuant to the Closing Escrow
Agreement attached hereto as Exhibit 2.5 to be entered into on or before the
Closing Date by Buyer, Seller and the bank therein named.
2.6 Current Items Amount. The Purchase Price shall be adjusted, plus
or minus, by the net amount of the adjustments and prorations effected pursuant
to paragraphs 2.6(a), (b), (c) and (d) (the "Current Items Amount").
(a) Accounts Receivable. Seller shall be entitled to receive
the book value of the Accounts Receivable net of offsets and credits for
barter accounts and net of an adequate reserve for doubtful accounts,
which reserve shall equal the sum of the following amounts: zero percent
(0%) of Accounts Receivable that are not past due, ten percent (10%) of
Accounts Receivable that are thirty (30) or fewer days past due, fifty
percent (50%) of Accounts Receivable that are thirty-one (31) to sixty
(60) days past due, and one hundred percent (100%) of all Accounts
Receivable that are sixty-one (61) or more days past due. For purposes
of making past due calculations under this Section 2.6(a), an Account
Receivable shall be deemed past due when the amount thereof, as set
forth in the corresponding customer billing statement of Seller, has not
been paid as of the first business day after the payment due date
therefor as set forth in such customer billing statement.
(b) Inventory. Seller shall be entitled to an amount equal to
the book value for all cellular telephone units and related components,
spare parts and accessories owned by Seller and either (i) related
solely to the System and maintained in the inventory for such System, or
(ii) related to such System and in the custody of customers of such
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System (on a rented or leased basis) or repair or service personnel.
(c) Advance Payments and Deposits. Buyer shall be entitled to
an amount equal to the aggregate of (i) all deposits of customers of the
System for cellular telephones and other equipment leased by Seller, and
(ii) all payments for services to be rendered by Buyer to customers of
the System after the Closing Date, or for other services to be rendered
by Buyer to other third parties after the Closing Date, to the extent
all obligations of Seller relating thereto are assumed by Buyer at
Closing.
(d) Expenses. As of the Closing Date, expenses of a recurring
nature, and expenses reflected as accounts payable on the accounting
books and records of Seller as of the Closing Date, that are incurred by
Seller to benefit the System and are incurred in the ordinary course of
business (the "Expenses"), including those set forth below, shall be
prorated, in accordance with generally accepted accounting principles,
so that all such Expenses incurred for periods prior to the Closing Date
shall be for the account of Seller, and all such Expenses incurred for
periods after the Closing Date shall be for the account of the Buyer:
(i) Expenses under the Licenses and the Contracts;
(ii) Taxes levied or assessed against any of the Assets
or payable with respect to cellular services and related sales to
the System's customers; and
(iii) Expenses for utilities, municipal assessments,
rents and service charges and other goods and services furnished
to the System.
2.7 Current Items Amount Calculated. The Current Items Amount shall
be estimated in good faith by Seller, and set forth, together with a reasonably
detailed statement of the calculation thereof, in a certificate (the "Initial
Adjustment Certificate") delivered to Buyer not later than three business days
prior to the Closing Date. The Initial Adjustment Certificate shall constitute
the basis on which the Current Items Amount is calculated, and the amount by
which the Purchase Price is adjusted by the Current Items Amount, at Closing.
On or before sixty (60) days after the Closing Date, Buyer shall deliver to
Seller a final calculation of the Current Items Amount calculated as of the
Closing Date, together with such supporting documentation as Seller may
reasonably request, in a certificate (the "Final Adjustment Certificate"),
which shall evidence in reasonable detail the nature and extent of each
adjustment to the Current Items Amount. Not later than fifteen days after the
Final Adjustment Certificate is delivered, Seller or Buyer, as
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appropriate, shall pay to the other an amount equal to the amount by which the
Current Items Amount as set forth in the Final Adjustment Certificate differs
from the Current Items Amount as estimated in the Initial Adjustment
Certificate.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to the Buyer that the following
are true and accurate as of the date hereof (unless otherwise specifically
indicated):
3.1 Due Organization; Power and Authority. Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Alabama. Seller has all requisite power and authority to own and lease
the Assets, including, without limitation the Licenses, and to conduct the
business of operating the System as it is currently being conducted. Schedule
3.1 sets forth the name of, and the number and percentage ownership of
outstanding shares of Common Stock of Seller held by, each shareholder of
Seller.
3.2 Authority. Seller has the requisite power and authority to
execute, deliver and perform this Agreement and all other agreements and
documents to be executed by Seller that are necessary to effectuate and
consummate the transactions contemplated by this Agreement. The execution,
delivery, and performance of this Agreement and the consummation of the
transactions contemplated hereby on the part of Seller have been duly and
validly authorized by all necessary action on the part of Seller. This
Agreement has been duly and validly executed and delivered by Seller and is the
valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or affecting the enforcement of creditors' rights generally and subject to the
qualification that general equitable principles may limit the enforcement of
certain remedies, including the remedy of specific performance.
3.3 No Conflicts. Except as set forth on Schedule 3.3, the execution,
delivery and performance by Seller of this Agreement and all other agreements
and documents to be executed by Seller that are necessary to effectuate and
consummate the transactions contemplated by this Agreement do not (a) conflict
with any provision of Seller's certificate of incorporation or bylaws, (b)
conflict with or violate any Law, (c) constitute a default under (without
regard to requirements of notice, lapse of time, or elections of other Persons,
or any combination thereof), accelerate, or permit the acceleration of the
performance required by any Contract to which Seller is a party or by which the
Assets are bound or affected other than a breach, default or
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acceleration that would not materially impair the ability of Seller to perform
hereunder or that would not have a material adverse effect on the Assets, or
(d) result in the creation or imposition of any Lien on any of the Assets.
3.4 Consents. Except for consents and approvals of the FCC and other
Governmental Authorities and third parties described in Section 5.2 hereof, the
execution and delivery of this Agreement and all other agreements and documents
to be executed by Seller that are necessary to effectuate and consummate the
transactions contemplated by this Agreement will not require any consent,
approval, or authorization of, or the filing of any certificate, notice,
application, report or other document with any Governmental Authority or other
Person, except for such filings and approvals that, if not made or obtained,
would not materially impair the ability of Seller to perform hereunder or that
would not have a material adverse effect on the Assets or the operation of the
System.
3.5 Financial Statements. Seller has delivered to Buyer true and
complete copies of the audited balance sheet and statement of income of Seller
pertaining to the operation of the System as of December 31, 1994, and the
unaudited balance sheet and statement of income of Seller pertaining to the
operation of the System as of September 30, 1995 (the "Financial Statements").
The Financial Statements have been accurately compiled from the books and
records of Seller in accordance with generally accepted accounting principles
and fairly present in all material respects the financial position as of the
dates of, and the results of operations for the periods covered by, such
Financial Statements except for the inclusion of certain accounts receivable in
the accounts receivable balances, the determination of appropriate reserves for
uncollectible accounts receivable and the recognition of revenue related to
such accounts receivable, and subject to the usual and customary year-end
adjustments with respect to the unaudited interim Financial Statements.
3.6 Absence of Adverse Changes. Since September 30, 1995, there has
not been any material adverse change in the condition of the Operating Assets
(taken as a whole) other than normal wear and tear. Since September 30, 1995,
there has been no termination, cancellation, limitation, modification or change
in any Contract listed on Schedule 3.11, and no such change is currently
pending or, to Seller's knowledge, threatened, except for terminations,
cancellations, limitations, modifications or other changes to any such listed
Contract that are described on Schedule 3.6 or that are not, individually or in
the aggregate, material.
3.7 Title and Right to Assets. As of the date hereof, Seller has, and
as of the Closing Date, Seller will have, good title to the Assets, free and
clear of Liens other than Permitted Liens and the Liens described in Schedule
3.7. Upon Closing,
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Buyer will acquire good title and effective possession of the Assets in all
material respects.
3.8 Condition of Operating Assets. All Operating Assets listed in
Schedule 3.8(b) are in good condition and repair, subject to normal wear and
tear. All Operating Assets not listed in Schedule 3.8(b), including those
Operating Assets listed on Schedule 3.8(a) but excluding any Operating Assets
that are Excluded Assets, shall be acquired AS-IS, WHERE-IS, without any
guaranty or warranty as to condition. Except for capacity limitations at the
Demopolis cell site, the Operating Assets are sufficient for the operation of
the System as it is currently operated.
3.9 Real Property. Except as listed in Schedule 3.9, neither Seller
nor any of its shareholders, officers, or directors owns any fee interest in
real property located in Alabama and used in the operation of the System.
Schedule 3.9 contains a list of all non-fee interests in real property owned or
used by Seller in connection with the operation of the System (the "Real
Property"), including, without limitation, leaseholds, easements and rights of
way.
3.10 Licenses. Seller holds all Licenses necessary to operate the
System. Schedule 3.10 lists and identifies (a) all Licenses from the FCC and
(b) all other material Licenses from other Governmental Authorities held by
Seller in connection with the System other than local business permits and
zoning permits. Seller is the exclusive holder of each such License, all of
which are in full force and effect and have not been pledged or otherwise
encumbered, assigned, suspended, modified in any material adverse respect, or
canceled or revoked. Seller has operated the System in compliance with all
terms and conditions of each such License or of any renewals thereof applicable
to it except where the failure to so comply would not have a material adverse
effect on Seller's ownership and use of the Assets or its operation of the
System. There is no proceeding pending or, to the knowledge of Seller,
threatened that affects or could affect the validity of such Licenses. Seller
knows of no impediment (legal, regulatory or otherwise) that could prevent or
preclude transfer of any of such Licenses on the Closing Date pursuant to the
terms of this Agreement.
