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STOCK PURCHASE AGREEMENT
Between
AT&T WIRELESS SERVICES, INC.
and
XXXXXX COMMUNICATIONS CORPORATION
Dated as of November 6, 2000
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of November 6, 2000, between AT&T
Wireless Services, Inc., a Delaware corporation (the "Purchaser"), and Xxxxxx
Communications Corporation, an Oklahoma corporation (the "Company" or "Seller").
W I T N E S S E T H :
WHEREAS, the Company desires to issue and sell to Purchaser on the Closing
Date (as such term is defined herein) 200,000 shares of its Series A Convertible
Preferred Stock, par value $1.00 per share (the "Shares"), and the Purchaser,
subject to fulfillment of all of the conditions contained in this Agreement,
desires to purchase such Shares in exchange for the Purchase Price specified
herein;
WHEREAS, the parties hereto desire to set forth in writing their
understandings and agreements;
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the parties agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement:
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with that Person. For purposes of this
definition, "control" (including the terms "controlling" and "controlled") means
the power to direct or cause the direction of the management and policies of a
Person, directly or indirectly, whether through the ownership of securities or
partnership or other ownership interests, by contract or otherwise.
"Agreement" means this Stock Purchase Agreement, as the same may be
amended, modified or supplemented in accordance with the terms hereof.
"Amendment to Stockholder Agreement" means Amendment No. 1 to the
Stockholder Agreement, in the form attached hereto as Exhibit A.
"Applicable Conversion Price" has the meaning given such term in Section
2.2.
"Applicable Dividend Rate" has the meaning given such term in Section 2.2.
"Auction" means the auction by the FCC of certain licenses to provide
broadband personal communications services using spectrum in the broadband C and
F blocks, which auction is designated by the FCC as Auction Number 35 and is
currently scheduled by the FCC to begin on December 12, 2000.
"Average Price" has the meaning given such term in Section 2.2.
"Branding Agreement" has the meaning set forth in Section 5.4.
"BTA" has the meaning given such term in the Stockholders Agreement.
"Business Day" means any day other than a Saturday, Sunday or a legal
holiday in New York, New York or any other day on which commercial banks in New
York, New York are authorized by law or governmental decree to close.
"Certificate of Designation" means the Certificate of Designation of the
Powers, Preferences and Relative, Optional and Other Special Rights of Series A
Convertible Preferred Stock of the Company and Qualifications, Limitations and
Restrictions Thereof, in the form attached hereto as Exhibit B, upon completion
thereof by the insertion of the Applicable Dividend Rate and the Applicable
Conversion Price as provided in Section 2.2.
"Claim" has the meaning set forth in Section 7.4(a).
"Class A Common Stock" means the Class A Common Stock, $.001 par value per
share, of the Company.
"Closing" has the meaning set forth in Section 2.3.
"Closing Date" has the meaning set forth in Section 2.3.
"Closing Price" has the meaning given such term in the Certificate of
Designation.
"Company" has the meaning set forth in the preamble.
"Consents" means all consents and approvals of Governmental Authorities or
other third parties, including under the HSR Act, necessary to authorize,
approve or permit the parties hereto to consummate the Transactions.
"Conversion Price" has the meaning given such term in the Certificate of
Designation.
"DOJ" means the United States Department of Justice.
"Downpayment Deadline" means the last day for making the downpayment on PCS
Licenses won by a bidder in the Auction under the FCC's rules for such Auction.
"FCC" means the Federal Communications Commission or similar regulatory
authority established in replacement thereof.
"FCC Conflict" has the meaning given such term in the Stockholders
Agreement.
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"FTC" means the Federal Trade Commission or similar regulatory authority
established in replacement thereof.
"Governmental Authority" means a Federal, state or local court,
legislature, governmental agency (including, without limitation, the United
States Department of Justice), commission or regulatory or administrative
authority or instrumentality.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended.
"Indemnified Party" has the meaning set forth in Section 7.4(a).
"Indemnifying Party" has the meaning set forth in Section 7.4(a).
"X.X. Childs" means the JWC Group Stockholders as that term is defined in
the Stockholders Agreement.
"Law" means applicable common law and any statute, ordinance, code or other
law, rule, permit, permit condition, regulation, order, decree, technical or
other standard, requirement or procedure enacted, adopted, promulgated, applied
or followed by any Governmental Authority.
"License" means a license, permit, certificate of authority, waiver,
approval, certificate of public convenience and necessity, registration or other
authorization, consent or clearance to construct or operate a facility,
including any emissions, discharges or releases therefrom, or to transact an
activity or business, to construct a tower or to use an asset or process, in
each case issued or granted by a Governmental Authority.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, right of first refusal or right of others therein, or
encumbrance of any nature whatsoever in respect of such asset.
"Losses" means in respect of any obligation to indemnify any Person
pursuant to the terms of this Agreement, any losses, claims, taxes, damages,
liabilities, deficiencies, obligations, judgments, settlements (including,
without limitation, settlements with respect to any Governmental Authority) and
out-of-pocket costs and expenses (whether or not arising out of third party
claims), including without limitation interest and penalties, costs of
investigation and reasonable attorneys' fees and disbursements.
"Material Adverse Effect" means a material adverse effect on the business,
financial condition, assets, liabilities or results of operations of the Person
specified and its subsidiaries taken as a whole.
"MTA" has the meaning given such term in the Stockholders Agreement.
