EXHIBIT 2.2
August 31, 1999
Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Re: Agreement for Purchase and Sale of Assets dated June 29, 1999
(the "Agreement").
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Ladies and Gentlemen:
This letter agreement will amend certain provisions of the Agreement as set
forth below. Capitalized terms used but not defined in this letter will have the
meanings assigned to them in the Agreement.
1. Closing. The Closing will occur at the offices of Holland & Knight LLP,
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000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, xx August 31, 1999.
2. Purchase Price. The Purchase Price specified in Section 2.1(a)(i) of
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the Agreement will be paid to Seller as follows: (a) $245,000,000 cash,
in immediately available funds, at Closing; (b) shares (the "Shares")
of common stock ("Common Stock") of Pinnacle Holdings Inc., a Delaware
corporation ("PHI") will be issued to Seller by PHI at Closing, and the
number of Shares shall have an aggregate value of $10,000,000. The
number of Shares to be issued at Closing is 418,520 based on the
average of the high and low trading value of the Common Stock on the
Nasdaq Stock Market for the five trading day period ending August 26,
1999. At Closing, Seller and PHI will enter into an agreement regarding
registration of the Shares, and PHI will deliver the Shares to Seller.
Seller will deliver the Letter of Credit to Purchaser upon Purchaser's
payment of the cash portion of the Purchase Price and PHI's delivery of
the Shares.
3. Indemnification. (a) Section 11.1 of the Agreement is hereby amended
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and restated in its entirety as follows:
All representations and warranties contained in the Agreement or in
any agreement or other document delivered pursuant hereto shall
terminate at Closing and shall be of no further force and effect.
Notwithstanding the foregoing, the covenants and agreements of the
parties contained in the Agreement that are to be performed
following Closing shall survive Closing until such
covenant is performed or unless specifically provided otherwise
in the Agreement, this letter or any other amendment to the
Agreement or any agreement or document delivered pursuant
hereto or thereto.
(b) Section 11.2(a)(i) is hereby amended and restated in its
entirety as follows:
(i) caused by any failure to fulfill any covenant or
agreement of Purchaser contained herein or in any other
agreement or document delivered pursuant hereto.
(c) Section 11.2(b)(i) is hereby amended and restated in its
entirety as follows:
(i) caused by any failure to fulfill any covenant or agreement
of Seller contained herein or in any other agreement or
document delivered pursuant hereto.
(d) All references to representations and warranties set forth in
Section 11.3(a) are hereby deleted.
4. Covenants. (a) To the extent that Seller has not delivered all of
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the Commitments and Surveys required to be delivered at Closing
pursuant to Section 6.6(a) and Section 6.6(b) of the Agreement,
Purchaser hereby waives such failure to deliver; provided,
however, that Seller shall continue to cooperate with Purchaser
in obtaining such required Commitments and Surveys and shall
share equally the costs related thereto as specifically set forth
in Section 2.5, Section 6.6(a) and Section 6.6(b) of the
Agreement.
(b) The second sentence of Section 6.6(a) of the Agreement is
hereby amended by adding the following to the end of such
sentence:
; and provided further, however, that with respect to the
general lease exception, Seller shall deliver an ALTA Statement
stating that there are no (i) parties in possession of the
Owned Real Estate and the Designated Ground Leased Real Estate
other than persons or entities to which Seller has granted
possessory rights in the ordinary course of Seller's business,
the existence of which Seller has otherwise communicated to
Purchaser, and (ii) options to purchase or rights of first
refusal to acquire all or any portion of the Owned Real Estate
or Seller's interest in the Designated Ground Leased Real
Estate.
(c) [Intentionally Left Blank]
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(d) Section 6.6(d) of the Agreement is hereby terminated in its
entirety and shall be of no further force or effect. Accordingly,
Section 6.6(e) shall be renumbered as Section 6.6(d).