3.11 Contracts. Schedule 3.11 sets forth a complete list of the
Contracts to which Seller is a party that are material to the operation of the
System, other than Contracts with customers and Contracts that are Excluded
Assets. Except as otherwise identified in Schedule 3.11, (a) each such Contract
is a legal, valid and binding obligation of Seller and is in full force and
effect, (b) Seller has performed in all material respects the obligations
required to be performed by it under each such Contract and is not in, or
alleged to be in, material breach or default under any such Contract, and (c)
no such Contract would
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be violated by consummation or performance of the transactions described herein
without having obtained the prior consent of another party to such Contract.
3.12 Litigation. Except as set forth on Schedule 3.12 hereto, there is
no investigation, claim, proceeding or action pending or, to Seller's
knowledge, threatened against Seller that, if adversely determined, would have
an adverse effect on Seller's ability to perform its obligations hereunder or
have an adverse effect on Seller's ownership of the Assets or its operation of
the System.
3.13 System Coverage: Cell Sites. Seller has (a) the exclusive right
to provide cellular service within the Cellular Geographic Service Area shown
on the System Information Update map filed with the FCC for the call sign
KNKN-716, the call sign assigned to the area designated by the FCC as Alabama
RSA 3 (FCC Market No. 309A) on the "A" frequency, and has not expressly
authorized the incursion or extension into that area of the 32 dBu contours of
any adjacent provider of cellular service operating on the same frequency band
except as described on Schedule 3.13, (b) to date constructed the cellular
sites listed in Schedule 3.13 and (c) filed with the FCC the (CGSA) boundary
map as a System Information Update map and the Xxxxx 0 Xxxxxxxx Xxxx filing,
copies of each of which are attached to Schedule 3.13.
3.14 Environmental Matters.
(a) To the best of Seller's knowledge, Seller is operating and
has operated the System and owned and maintained the Assets in
compliance with, and has not violated in any material respect, Laws
relating to the environment, including, without limitation, applicable
requirements of the Clean Air Act, the Clean Water Act, the Resource
Conservation and Recovery Act (as amended by the Hazardous and Solid
Waste Amendment of 1984), the Safe Drinking Water Act, the Comprehensive
Environmental Response, Compensation and Liability Act, as amended by
the Superfund Amendments and Reauthorization Act of 1986 ("CERCLA"), the
Occupational Health and Safety Act, the Toxic Substances Control Act,
and the state and local counterparts of the foregoing (collectively, the
"Environmental Obligations").
(b) To Seller's knowledge, no condition, circumstance or
activity currently exists or has existed during the period of Seller's
ownership of the Assets and operation of the System, with respect to the
Assets or the System that could result in a claim or recovery by a
Governmental Authority or other Person of damages, costs or expenses
arising from Seller's alleged violation of an Environmental Obligation.
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(c) There are no outstanding orders, decrees or judgments
against Seller or any of the Assets concerning any violation of an
Environmental Obligation or any public health, safety or land use
matter, including, without limitation, the emission, discharge or other
release of a Hazardous Substance into the environment or work place, or
the management of Hazardous Substances. For purposes of this Section
3.14, "Hazardous Substance" shall have meaning ascribed to such term
under CERCLA.
(d) Seller has not generated, manufactured, refined,
transported, treated, stored, handled, disposed, transferred, produced
or processed, and has no knowledge of the actual or potential release,
spill, leakage or discharge of, any Hazardous Substance (including any
petroleum-based or acid-based materials used in generators or batteries
at Seller's cell sites) at any parcel of property used in connection
with the operation of the System that reasonably could be expected to
result in a claim or recovery by a Governmental Authority or other
Person of damages, costs or expenses arising from Seller's alleged
violation of an Environmental Obligation.
3.15 Insurance. Seller maintains insurance policies for the System in
such amounts and against such losses or casualties as are described on Schedule
3.15.
3.16 Finders and Brokers. Except for Seller's engagement of Xxxxxxxxxx
Capital Corporation, the fees of which shall be paid by Seller, Seller has not
incurred any obligation or liability, contingent or otherwise, for brokerage or
finders' fees or agents' commissions or other like payments in connection with
this Agreement or the transactions contemplated hereby, and Seller shall
indemnify and hold Buyer harmless against and with respect to any such
obligation or liability based in any way on any agreement, arrangement or
understanding claimed to have been made by Seller with any broker, finder or
agent.
3.17 Tax Matters. Except as disclosed on Schedule 3.17, Seller has
timely filed all Tax Returns to be filed by it as of the date of this
Agreement, and all such Tax Returns are true, complete and correct in all
material respects and disclose all Taxes required to be paid in respect of the
Assets and in connection with the operation of the System, and, except as set
forth on Schedule 3.17, no audit of any Tax Return and no action, suit,
investigation, claim or assessment by any taxing authority is pending, proposed
or, to Seller's knowledge, threatened against Seller with respect to the
operation of the System. Except as disclosed on Schedule 3.17, all Taxes shown
on such Tax Returns, and all Taxes that have become due pursuant to any
assessment by a Governmental Authority, have been fully paid, or adequate
reserves or allowances have been set up therefor and are reflected on the
Financial Statements referred to in Section 3.5
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hereof. Seller is not a "foreign person," as defined by Section 1445 of the
Code, nor is it subject to backup withholding.
3.18 Employees.
(a) Schedule 3.18 lists all of Seller's employees who provide
services to the System and, for each such employee, his or her title or
job description and annual compensation and rate of pay, and the
applicability to him or her of any collectively bargained or other
employment agreement.
(b) As of the Effective Date, Seller employed fewer than
twenty-five (25) full-time employees. Seller is not required to take
any action under the Workers Adjustment and Retraining Notification Act
in connection with the transactions contemplated by this Agreement.
(c) Seller is not a party to or, to Seller's knowledge,
affected or threatened by any dispute or controversy pertaining to any
collective bargaining agreement or union organizing effort or
representation election.
3.19 Employee Benefits. Seller has not maintained and currently does
not maintain any employee benefit or welfare benefit plan within the meaning of
Sections 401(a) and 501(a) of the Code. Seller does not maintain and is not
required to make contributions to, and has never maintained or been required to
make contributions to, any employee benefit or welfare benefit plan within the
meaning of Section 3(3) of ERISA for the benefit of any of its employees.
Seller is not and has never been obligated to contribute to any "multiemployer
plan" or "multiple employer plan" as such terms are defined in Section 4001(a)
(3) of ERISA.
3.20 Compliance with Laws. Except as set forth on Schedule 3.20,
Seller is in compliance with all Laws applicable to the Assets and the
operation of the System, except where the failure to comply with such Laws
would not, individually or in the aggregate, have a material adverse effect on
the Assets taken as a whole or the operation of the System, and no written
notice or warning from any Governmental Authority with respect to any failure
or alleged failure by Seller to comply with any Law has been received by
Seller.
3.21 Cure. For all purposes under this Agreement, except for
intentional misrepresentations or known omissions, the existence or occurrence
of any events or circumstances that constitute or cause a breach of a
representation or warranty of Seller made in this Agreement (including, without
limitation, the schedules hereto) on the date such representation or warranty
is made shall not constitute a breach of such representation or
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warranty if such event or circumstance is cured on or prior to the Closing
Date.
3.22 FCC Matters. Seller is legally qualified under all applicable FCC
regulations to be the holder of the Licenses issued by the FCC and to receive
the FCC's consent to assign the Licenses. The FCC granted the application to
assign to Buyer (i) the License of Seller for Station KNKN-716 effective
December 15, 1995; and (ii) Seller's microwave Licenses effective January 17,
1996.
3.23 Intellectual Property. Except as set forth on Schedule 3.23,
Seller has no patents, copyrights, trade names, trademarks, service marks, or
other such names, or marks or applications therefor and has not operated the
System under any corporate, trade or fictitious name other than the current
corporate and fictitious names. Except for matters of general applicability to
the telecommunications industry, there are no pending or threatened claims of
infringement by Seller upon the rights of any owner of intellectual property.
3.24 Accounts Receivable. The Accounts Receivable have been validly
obtained in the ordinary course of business and are subject to no offset or
reduction, except as provided under Section 2.6(a).
3.25 Articles of Incorporation and Bylaws. Appended to Schedule 3.25
are true and complete copies of the Articles of Incorporation and Bylaws of
Seller, as the same are currently in effect.
3.26 Full Disclosure. No representation, warranty or statement made by
or on behalf of Seller in this Agreement or the Schedules attached hereto, or
in the certificates or other closing documents to be delivered to Buyer or its
representatives at Closing, contains or will contain any untrue statement of
material fact or omits or will omit to state a material fact required to be
stated herein or therein or necessary to make the statements contained herein
or therein not misleading in any material respect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller that as of the date
hereof (unless otherwise specifically indicated):
4.1 Due Organization; Power and Authority. Buyer is (a) a corporation
duly organized, validly existing and in good standing under the laws of the
State of Louisiana, and (b) at and as of Closing will be duly qualified and in
good standing as a foreign corporation in Alabama and in each other
jurisdiction where the
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properties owned, leased or operated, or the business conducted, by it requires
such qualification, except where a failure to so qualify, either singly or in
the aggregate, would not have a material adverse effect on the financial
condition, assets, business, prospects or results of operations of Buyer.
4.2 Authority. Buyer has the requisite power and authority to
execute, deliver and perform this Agreement and all other agreements and
documents to be executed by Buyer that are necessary to effectuate and
consummate the transactions contemplated by this Agreement. The execution,
delivery, and performance of this Agreement and the consummation of the
transactions contemplated hereby on the part of Buyer have been duly and
validly authorized by all necessary action on the part of Buyer. This Agreement
has been duly and validly executed and delivered by Buyer and is the valid and
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights generally and subject to the qualification
that general equitable principles may limit the enforcement of certain
remedies, including the remedy of specific performance.
4.3 No Conflicts; Required Consents. The execution, delivery and
performance by Buyer of this Agreement and all other agreements and documents
to be executed by Buyer that are necessary to effectuate and consummate the
transactions contemplated by this Agreement do not (a) conflict with any
provision of Buyer's certificate of incorporation or bylaws, (b) conflict with
or violate any Law, (c) constitute a default under (without regard to
requirements of notice, lapse of time, or elections of other Persons, or any
combination thereof), accelerate, or permit the acceleration of, the
performance required by any Contract to which Buyer is a party or by which
Buyer's assets are bound or its business and operations affected other than a
breach, default or acceleration that would not impair the ability of Buyer to
perform hereunder, or (d) require (with the exception of (i) the notifications
and waiting period, if applicable, required under the HSR Act and (ii) the
filings required to be made with, and the approval of, the FCC) any consent,
approval or authorization of, or the filing of any certificate, notice,
application, report or other document with, any Person, except those filings
and approvals that, if not made or obtained, would not impair the ability of
Buyer to perform hereunder.
4.4 Litigation. There is no investigation, claim, proceeding or
action pending or, to Buyer's knowledge, threatened against Buyer that, if
adversely determined, would have an adverse effect on Buyer's ability to
perform its obligations hereunder.
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4.5 Brokers. Buyer has not incurred any obligation or liability,
contingent or otherwise, for brokerage or finders' fees or agents' commissions
or other like payment in connection with this Agreement or the transactions
contemplated hereby, and Buyer shall indemnify and hold Seller harmless against
and with respect to any such obligation or liability based in any way on any
agreement, arrangement or understanding claimed to have been made by Buyer with
any broker, finder or agent.
4.6 Qualification. Buyer will be qualified under the Communications
Act of 1934, as amended, and all FCC rules and regulations, to be the assignee
of the Licenses. Buyer has not taken, and will not take prior to the Closing
Date, any action to disqualify itself under the FCC's rules and regulations
from acquiring control of such Licenses.
4.7 Financial Capability. Buyer has the financial resources available
to close the transactions contemplated by this Agreement without financing that
is subject to any material contingency.
4.8 Effect of Buyer's Due Diligence. Buyer represents that it is a
sophisticated entity that was advised by knowledgeable counsel, and that by the
Closing Date it will have conducted its own independent review and evaluation
of the Assets and the System. Accordingly, Buyer warrants and agrees that (a)
except for the representations and warranties of Seller set forth in this
Agreement and the Schedules hereto and other agreements to be executed by Buyer
and Seller to effectuate and consummate the transactions contemplated by this
Agreement, Buyer has not relied and will not rely upon any document or written
or oral information furnished to or discovered by it or its representatives,
including, without limitation, any financial data other than the Financial
Statements, and (b) there are no representations or warranties by or on behalf
of Seller or its representatives except for those expressly set forth in this
Agreement and in any other written agreement entered into with Seller in
connection with this Agreement.
4.9 HSR Act. The "ultimate parent entity" (as defined in 16 C.F.R.
Section 801.11 (1992)) of Buyer and entities that such ultimate parent entity
controls directly or indirectly do not have, in the aggregate, "annual net
sales" (as defined in 16 C.F.R. Section 801.11 (1992)) or "total assets" (as
defined in 16 C.F.R. Section 801.11 (1992)) of $100,000,000 or more.
ARTICLE V
ACTIONS PRIOR TO CLOSING
5.1 Control of System. Seller and Buyer agree that Buyer shall not,
prior to the Closing Date, directly or indirectly control, supervise or direct
the operation of the System, if the
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effect thereof would be to violate the rules and regulations of the FCC. Seller
will continue at all times prior to the Closing Date to control, supervise and
direct the operation of the System to the fullest extent necessary to avoid any
such violation until the Closing has occurred.
5.2 Required Consents. Seller and Buyer each will use its
commercially reasonable efforts to obtain all consents and approvals of Persons
required to permit the consummation of the transactions contemplated hereby,
including all consents required pursuant to the Contracts listed in Schedule
3.11, the consents and approvals of the FCC, any necessary and timely approval
of the Department of Justice or the Federal Trade Commission pursuant to the
provisions of the HSR Act, if applicable, and any other necessary approval or
consent of any other Person that is required for the consummation of the
transactions contemplated hereby. If not filed prior to the Execution Date,
then as soon as practicable thereafter, Seller and Buyer shall, if required,
prepare and file in compliance with the HSR Act proper pre-merger notification
forms and affidavits in connection with the transactions contemplated hereby.
Seller and Buyer further agree to cooperate in good faith to expeditiously and
diligently prosecute such applications to a favorable conclusion. Each of
Seller and Buyer shall bear its own expenses in preparing any of such filings,
including, without limitation, any fees required to be paid by it in connection
therewith. If any Governmental Authority shall challenge the transactions
contemplated hereby, or request any additional filings or information, then
Seller or Buyer, as appropriate, shall use all commercially reasonable efforts
promptly either to contest such challenge or to make or provide any such filing
or information.
5.3 Cooperation in Obtaining Consents. Seller and Buyer each will
take reasonable steps requested by the other to secure the consents and
approvals referred to in Section 5.2. Each party will afford to the other party
the opportunity to review, approve and revise the form in which such consents
and approvals will be requested prior to the delivery of such request to the
Person whose consent is sought, and neither party shall accept or agree to
accede to any modifications or amendments to, or any conditions to the
assignment of, any of the Licenses, Contracts or Real Property of Seller that
may adversely affect either Seller's or Buyer's ownership, as appropriate, of
the Assets or operation of the System.
5.4 Employee Matters.
(a) Seller shall terminate all of its employees with respect to
the operations of the System upon Closing. Seller shall be responsible
for and shall cause to be discharged and satisfied in full all amounts
owed to any employee through the Closing Date, including wages, salaries
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and any other compensation or payments due on account of such
termination.
(b) Buyer has no obligation to employ any of Seller's
employees, and Seller shall not make any representation to the contrary
to any of its employees. Buyer intends and shall be permitted to
interview or otherwise contact Seller's employees regarding future
employment; provided that Buyer shall not attempt to contact any of
Seller's employees regarding the transactions contemplated by this
Agreement or employment with Buyer without Seller's consent, which
consent shall not be withheld unreasonably, and Seller's contact and
communications with Seller's employees shall not unreasonably interfere
with the operations of the System.
(c) Notwithstanding subsection (a) of this Section 5.4, Buyer
shall recognize the term of service with Seller of any employee of
Seller hired by Buyer in determining such employee's benefits or rights
thereto under any health and life insurance plan, long-term and
short-term disability coverage, and all vacation, retirement and other
employment plans offered by Buyer to its employees.
5.5 Conduct of Business. From the Execution Date until the Closing
Date Seller agrees to operate and manage the business of the System in the
usual and ordinary course consistent with past practice and to act consistent
with the following provisions:
(a) Maintain Assets. Seller will maintain the Operating Assets
in good repair, working order and condition, except for obsolescence,
ordinary wear and tear or casualty loss or damage; provided, that Seller
(x) will use its commercially reasonable efforts to replace or repair
prior to Closing any Operating Asset that is damaged or destroyed on
account of a casualty or provide Buyer with all insurance proceeds, if
any, received by Seller as a result of such damage or destruction, and
(y) shall not otherwise be obligated to make any capital expenditure
from and after the Execution Date except as may be mutually agreed upon
in writing by Buyer and Seller. Seller will (i) use commercially
reasonable efforts to maintain the Licenses in full force and effect,
and (ii) maintain its books, records, and accounts with respect to the
Assets and the operation of the System in the usual, regular, and
ordinary manner on a basis consistent with past practices.
(b) Incurring Obligations. Without the prior written consent
of Buyer, which consent may be withheld at Buyer's sole discretion,
Seller will not (i) amend, supplement, terminate, or otherwise modify in
any material respect any Contract identified in schedule 3.11, (ii)
enter into any new Contract or series of related Contracts that will be
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assigned to and assumed by Buyer at Closing that either creates an
obligation in excess of $10,000 or that cannot be terminated without
penalty within 31 days of providing notice of termination thereof or
(iii) increase any employee's compensation or benefits other than
regular merit review salary increases consistent with past practice and
other than special retention incentive cash bonus compensation and cash
severance benefits.
(c) Outstanding Liabilities. Except as and to the extent
described on Schedule 5.5(c), or as otherwise provided in this
Agreement, all outstanding liabilities and obligations of Seller,
secured or unsecured, including, without limitation, Tax liabilities,
but excluding such liabilities and obligations that Seller is reasonably
challenging the validity of, either will be paid, to the extent
appropriate, on or before the Closing Date if then due or payable or
will be included as Expenses pursuant to Section 2.6(d).
(d) Maintenance of System Relations. Seller shall use
commercially reasonable efforts to preserve the current community
relations and business organization of the System, including the
preservation of existing relationships with suppliers having business
with Seller pertaining to the System and, except as otherwise provided
in Section 5.5(g) and Schedule 5.5(g), roaming partners of the System.
(e) Sale of Assets. Seller shall not sell, assign, transfer,
lease, mortgage, pledge or subject to a Lien (other than a Permitted
Lien or Liens described on Schedule 3.7) or otherwise encumber any of
the Assets other than in the ordinary course of business.
(f) Inventory Management. Seller shall not manage equipment
inventories or other supplies other than in the ordinary course of
business.
(g) Customer Policies. Except as provided in Schedule 5.5(g),
Seller shall not deviate from established policies and practices
concerning credit verification, subscriber disconnects, collections,
agent programs, roaming contracts, sales commissions, xxxxxxxx, and
minimum terms for customer contracts.
(h) Ordinary Course. Seller shall not enter into any
transaction other than in the ordinary course.