(e) Subject to the Master Sublease Agreement, the Operating Agreement
and the Land Lease Agreement, notwithstanding Section 1.6 of the
Agreement, neither Seller nor any Affiliate shall have any liability or
obligation with respect to (i) obtaining any third party consent, (ii)
the failure to obtain any third party consent or (iii) relating to any
arrangement designed to provide Purchaser the obligations and benefits,
under or with respect to any contracts of the Business or any claim or
right of any benefit arising thereunder or resulting therefrom.
(f) Seller shall pay any real estate taxes and franchise taxes for any
periods prior to the Closing Date.
5. Transferred Employees. For a period of one (1) year from the Closing
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Date, Purchaser shall provide Seller with the following information in
writing within fifteen days of the end of each calendar month: (i) the
names of the Transferred Employees who no longer work for Purchaser;
(ii) the reason for the Transferred Employees no longer working for
Purchaser (i.e., resignation, forced relocation, termination with or
without Cause); and (iii) whether the required severance payment, if
any, has been paid to such Transferred Employees pursuant to Section
8.1 of the Agreement.
6. Purchase Price Allocation. The parties agree that the Purchase Price
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shall be allocated in accordance with the methodology set forth on
Schedule A.
7. Schedules. Schedules 1.0., 4.7(a), 4.7(b) and 4.8 are hereby amended
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and restated in their entirety as set forth on Schedule B hereto;
provided, however, that such Schedules shall be amended from time to
time by mutual agreement of the parties.
8. Section 2.4. The phrase "thirty (30) days" set forth in the first
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sentence of Section 2.4 of the Agreement shall be replaced with "sixty
(60) days."
9. Environmental Permits. The Environmental Permits to be delivered
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pursuant to Section 7.9 of the Agreement are attached hereto as Schedule
C.
10. Further Execution of Special Warranty Deeds and Assignments and
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Assumptions of Ground Leases. Notwithstanding the attachment of amended
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and restated Schedules 4.7(a) relating to Owned Real Estate and 4.7(b)
relating to Ground Leased Real Estate, due to the fact that a Commitment
has not yet been received for each parcel of Ground Leased Real Estate
and Owned Real Estate, certain Purchased Assets may have been
inappropriately categorized. In the event that any Commitment shall
disclose the existence of a Ground Leased Real Estate site, or an Owned
Real Estate site, not so previously categorized, or for which a special
warranty deed or an assignment and assumption of ground lease has not
been duly executed, whether relating to Purchased Assets in the United
States or in Canada,
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Seller and Purchaser shall each, in good faith, upon the request of the
other, duly execute and deliver, in recordable form, as necessary, the
special warranty deed, assignment and assumption of ground lease, state
specific transfer affidavits and transfer tax declarations and all such
other documents required or reasonably necessary to carry out the
purposes of the Agreement and the conveyance of the Purchased Assets as
intended herein.
11. Agreement. Except as expressly modified or supplemented hereby, the
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Agreement and all agreements, instruments, and documents executed or
delivered pursuant thereto have remained and shall remain at all times
in full force and effect in accordance with their respective terms.
12. Entire Agreement. Purchaser and Seller hereby agree that Section 15.7 of
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the Agreement is amended to include this letter agreement.
13. Software License. Purchaser hereby grants and the parties agree that
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they will enter into a mutually acceptable perpetual, royalty-free, non-
exclusive license to Seller with respect to the software set forth on
Schedule 1.2(i) and Schedule 13.3 of the Agreement within fifteen (15)
days from the date hereof.
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Please evidence your agreement to the foregoing by executing this letter in
the space provided below.
Sincerely yours,
PINNACLE TOWERS INC.,
A DELAWARE CORPORATION
BY:
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ITS:
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PINNACLE TOWERS CANADA INC.,
A NEW BRUNSWICK CORPORATION
BY:
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ITS:
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AGREED AND ACCEPTED AS OF
AUGUST 31, 1999.
MOTOROLA, INC., A DELAWARE
CORPORATION
BY:
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ITS:
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MOTOROLA CANADA LIMITED
BY:
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ITS:
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The schedules to this Agreement have been omitted pursuant to Item
601(b)(2) of Regulation S-K. The Registrant agrees to furnish these schedules
upon request.
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