5.6 Exclusive Dealing. Prior to the Closing Date or the termination
of this Agreement, Seller shall not, directly or indirectly, through an
investment banker, another representative or otherwise, entertain any proposal
or inquiry from or negotiate with any Person other than Buyer regarding the
following:
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(a) The merger or consolidation of Seller with any Person;
(b) The direct or indirect acquisition of the Assets by; any
Person; or
(c) The acquisition of direct or indirect beneficial ownership
of Seller or any capital stock issued by Seller by any Person.
5.7 Notification of Adverse Changes. During the period from the date
of this Agreement extending until sixty (60) days after the Closing Date,
Seller shall promptly notify Buyer of any matter which any executive officer of
Seller acquires actual knowledge that, if known as of the execution of this
Agreement, would have been required to be disclosed under this Agreement or
included in the Schedules hereto.
5.8 Access to System and Information. In accordance with the purposes
of this Agreement, from the Execution Date until the Closing Date, Seller will
permit Buyer, its counsel, accountants and other representatives, to have
reasonable access, during normal business hours, to the properties and books
and records of the System, and will cause to be furnished to Buyer and its
representatives during such period unaudited quarterly financial statements
with respect to the System.
5.9 Commercially Reasonable Efforts. Buyer and Seller shall each use
its commercially reasonable efforts to facilitate the effective transition of
control of the System as of the Closing Date upon the satisfaction of all
conditions precedent to Closing.
5.10 Conversion of Billing Data. Seller shall provide, and use its
commercially reasonable efforts to cause ITDS (its billing vendor) and EDS (its
roaming clearinghouse) to provide, to Buyer such materials, billing data and
other information, and assistance as may be reasonably necessary for Buyer to
have the opportunity to complete, on a test basis, the March and April 1996,
monthly billing to customers of the System using Buyer's billing system
parallel and in conjunction with the ITDS billing system. The intent of the
parties hereunder is, assuming Closing occurs effective as of May 15, 1996, for
Buyer to be able to complete the May 1996 monthly billing to customers of the
System using Buyer's billing system. If by May 1, 1996, Buyer notifies Seller
and ITDS that Buyer will require ITDS to complete the May 1996 billing cycle
for the System, then Seller will arrange for ITDS to complete such billing
using ITDS' billing system; in such event, Buyer agrees to enter into a
confidentiality agreement with ITDS relating to such billing services. Buyer
shall promptly reimburse Seller for all costs, fees or other charges of ITDS or
EDS incurred by Seller and relating to the extraction of System billing data
from the ITDS billing system, the conversion of the System's billing data to
Buyer's billing system, such parallel trial billing activity, or
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any post-Closing billing services rendered by ITDS to Buyer that are not
covered by the termination fee to be paid by Seller to ITDS. Seller shall pay
all normal billing costs, fees or other charges of ITDS and EDS relating to
billing activity prior to the Closing Time and all termination fees or
penalties arising under Seller's Contract with ITDS.
5.11 Consulting Services. As of the Execution Date, Seller and Buyer
have entered into the Marketing Services Agreement, the form of which is
attached hereto as Exhibit 5.11, pursuant to which Buyer may perform certain
marketing services for the benefit of Seller.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1 Conditions to Obligations of Each Party. The obligations of
Seller and Buyer under Article II of this Agreement are subject to the
satisfaction, or waiver by each party, of the following conditions on or prior
to the Closing Date:
(a) Governmental Consents and Approvals. The FCC and any other
applicable Governmental Authorities shall have issued by final, non-
appealable order, to the extent required, all necessary approvals or
consents required for the assignment and transfer of the Licenses and
the other Assets from Seller to Buyer, without the addition of any
condition that would be materially adverse to Seller or Buyer, and all
conditions to Closing of the transactions hereunder imposed by the FCC
and any other applicable Governmental Authority shall have been
satisfied; provided, however, that Buyer shall have the unfettered right
to waive the requirement of finality regarding such consents and
approvals.
(b) HSR Waiting Period. If applicable, the waiting period
prescribed by the HSR Act shall have lapsed or been terminated, and any
investigation of the transactions contemplated hereby commenced by the
Department of Justice or the Federal Trade Commission pursuant to the
HSR Act shall have been terminated.
6.2 Conditions Precedent to Obligations of Buyer. The obligations of
Buyer under Article II of this Agreement are subject to the satisfaction, or
waiver by Buyer, of the following conditions on or prior to the Closing Date:
(a) Representations and Warranties True on Closing Date. The
representations and warranties of Seller made in this Agreement shall be
true and correct in all material respects on and as of the Closing Date
with the same force and effect as though those representations and
warranties were made on and as of such Closing Date.
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(b) Compliance with Agreements. Seller, in all material
respects, shall have performed and complied with all of Seller's
obligations under this Agreement that are to be performed or complied
with by Seller prior to or on such Closing Date.
(c) Officer's Certificate. Seller shall have delivered to
Buyer a certificate, dated as of the Closing Date and signed by an
authorized officer of Buyer, certifying that the conditions set forth in
Sections 6.2(a) and (b) hereof have been fulfilled.
(d) Documents. Seller shall have delivered the documents
required by Section 7.2 hereof.
(e) Third Party Consents. Seller shall have delivered to Buyer
evidence reasonably satisfactory in form and substance to Buyer that all
required consents of third parties, including consents required of all
third parties to the Contracts identified or referred to on Schedule
3.11 (other than the Pitney Xxxxx office equipment leases), have been
obtained.
(f) No Litigation. On the Closing Date, (i) no litigation,
proceeding, investigation, or inquiry shall be pending that, if
sustained, would materially and adversely affect the value of the
Assets, Buyer's right to acquire, retain and own the Assets or operate
the System, and (ii) no judgment, decree, injunction, rule or order of
any court of competent jurisdiction or other Governmental Authority
shall be outstanding against Buyer, Seller or any affiliate purporting
to enjoin or otherwise prevent the Closing of the transactions
contemplated in this Agreement.
(g) Opinion of Counsel. Seller shall have delivered to Buyer
an opinion of Xxxxxxxxxx and Xxxxx, L.L.P., special transaction and FCC
counsel to Seller, dated as of the Closing Date, substantially in the
form of Exhibit 6.2(g) attached hereto.
(h) Subscriber Count. As of the Closing Date, the System shall
have not less than 3,350 subscribers. For purposes of this Section
6.2(h), a subscriber shall mean an individual customer of the System or,
with respect to multiple user accounts of the System, an individual
customer equivalent based on the number of telephones billed under such
account, that
(i) either has paid in full at least one regular
monthly billing statement for cellular telephone service from the
System (a "System Billing Statement"), or is a barter customer of
the System listed on Schedule 6.2(h) and is in good standing
under its barter arrangements with Seller as of the Closing Date;
and
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(ii) on the Closing Date is not in arrears in the
payment of a System Billing Statement by more than 30 days, as
reflected on the billing records of Seller relating to the
System.
To the extent that the number of subscribers as of the Closing Date (the
"Closing Date Subscriber Count") is less than 3,500, Buyer may withhold
payment of a portion of the Purchase Price otherwise payable at Closing
in an amount equal to the sum of (w) $2,750 times the remainder of 3,500
minus the Closing Date Subscriber Count, not to exceed 100, plus (x)
$3,750 times the remainder of 3,400 minus the Closing Date Subscriber
Count.
Notwithstanding the foregoing, on the Closing Date Buyer and
Seller together shall identify by name and account number each
individual customer or individual customer equivalent of the System that
may not properly be included as a subscriber of the System for purposes
of this Section 6.2(h) because it had not paid at least one System
Billing Statement as of the Closing Date (each, an "Excluded
Subscriber"). Within 10 business days after the 60th day following the
Closing Date, Buyer shall determine and certify in a written notice to
Seller which of the Excluded Subscribers have paid in full a System
Billing Statement within 60 days after the Closing Date ("Later
Qualified Subscribers") and which of the Excluded Subscribers have not
paid in full a System Billing Statement within such 60-day period,
together with billing and payment information supporting the
determination of which Excluded Subscribers did not become Later
Qualified Subscribers. Concurrently with the delivery of such notice,
Buyer shall pay to Seller an amount, not to exceed the withheld portion
of the Purchase Price, equal to the sum of (y) $3,750 times the number
of Later Qualified Subscribers up to the remainder calculated pursuant
to clause (x) above plus (z) $2,750 times the remainder of the aggregate
number of the Later Qualified Subscribers minus the number of such Later
Qualified Subscribers included in clause (y) above.
6.3 Conditions Precedent to Obligations of Seller. The obligations of
Seller under Article II of this Agreement are subject to the satisfaction, or
waiver by Seller, of the following conditions on or prior to the Closing Date:
(a) Representations and Warranties True on Closing Date. The
representations and warranties of Buyer made in this Agreement shall be
true and correct in all material respects on and as of the Closing Date
with the same force and effect as though such representations and
warranties were made on and as of the Closing Date.
(b) Compliance with Agreements. Buyer, in all material
respects, shall have performed and complied with all of Buyer's
obligations under this Agreement that are to
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be performed or complied with by Buyer prior to or on the Closing Date.
(c) Officer's Certificate. Buyer shall have delivered to
Seller a certificate, dated as of the Closing Date and signed by an
authorized officer of Buyer, certifying that the conditions set forth in
Sections 6.3(a) and (b) hereof have been fulfilled.
(d) Documents. Buyer shall have delivered to Seller the
documents required under Section 7.3 hereof.
(e) No Litigation. On the Closing Date, (i) no litigation,
proceeding, investigation, or inquiry shall be pending that, if
sustained, would materially and adversely affect the value of the
Assets, Seller's right to retain or convey the Assets or operate the
System, or Buyer's right to acquire, retain and own the Assets or
operate the System, and (ii) no judgment, decree, injunction, rule or
order of any court of competent jurisdiction or other legal authority
shall be outstanding against Buyer, Seller or any Affiliate purporting
to enjoin or otherwise prevent the Closing of the transactions
contemplated hereunder.
ARTICLE VII
THE CLOSING
7.1 Closing. The closing (the "Closing") of the transactions
contemplated under this Agreement shall take place at the offices of Xxxxxxxxxx
and Xxxxx, L.L.P., 0000 Xxxxxxxxx Xxxxxx, XX, Xxxxx 000, Xxxxxxxxxx, XX 00000,
at 10:00 a.m. local time on the later of (i) May 15, 1996, or (ii) the third
business day following the date on which the last of the conditions specified
in Article VI hereof is satisfied or waived, or at such other location, date
and time as the parties may mutually agree. The date on which the Closing shall
occur is referred to herein as the "Closing Date." The Closing shall become
effective as of 11:59 p.m. on the Closing Date.
7.2 Obligations of Seller. At Closing, Seller shall deliver or cause
to be delivered to Buyer the following:
(a) Transfer Documents. An executed Xxxx of Sale and
Assignment and Assumption Agreement, substantially similar in form to
Exhibit 7.2(a), and such other instruments of transfer and assignment,
in form and substance reasonably satisfactory to Buyer, that Buyer
reasonably deems to be necessary to effectuate the transactions
contemplated by this Agreement.
(b) Officer's Certificate. The certificate described in
Section 6.2(c) hereof.
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(c) Vehicle Titles. Properly executed title documents and
additional conveyance documentation for vehicles that are included in
the Operating Assets.
(d) Lien Releases. Evidence satisfactory to Buyer that all
Liens affecting the Assets, other than Permitted Liens but expressly
including the Liens set forth in Schedule 3.7, have been or as of the
Closing Date will be terminated, released or waived, as appropriate, or
original executed instruments effecting such terminations, releases or
waivers.
(e) Evidence of Necessary Actions. Evidence reasonably
satisfactory to Buyer that Seller has taken all actions necessary to
authorize the execution of this Agreement and such other documents to
effect the consummation of the transactions contemplated hereby.
(f) Documents and Records. All (i) existing blueprints,
schematics, working drawings, plans, specifications, projections,
statistics, engineering records, original plant records, system
construction and as-built maps relating to the System; (ii) customer
lists, files and records used by Seller in the operation of the System;
and (iii) personnel files and records relating to the employees of
Seller that render services to the System and who have accepted an offer
of employment after Closing from Buyer. Delivery of the foregoing shall
be deemed made to the extent such lists, files and records are then
located at any of the offices included in the System.
(g) FIRPTA Certificate. A FIRPTA Non-Foreign Seller
Certificate certifying that Seller is not a foreign person within the
meaning of Section 1445 of the Code.
(h) Legal Opinion. The legal opinion of Xxxxxxxxxx and Xxxxx,
L.L.P., described in Section 6.2(g).
(i) Closing Escrow Agreement. The Closing Escrow Agreement
described in Section 2.5, duly executed by Seller and the escrow agent
named therein.
(j) Certificate of Good Standing. A certificate of good
standing or other similar documentation from the Secretary of State of
the State of Alabama certifying that Seller is a validly existing
corporation formed under the laws of the State of Alabama and is in good
standing.
(k) Noncompete and Confidentiality Agreement. The Noncompete
and Confidentiality Agreement substantially in the form of Exhibit
7.2(k), duly executed by Seller and Seller's directors, Xxxx Xxxxx and
Xxxxxx Xxxxx.
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(l) Release from Texas 16. A Release and Waiver substantially
in the form of Exhibit 7.2(l), duly executed by Texas 16 Cellular
Telephone Company.
7.3 Obligations of Buyer. At Closing, Buyer shall deliver or cause to
be delivered to Seller the following:
(a) Purchase Price. The Purchase Price, as required by Section
2.4, plus or minus, as appropriate, the Current Items Amount, as
calculated in the Initial Adjustment Certificate.
(b) Transfer Documents. An executed Xxxx of Sale and
Assignment and Assumption Agreement, substantially similar in form to
Exhibit 7.2(a), and such other instruments of transfer and assignment,
in form and substance reasonably satisfactory to Seller, that Seller
reasonably deems to be necessary to effectuate the transactions
contemplated by this Agreement.
(c) Officer's Certificate. The certificate described in
Section 6.3(c) hereof.
(d) Evidence of Necessary Actions. Evidence reasonably
satisfactory to Seller that Buyer has taken all actions necessary to
authorize the execution of this Agreement and such other documents to
effect the consummation of the transactions contemplated hereby.
(e) Closing Escrow Agreement. The Closing Escrow Agreement
described in Section 2.5, duly executed by Buyer.
(f) Certificates of Good Standing and Authority. A certificate
of good standing or other similar document from the Secretary of State
of Louisiana certifying that Buyer is a validly existing corporation
formed under the laws of the State of Louisiana and is in good standing,
and a certificate or other similar document from the Secretary of State
for the State of Alabama certifying that Buyer is a foreign corporation
authorized to conduct business in the State of Alabama and is in good
standing.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification by Seller. From and after Closing, Seller shall
indemnify and hold harmless Buyer, its shareholders, officers, directors,
employees, agents and legal representatives, and any Person claiming by or
through any of them, as the case may be, from and against any and all Losses
arising out of or resulting from:
(a) Any representation or warranty made by Seller in this
Agreement or in any closing document executed by Seller
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not being true and accurate in all material respects when made or at
Closing, as appropriate, provided that such breach is not deemed to have
been waived as a result of Closing pursuant to the proviso set forth
below in this Section, and provided further that indemnification under
this paragraph is sought within the time periods and in the manner set
forth in Section 8.5;
(b) Subject to the proviso set forth below in this Section,
any failure by Seller to perform in all material respects any of its
covenants, agreements or obligations under this Agreement to be
performed at or prior to Closing; and
(c) All liabilities of Seller relating to the System that are
not Assumed Liabilities, including all Retained Liabilities.
Provided that no claim for indemnification may be made after Closing with
respect to any breach of any representation, warranty, covenant or agreement by
Seller that was disclosed in the Closing certificate from Seller referred to in
Section 6.2(c) hereof. If, by reason of a claim of any third party relating to
any of the matters subject to such indemnification, a Lien is placed or made
upon any of the properties or assets owned or leased by Buyer or any other
Indemnitee under this Section, in addition to any indemnity obligation of
Seller under this Section, Seller shall furnish a bond sufficient to obtain the
prompt release thereof within ten days after receipt from Buyer of written
notice thereof.
8.2 Indemnification by Buyer. From and after Closing, Buyer shall
indemnify and hold harmless Seller, its shareholders, officers, directors,
employees, agents and legal representatives and any Person claiming by or
through any of them, as the case may be, from and against any and all Losses
arising out of or resulting from:
(a) Any representation or warranty made by Buyer in this
Agreement or in any closing document executed by Buyer not being true
and accurate in all material respects when made or at Closing, as
appropriate, provided that such breach is not deemed to have been waived
as a result of Closing pursuant to the proviso set forth below in this
Section, and provided further that indemnification under this paragraph
is sought within the time periods and in the manner stated in Section
8.5;
(b) Subject to the proviso set forth below in this Section,
any failure by Buyer to perform in all material respects any of its
covenants, agreements or obligations under this Agreement to be
performed at or prior to Closing; and
(c) The Assumed Liabilities.
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Provided that no claim for indemnification may be made after Closing with
respect to any breach of any representation, warranty, covenant or agreement by
Buyer that was disclosed in the Closing certificate from Buyer referred to in
Section 6.3(c) hereof. If, by reason of a claim of any third party relating to
any of the matters subject to such indemnification, a Lien is placed or made
upon any of the properties or assets owned or leased by Seller or any other
Indemnitee under this Section, in addition to any indemnity obligation of Buyer
under this Section, Buyer shall furnish a bond sufficient to obtain the prompt
release thereof within ten days after receipt from Seller of written notice
thereof.
8.3 Procedure for Indemnified Third Party Claim. Promptly after
receipt by a party entitled to indemnification hereunder (the "Indemnitee") of
written notice of the assertion or the commencement of any Litigation with
respect to any matter referred to in Sections 8.1 and 8.2, the Indemnitee shall
give written notice thereof to the party from whom indemnification is sought
pursuant hereto (the "Indemnitor") and thereafter shall keep the Indemnitor
reasonably informed with respect thereto if the Indemnitor does not assume the
defense of such claim; provided, however, that failure of the Indemnitee to
give the Indemnitor notice as provided herein shall not relieve the Indemnitor
of its obligations hereunder, except to the extent that such failure to give
notice shall prejudice any defense or claim available to the Indemnitor. In
case any Litigation shall be brought against the Indemnitee, the Indemnitor
shall be entitled to assume the defense thereof with counsel reasonably
satisfactory to the Indemnitee, at the Indemnitor's sole expense. If the
Indemnitor shall assume the defense of any Litigation, it shall not settle the
Litigation unless the settlement shall include as an unconditional term thereof
the giving by the claimant or the plaintiff of a release of the Indemnitee,
satisfactory to the Indemnitee, from all liability with respect to such
Litigation. If the Indemnitor does not assume the defense of any Litigation,
the Indemnitor shall nevertheless provide reasonable cooperation to the
Indemnitee in the defense of such Litigation, and any settlement of such
Litigation shall be on terms reasonably satisfactory to the Indemnitor.
8.4 Limitation on Indemnification Obligations. Neither Seller nor
Buyer shall have any liability under Section 8.1(a) or 8.2(a), respectively,
unless, and only to the extent that, the aggregate amount of Losses incurred by
the other party that are subject to its indemnification obligations pursuant to
such provision exceeds $20,000.
8.5 Survival Periods: Time and Manner of Certain Claims. Subject
to the provisions of Section 11.3, the indemnification obligations and remedies
set forth in this Article VIII are intended to be the sole and exclusive remedy
of the parties with respect to the matters for which indemnification may be
sought pursuant to Sections 8.1 and 8.2 or elsewhere in this Agreement. For
purposes of this Article VIII, the representations and
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warranties made herein by Buyer and Seller (except for Sections 3.5, 3.6, 3.7,
the first sentence of Section 3.11, and Section 3.26) shall be deemed not to
contain the qualifying phrases "material," "material adverse effect," "to the
knowledge of," and other phrases of similar meaning. The representations and
warranties of Seller and Buyer in this Agreement or in and any closing document
shall survive Closing for a period of one year, except that (i) the liability
of the parties shall extend beyond such one-year period with respect to any
claim that has been asserted in a written notice properly delivered before the
expiration of such one-year period, (ii) all such representations and
warranties with respect to any Taxes and with respect to any FCC matters will
survive until the expiration of the applicable statute of limitations, and
(iii) all such representations and warranties with respect to good title to the
Assets and the covenants and agreements of the parties in this Agreement or in
any closing document shall survive the Closing and shall continue in full force
and effect without limitation.
ARTICLE IX
CERTAIN TAX MATTERS
9.1 Liability for Taxes. Seller shall be liable for and shall pay all
Taxes (whether assessed or unassessed) attributable to taxable periods (or
portions thereof) ending on or prior to the Closing Date. Buyer shall be liable
for and shall pay all Taxes (whether assessed or unassessed) that are
attributable to taxable periods (or portions thereof) beginning after the
Closing Date. For purposes of this Article IX, any taxable period beginning
before and ending after the Closing Date shall be treated as two partial
taxable periods, one ending on the Closing Date and the other beginning after
the Closing Date, except that Taxes (such as property Taxes) imposed on a
periodic basis shall be allocated on a daily basis.
9.2 Payment of Sales, Use and Transfer Taxes. Each of Seller and
Buyer shall pay all sales, use, transfer and similar Taxes or assessments in
accordance with applicable Laws, including, but not limited to, transfer fees
and similar assessments for Licenses, Contracts, and Real Property, arising
from or payable by reason of the transactions contemplated hereby. In the event
that any applicable Law is silent as to which party is liable for the payment
of such Taxes or assessments, the parties shall share equally such Tax or
assessment. Except as expressly set forth in this Agreement, nothing herein
shall in any way modify the obligation of either party to this Agreement to pay
Taxes as provided by statute or code. The parties agree to take whatever
actions are necessary or appropriate to establish an exemption from (or
otherwise reduce) such Taxes.
9.3 Reimbursement of Taxes. Seller or Buyer, as the case may be,
shall provide reimbursement for any Tax paid by the other, all or a portion of
which is its responsibility in
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accordance with the terms of this Article IX. Within a reasonable time prior to
the payment of any such Tax, the party paying such Tax shall give notice to the
other party of the Tax payable and the portion that is the liability of such
party, although failure to do so will not relieve the other party from its
liability hereunder.
9.4 Allocation of Purchase Price. Prior to the Closing Date, Buyer
and Seller shall each use its best efforts to agree upon the allocation (the
"Allocation") of the Purchase Price and the Assumed Liabilities to the
individual assets or classes of assets (within the meaning of Section 1060 of
the Code). Buyer, Seller, and their respective affiliates, shall file all Tax
returns and schedules thereto, including, without limitation, those returns and
forms required by Section 1060 of the Code, consistent with the Allocation
unless otherwise required by the applicable Legal Requirements.
9.5 Survival of Tax Obligations. Notwithstanding anything to the
contrary contained in this Agreement, the obligations of the parties set forth
in this Article IX shall be unconditional and absolute and shall remain in
effect until the expiration of the applicable statutes of limitations relating
to such obligations.
ARTICLE X
OTHER COVENANTS
10.1 Further Assurances. Seller and Buyer shall, from time to time
after the Closing, at the other's reasonable request and without further
consideration, execute and deliver or cause to be executed and delivered such
other instruments of conveyance, assignment and transfer and take such other
action as the other reasonably may require in order more effectively to convey,
transfer to and vest in the other, and to put the other in possession of the
consideration to be received by the other hereunder.
10.2 Confidentiality. Any non-public information of either party that
such party may disclose (the "Disclosing Party") to the other party (the
"Recipient Party") in connection with this Agreement shall be maintained as
confidential by the Recipient Party and, unless and until Closing shall occur
and for a two year period thereafter, Recipient Party shall not disclose any
such information to any other Person (other than its directors, officers and
employees, and representatives of its advisers and lenders whose knowledge
thereof is necessary in order to facilitate the consummation of the
transactions contemplated hereby) or use such information to the detriment of
the Disclosing Party; provided that (i) the Recipient Party may use and
disclose any such information once it has been publicly disclosed (other than
by the Recipient Party in breach of its obligations under this Section) or that
rightfully has come into the possession of the Recipient Party (other than from
the
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Disclosing Party), and (ii) to the extent that the Recipient Party may, in the
reasonable judgment of its counsel, be compelled by Law to disclose any of such
information, the Recipient Party may disclose such information if it shall have
used all reasonable efforts, and shall have afforded the Disclosing Party the
opportunity, to obtain an appropriate protective order, or other satisfactory
assurance of confidential treatment, for the information compelled to be
disclosed. In the event of termination of this Agreement, the Recipient Party
shall use all reasonable efforts to cause to be delivered to the Disclosing
Party, and retain no copies of, any documents, work papers and other materials
obtained by the Recipient Party or on its behalf from the Disclosing Party,
whether so obtained before or after the execution hereof.
ARTICLE XI
MISCELLANEOUS
11.1 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given and
effective (i) upon receipt if delivered in person, (ii) the next business day
if delivered by facsimile, (iii) one business day after deposit prepaid with a
national overnight express delivery service (e.g., Federal Express, UPS or
Airborne) or (iv) three business days after deposit in the United States mail
(registered or certified mail, postage prepaid, return receipt requested)
If to Seller, to:
West Alabama Cellular Telephone Company, Inc.
c/o Xxxx Xxxxx
0000 Xxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
with copies to:
Xxxxxxxxxx and Xxxxx, L.L.P.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
and if to Buyer, to:
Mississippi One Cellular Telephone Company
CM Tower, Suite 0000
Xxx Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx Xxxxx
Fax No.: (000) 000-0000
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32
with a copy to:
Lukas, McGowan, Xxxx & Xxxxxxxxx
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx Xxxxxxxxx
Fax No.: (000) 000-0000
or such other address as specified by the parties in writing from time to time.
11.2 Termination of the Agreement.
(a) Notwithstanding anything in this Agreement to the
contrary, this Agreement may be terminated and the transactions
contemplated hereby abandoned at any time on or prior to the Closing
Date:
(i) By mutual agreement of Seller and Buyer in writing;
(ii) By either party, if the other party is in material
breach or default of its respective covenants, agreements, or
other obligations herein, or if any of its representations herein
is not true and accurate in all material respects when made or
when otherwise required by this Agreement to be true and
accurate, so long as the terminating party is not in material
breach or default of its respective covenants, agreements or
other obligations hereunder; provided, however, that (A) the
breaching party is given prompt written notice providing a
reasonably detailed explanation of the facts and circumstances
surrounding such breach, and (B) subject to Section 3.21, the
breaching party fails to cure such breach to the reasonable
satisfaction of the non-breaching party within thirty (30) days
of receiving such notice of its breach or, if such breach cannot
be cured, to agree to fairly compensate the non-breaching party
for such breach to the reasonable satisfaction of the non-
breaching party.
(iii) By Seller, upon fifteen (15) days written notice to
Buyer, in the event that a judgment, decree, injunction, rule or
order of any court of competent jurisdiction or other legal
authority has been entered against Seller purporting to enjoin or
otherwise prevent the Closing of the transactions contemplated by
this Agreement, and, notwithstanding the reasonable best efforts
of Seller to dissolve such judgment, decree, injunction, rule or
order by appeal, such judgment, decree, injunction, rule or order
remains in effect; or
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(iv) By Buyer, upon fifteen (15) days written notice to
Seller, in the event that a judgment, decree, injunction, rule or
order of any court of competent jurisdiction or other legal
authority has been entered against Buyer purporting to enjoin or
otherwise prevent the Closing of the transactions contemplated by
this Agreement, notwithstanding the reasonable best efforts of
Buyer to dissolve such judgment, decree, injunction, rule or
order by appeal, such judgment, decree, injunction, rule or order
remains in effect.
(b) If this Agreement is terminated and the transactions
contemplated hereby are not concluded as described above, this Agreement
will become void and of no further force and effect, except for the
provisions of this Section 11.2, Section 10.2 and Article XI.
Termination of this Agreement pursuant to Section 11.2(a) (ii) shall not
limit or impair any remedies that Seller or Buyer may have with respect
to a breach or default by the other of its covenants, agreements or
obligations hereunder.
11.3 Specific Performance; Remedies Cumulative. Seller and Buyer each
acknowledges that, if it is in material breach or default of its covenants,
agreements or obligations hereunder, the other party would be irreparably
damaged by such breach or default and that, in addition to the other remedies
that may be available in law or equity, such party shall be entitled to
specific performance of this Agreement and injunctive relief. Subject only to
the express provisions of Sections 8.4 and 8.5 and the proviso set forth at the
end of Sections 8.1 and 8.2, all rights and remedies under this Agreement are
cumulative of, and not exclusive of, any rights or remedies otherwise
available, and the exercise of such rights or remedies shall not bar the
exercise of any other rights or remedies.
11.4 Bulk Transfer Law. The consummation of the transactions
contemplated by this Agreement are not subject to the provisions of any bulk
transfer law, bulk transfer tax law or any similar law of any jurisdiction.
However, if subsequent to the Closing and during the term of the Escrow
Agreement it is determined that payments are due under a bulk transfer law or
tax, such payment shall be deducted from the closing escrow amount provided for
in Section 2.5.
11.5 Press Release. Neither Buyer nor Seller shall make any public
announcement nor issue any press release regarding the transactions set forth
herein without the prior approval of the other, which approval shall not be
withheld unreasonably.
11.6 Amendments. This Agreement may be amended or modified only by a
written instrument executed by the parties hereto.
11.7 Expenses. Except as otherwise expressly provided herein, each
party to this Agreement shall pay its own expenses
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(including, without limitation, the fees and expenses of its agents,
representatives, counsel and accountants) incidental to the negotiation,
preparation, execution and performance of this Agreement.
11.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.9 Parties in Interest: No Assignment.
(a) This Agreement shall inure to the benefit of and be
binding upon Seller and Buyer and their respective successors and
assigns. Nothing in this Agreement, express or implied, is intended to
confer upon any other Person any rights or remedies under or by reason
of this Agreement. Notwithstanding the foregoing, the rights and
responsibilities of Seller and Buyer under this Agreement may not be
assigned (by operation of law or otherwise), except as otherwise
provided by paragraph (b) below, without the prior written consent of
the other party hereto.
(b) Buyer may assign its rights and obligations under this
Agreement to an affiliate without the prior written consent of Seller if
Buyer makes application with the FCC for pro forma assignment of the
Licenses to such affiliate and the assignment is approved by the FCC
prior to the Closing Date; provided that no such assignment shall in any
way operate to relieve the assigning party of its obligations under this
Agreement, and provided further that the assigning party agrees to cause
such affiliate to specifically assume and perform the Assumed
Liabilities, and shall be jointly and severally liable for any
non-performance thereof.
(c) Upon the sale, assignment or transfer by Buyer of the
Assets to a non-affiliated party other than in the ordinary course of
business, Seller's representations and warranties and indemnification
obligation for breach thereof shall terminate.
11.10 Applicable Law. The rights and obligations of the parties hereto
shall be construed under and governed by the laws of the State of Delaware,
without giving effect to the principles of conflicts of law of such state. In
accordance with Title 6, Section 2708 of the Delaware Code Annotated, each
party hereby submits to the jurisdiction of the courts of Delaware and agrees
to be served with legal process from any of such courts. Each party hereby
irrevocably waives, to the fullest extent permitted by law, any objection that
it may have, whether now or in the future, to the laying of venue in, or to the
jurisdiction of, any of such courts for the purpose of any such suit, action,
proceeding or judgment and further waives any claim that such
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35
suit, action, proceeding or judgment has been brought in an inconvenient forum.
11.11 Waiver. Except as otherwise provided in the provisos set forth in
Sections 8.1 and 8.2, no provision in this Agreement shall be deemed waived by
course of conduct, unless such waiver is in writing signed by the parties and
stating specifically that it was intended to modify this Agreement. Any waiver
by either party hereto of any term, provision, or condition of this Agreement
shall be effective only if and to the extent specified in writing by such
party, and no single waiver of any right or obligation hereunder shall be
construed to constitute a voluntary waiver unless expressly provided as such.
11.12 Interpretation. Each party has reviewed and been represented by
counsel in the negotiation of this Agreement, and no question of construction
shall be resolved by any rule of interpretation providing for interpretation
against the drafting party. Section headings contained herein are descriptive
only and shall have no legal effect.
11.13 Entire Agreement. This Agreement and the exhibits and schedules
attached hereto constitute the entire agreement between the parties governing
the matters addressed herein. No prior agreement or representation, whether
oral or written, shall have any force or effect thereon.
[This space intentionally left blank].
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
WEST ALABAMA CELLULAR TELEPHONE COMPANY,
INC.
By:
-----------------------------------
Name: Xxxx Xxxxx
Title: President
MISSISSIPPI ONE CELLULAR TELEPHONE COMPANY
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
[Signature Page to
Asset Purchase Agreement for Alabama #3 RSA]
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LIST OF SCHEDULES AND EXHIBITS
SCHEDULES:
----------
Schedule 2.2 Other Excluded Assets
Schedule 2.5 Buyer Credits
Schedule 3.1 Shareholders of Seller
Schedule 3.3 Conflicts
Schedule 3.6 Absence of Adverse Changes
Schedule 3.7 Liens and Title Exceptions
Schedule 3.8(a) Operating Assets to be Acquired "As-Is"
Schedule 3.8(b) Operating Assets in Good Condition
Schedule 3.9 Real Property
Schedule 3.10 Licenses
Schedule 3.11 Contracts; Third Party Consents
Schedule 3.12 Litigation
Schedule 3.13 System Coverage; Cell Sites
Schedule 3.15 Insurance
Schedule 3.17 Tax Matters
Schedule 3.18 Employee Information
Schedule 3.20 Compliance with Laws
Schedule 3.23 Intellectual Property
Schedule 3.25 Articles of Incorporation and Bylaws of Seller
Schedule 5.5(c) Outstanding Liabilities
Schedule 5.5(g) Permitted Changes in Customer Policies
Schedule 6.2(g) Permitted Barter Customers
EXHIBITS:
---------
Exhibit 2.5 Closing Escrow Agreement
Exhibit 5.11 Marketing Services Agreement
Exhibit 6.2(g) Opinion of Seller's Counsel
Exhibit 7.2(a) Xxxx of Sale and Assignment and Assumption Agreement
Exhibit 7.2(k) Noncompete and Confidentiality Agreement
Exhibit 7.2(l) Release and Waiver from Texas 16
38
WEST ALABAMA CELLULAR TELEPHONE COMPANY
[MAP]
39
XXXXX 0 XXXXXXXX XXXX FILING
40
Approved by OMS FOR
3060-0438 USE 309-A
Expires 10/31/94 Only
------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
Transmittal Sheet for Cellular Applications for Unserved Areas
(Read Instructions on Back Before Completing: Also See Notice for Information
Regarding Public Burden Estimate)
--------------------------------------------------------------------------------
1(a) Legal Name of Applicant (If person list last name first. Name must be
same as it appears on FCC Form 49_.
WEST ALABAMA CELLULAR TELEPHONE COMPANY
--------------------------------------------------------------------------------
(b) Mailing Street Address or P.O. Box Number Line 1 - Maximum 35
characters. Continue on Line 2 below if required.
0000 Xxxxxxxxx Xxxx
--------------------------------------------------------------------------------
(c) Mailing Street Address or P.O. Box Number (continued) Line 2
------------------------------------------------------------------------------------------------------------------------
(d) City (e) State (f) Zip Code (g) Call Sign (if applicable) (h) (Area Code) Telephone No.
XXX XXXXX XX 00000 KNKN716 (000) 000-0000
------------------------------------------------------------------------------------------------------------------------
2. Fee Data. Refer to the Common Carrier Services Fee Filing Guide for fee
information.
2-10 MI 3-16 SAB SAB
AZIMUTH AVG ELEV AVG ELEV HAAT HAAT TX ERP TX ERP DIST. DIST.
(Degrees) (ft) (m) (ft) (m) (W) (??) (ml) (?)
6 461 140.5 294 89.6 219.6 -6.58 18.1 29.2
45 513 156.4 242 73.8 10.0 -19.56 10.0 16.2
90 470 143.3 265 86.9 2.8 -25.58 8.5 13.7
135 404 123.1 351 107.0 0.5 -33.47 6.7 10.8
180 362 116.4 373 113.7 0.5 -33.47 6.9 11.0
225 341 103.9 414 126.2 0.7 -31.78 7.6 12.2
270 333 101.5 422 126.6 2.7 -25.08 9.7 15.6
318 409 124.7 346 105.5 17.5 -17.58 12.5 20.1
--------------------------------------------
AVERAGES 414 124.2 341 103.9
46
[GRAPH]
--------------------------------------------------------------------------------
MAJOR LOBE ORIENTATION KATHREIN
ANTENNA MODEL 740 215
355 degrees TRUE
--------------------------------------------------------------------------------
MAXIMUM ANTENNA GAIN 16 dB
47
[DIAGRAM]
GROUND ELEVATION: 123.4 m AMSL
-------
48
-------------------------------------------------------------------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
FCC Administrative Information
600 Personal Communications Service
Cellular Radiotelephone Service
Paging and Radiotelephone Service
Schedule A Rural Radiotelephone Service FCC USE ONLY
Offshore Radiotelephone Service
Air-ground Radiotelephone Service
-------------------------------------------------------------------------------------------------------------------------------
PURPOSE OF FILING
-------------------------------------------------------------------------------
MAJOR
-----
A request an initial authorization for a new
system or station; additional channels or
spectrum (all)
B request authorization or amend a pending
application to change a channel or channel
block (all)
C request a partial assignment of a radio
station authorization (all)
D request authorization for facilities for
which environmental assessment is required
(all)
E request authorization for facilities for
A1. The purpose of this which international coordination is
filing is to: required (all)
F request a developmental authorization (CD,
CL, CR)
G request regular authorization for
( A ) facilities operating under developmental
authority (CD, CL, CR)
H amend a pending application to
Enter one or more letters substantially change the technical proposal
that correctly describe the (CD, CR)
purpose of this filing. I request authorization for a cellular
facility that would produce a de minimis
SAB extension (CL)
J amend a pending application to modify a
CGSA to include area not previously
proposed (CL)
K request that a CGSA boundary be determined
using an alternative method (CL)
L request authorization for a new or expanded
service area on a requested channel (CD)
M request authorization for one or more new
or relocated fixed stations (CD)
N request authorization to increase the ERP
and/or antenna height AAT of a fixed station
(CD)
O request authority to provide commercial
paging service using a broadcast station
subcarrier (CD)
P request authorization for a Commercial
Aviation ground station location to be
established (CG)
Q request authorization for a new or
relocated General Aviation ground station
(CG)
R request authorization for a new/relocated
rural/offshore central office-inter-office
station (CR, CO)
MINOR
-----
S request authorization for one or more minor
change(s) to an existing system or station
(all)
T effect a minor amendment of a pending
application (all)
U request an extension of time to complete
construction of one or more facilities (all)
V request authorization for a new or
relocated rural or offshore subscriber
station (CR, CO)
W request to consolidate separately authorized
facilities (all)
-------------------------------------------------------------------------------
MARKET/CHANNEL BLOCK
-------------------------------------------------------------------------------------------------------------------------------
A2. Market Designator A3. Channel Block A4. Sub-market Designator A5. Market Name
309 A 1 ALABAMA 03 - XXXXX
-------------------------------------------------------------------------------------------------------------------------------
CONTROL POINTS
------------------------------------------------------------------------------------------------------------------------------
A6. A7. A8. A9.
Control Point Location Telephone Number Action Requested
Number Street Address, City or Town, State Add Delete
- -
------------------------------------------------------------------------------------------------------------------------------
( )
------------------------------------------------------------------------------------------------------------------------------
( )
------------------------------------------------------------------------------------------------------------------------------
( )
------------------------------------------------------------------------------------------------------------------------------
49
------------------------------------------------------------------------------------------------------------------------------------
FCC FEDERAL COMMUNICATIONS COMMISSION
600
Schedule C Technical Data
(Block Channel Assignment)
Cellular Radiotelephone Service FCC Use Only
Personal Communications Service (???)
Air-ground Radiotelephone Service (Commercial ??)
------------------------------------------------------------------------------------------------------------------------------------
LOCATION
-----------------------------------------------------------------------------------------------------------------------------------
C1. Action Requested (M) Add Delete Modify C2. FCC Location Number (Key to Schedule P) 009
------------------------------------------------------------------------------------------------------------------------------------
C3. Street Address or other Description of Location
3.6 MILES @ 87 DEGREES FROM VERNON
------------------------------------------------------------------------------------------------------------------------------------
C4. City
VERNON
------------------------------------------------------------------------------------------------------------------------------------
C5. County C6. State
XXXXX AL
------------------------------------------------------------------------------------------------------------------------------------
C7. NAD 27 North Latitude C8. NAD 27 West Longitude FCC Use Only
(DD-MM-SS) (DDD-MM-SS)
33 degrees 45 feet 37 inches 088 degrees 02 feet 48 inches
--------------------------------------------------------------------------------------------
C9. NAD 83 North Latitude C10. NAD 83 West Longitude
(DO-MM-SS) (DDD-MM-SS)
degrees feet inches degrees feet inches
----- --- --- ---- --- ----
------------------------------------------------------------------------------------------------------------------------------------
???? changing antenna location, provide coordinates, FCC location number and datum for old location:
------------------------------------------------------------------------------------------------------------------------------------
C11. North Latitude C12. West Longitude C13. FCC Location Number
(DD-MM-SS) (DDD-MM-SS)
-------------------------------------------
degrees feet inches degrees feet inches C14. Datum (HAO 27 or NAD 83)
----- --- --- ---- --- ----
------------------------------------------------------------------------------------------------------------------------------------
TECHNICAL PARAMETERS
------------------------------------------------------------------------------------------------------------------------------------
C15. Height of Antenna Center of Radiation AAT (metered) C16. Height to Top of Antenna AGL C17. Maximum ERP
106.7 107.7 225.0
------------------------------------------------------------------------------------------------------------------------------------
RADIAL DATA
------------------------------------------------------------------------------------------------------------------------------------
Azimuth C18. Antenna Height C19. Transmitting ERP C20. Distance to SAB C21. Distance to CGSA
(degrees from (AAT (metered) (??) (??) (??)
true North)
------------------------------------------------------------------------------------------------------------------------------------
0 89.6 219.8 29.2 29.2
------------------------------------------------------------------------------------------------------------------------------------
45 degrees 73.8 10.0 16.2 25.1
------------------------------------------------------------------------------------------------------------------------------------
90 degrees 86.9 2.8 13.7 44.7
------------------------------------------------------------------------------------------------------------------------------------
135 degrees 107.0 0.5 10.8 45.2
------------------------------------------------------------------------------------------------------------------------------------
180 degrees 113.7 0.5 11.0 213.8
------------------------------------------------------------------------------------------------------------------------------------
225 degrees 126.6 0.7 12.2 42.1
------------------------------------------------------------------------------------------------------------------------------------
270 degrees 128.6 2.7 15.6 15.6
------------------------------------------------------------------------------------------------------------------------------------
315 degrees 105.5 17.5 20.1 20.1
------------------------------------------------------------------------------------------------------------------------------------
50
------------------------------------------------------------------------------------------------------------------------------------
FCC FEDERAL COMMUNICATIONS COMMISSION
600 SCHEDULE F
Antenna Structure Data
(ALL SERVICES)
-----------------------
FCC Use Only
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Licensee Name Radio Service Call Sign or Station Location (City, State)
WEST ALABAMA CELLULAR TELEPHONE CO. CL KNKN716
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STATUS AND IDENTIFYING INFORMATION
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F1 F2 F3 F4 F5
LOC Location New Call Sign of Radio Tower Owner's Name and Telephone Number
Number or Existing Station Service
Existing
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A 000 X XXXX000 XX XXXX XXXXXXX CELLULAR TELEPHONE (000) 000-0000
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B
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C
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D
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E
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F
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STRUCTURE TYPE AND HEIGHT
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F6. F8. F9 F10.
LOC Figure F7. Height of Support Overall Height of FCC
Number Structure Type Structure (b) Structure (d) Tower Number
(see reverse) (metered) (metered)
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A 003 TOWER SITE ELEV.: 123.4m 147.8 149.8
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B
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C
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D
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E
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F
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FAA NOTIFICATION
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LOC F11. F12.
FAA Date FAA F13. F14.
notified? Notification Filed FAA Regional Office Notified FAA Study Number
Yes No
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A N
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B
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C
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D
------------------------------------------------------------------------------------------------------------------------------------
E
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F
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51
SCHEDULE 3.15
INSURANCE
[SUMMARY ATTACHED]
52
ARTICLES OF INCORPORATION
OF
WEST ALABAMA CELLULAR TELEPHONE COMPANY, INC.
The undersigned, acting as incorporator of a corporation under the Code
of Alabama, adopt the following Articles of Incorporation for such corporation:
FIRST: The name of the corporation is West Alabama Cellular Telephone
Company, Inc.
SECOND: The period of its duration is perpetual.
THIRD: The purpose or purposes for which the corporation is organized
are: To engage in the cellular telephone business.
FOURTH: The aggregate number of shares which the corporation shall have
authority to issue is: Five Thousand (5,000) shares of One Dollar ($1.00) par
value common stock.
FIFTH: The address of the initial registered office of the corporation
is: 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, and the case of the
initial registered agent at such address is Xxxx Xxxxxx.
SIXTH: The number of directors constituting the initial board of
directors of the corporation is Two (2), and the names and addresses of the
persons who are to serve as directors until the first annual meeting of
shareholders or until their successors are elected and shall qualify are:
Name Address
---- -------
Xxxx Xxx 000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000
Xxxx Xxxxx X0 Xxxxxxx Xxxxx Xxxxxxxxxxxx Xxxxxxxx,
Xxxxx 000, Xx Xxxxxxx, Xxxxxxxxxx 00000
SEVENTH: The name and address of each incorporator is:
Name Address
---- -------
Xxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx
00000
DATED: January 30, 1991.
/s/ XXXX XXXXXX
-------------------------------
Xxxx Xxxxxx, Incorporator
The State of Alabama )
) Probate Court
Montgomery County )
I, Walker Hobbin, Jr., Judge of Probate in and for the said County, in said
State, hereby certify that the wishes and foregoing pages are a full, true and
complete copy of ARTICLES OF INCORPORATION, WEST ALABAMA CELLULAR TELEPHONE
COMPANY, INC. as fully and completely as the same appears of record is this
office in Bank No. 168 of Corporation at page 152.
Given under my hand and official seal this
7th day of February, AD 1991
[ILLEGIBLE]
53
Exhibit 7.2(1)
to Asset Purchase Agreement
dated as of March 4, 1996
between
West Alabama Cellular Telephone Company, Inc.
and
Mississippi One Cellular Telephone Company
RELEASE AND WAIVER OF CLAIMS
Texas 16 Cellular Telephone Company, a Texas corporation ("Texas 16"), by
and through the undersigned, its duly authorized officer, hereby releases,
relinquishes and waives any and all rights, title and interest in and to any
and all properties or assets of West Alabama Cellular Telephone Company, Inc.
("West Alabama Cellular"), except for the tangible personal property described
on Schedule A hereto. Further, Texas 16 hereby waives any and all claims and
rights of action that it may have as of the date hereof against Mississippi One
Cellular Telephone Company, as the purchaser of substantially all of West
Alabama Cellular's properties and assets.
This instrument shall be governed by and construed in accordance with
the laws of the State of Delaware, without giving effect to the principles of
conflicts of law of such state.
IN WITNESS WHEREOF, Texas 16 has caused its duly authorized
representative to execute this Release and Waiver of Claims below.
Dated: , 1996 TEXAS 16 CELLULAR TELEPHONE COMPANY
---------------
By:
-------------------------------