"New Preferred" has the meaning set forth in Section 5.5.
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"New York Courts" has the meaning set forth in Section 9.5.
"Oklahoma 5" has the meaning set forth in Section 5.5.
"Operating Agreement" has the meaning set forth in Section 5.3.
"Original Holder" has the meaning set forth in the Certificate of
Designation.
"Person" means an individual, corporation, partnership, limited liability
company, association, joint stock company, Governmental Authority, business
trust, unincorporated organization, or other legal entity.
"PCS License" means a License acquired by the Company or an Affiliate of
the Company in the Auction from the FCC authorizing it to construct and operate
a mobile communications system using the 1850 MHz to 1910 MHz and 1930 MHz to
1990 MHz frequencies, or portions thereof, in a particular BTA or MTA.
"Purchase Price" has the meaning set forth in Section 2.1.
"Right of First Offer Agreement" means the PCS Transfer Rights Agreement
among the parties specified therein, in the form attached hereto as Exhibit C.
"Section 7.2 Indemnified Party" has the meaning set forth in Section 7.2.
"Section 7.3 Indemnified Party" has the meaning set forth in Section 7.3.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Seller" has the meaning set forth in the preamble.
"Shares" has the meaning set forth in the first recital.
"Stockholders Agreement" means the Stockholders and Investor Rights
Agreement dated as of January 31, 2000 among the Company, Purchaser and the
other Persons that are parties thereto.
"Trading Days" has the meaning given such term in the Certificate of
Designation.
"Transaction Documents" means the Amendment to Stockholders Agreement, the
Right of First Offer Agreement and the Certificate of Designation.
"Transactions" means the transactions contemplated by this Agreement.
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When a reference is made in this Agreement to an Article or a Section, such
reference shall be to an Article or a Section of this Agreement unless otherwise
indicated. Unless the context otherwise requires, the terms defined hereunder
shall have the meanings therein specified for all purposes of this Agreement,
applicable to both the singular and plural forms of any of the terms defined
herein. Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." The use of a gender herein shall be deemed to include the neuter,
masculine and feminine genders whenever necessary or appropriate. Whenever the
word "herein" or "hereof" is used in this Agreement, it shall be deemed to refer
to this Agreement and not to a particular Section of this Agreement unless
expressly stated otherwise.
ARTICLE 2
PURCHASE AND SALE OF SECURITIES; CLOSING
Section 2.1. Purchase and Sale
Upon the terms and subject to the conditions hereof and in reliance upon
the representations, warranties and agreements herein contained, Purchaser
agrees to purchase at the Closing, and the Company agrees to sell and issue to
Purchaser at the Closing, (except as otherwise provided in Section 5.5) the
Shares, for the aggregate purchase price (the "Purchase Price") of Two Hundred
Million Dollars ($200,000,000.00), which is equal to One Thousand Dollars
($1,000.00) per Share, which shall represent, immediately after Closing, one
hundred percent (100%) of the issued and outstanding shares of Series A
Convertible Preferred Stock of the Company.
Section 2.2. Dividend Rate; Conversion Price
The Company and Purchaser have agreed that the dividend rate and the
Conversion Price applicable to the Shares shall be dependent upon the average
Closing Price of the Class A Common Stock for the five (5) Trading Days
immediately prior to the Closing Date (the "Average Price"). The Company and
Purchaser agree that the dividend rate and Conversion Price applicable to the
Shares shall be the dividend rate and Conversion Price corresponding to the
Average Price set forth on Schedule 2.2 (the "Applicable Dividend Rate" and
"Applicable Conversion Price", respectively); provided, however, if the Average
Price shall be less than $12.00 per share, the Average Price for purposes of
this Agreement shall be $12.00 per share, and if the Average Price is greater
than $22.00 per share, the Average Price for purposes of this Agreement shall be
$22.00 per share. The parties agree that on the Closing Date the Applicable
Dividend Rate and Applicable Conversion Price shall be properly reflected in the
Certificate of Designation filed with the Secretary of State of Oklahoma. As an
illustration, if the Average Price is $20, the Applicable Dividend Rate shall be
6.55% and the Applicable Conversion Price shall be $24.30 (appropriately
adjusted in the case of the Applicable Conversion Price for stock splits and
stock dividends effected after the date hereof).
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Section 2.3. Closing
Subject to the satisfaction or waiver of each of the conditions to Closing
set forth in Article 6 hereof, the closing of the Transactions (the "Closing")
shall occur on the earlier of (a) the second Business Day prior to the
Downpayment Deadline and (b) March 1, 2001, at the offices of Xxxxxxxx Xxxxxx
Xxxxxx & Xxxxxxx LLP, 875 Third Avenue, New York, New York, at 10:00 a.m. local
time or at such other time as the parties shall mutually agree (the "Closing
Date"). At the Closing, the Company shall deliver to Purchaser a certificate
representing the Shares against payment of the Purchase Price therefor.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
Section 3.1. Organization, Power and Authority
(a) It is a corporation duly formed, validly existing and in good standing
under the Laws of its jurisdiction of incorporation and has the requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted.
(b) It has the requisite power and authority to execute, deliver and
perform this Agreement, the Transaction Documents and each other instrument,
document, certificate and agreement required or contemplated to be executed,
delivered and performed by it hereunder to which it is or will be a party.
(c) It is duly qualified to do business in each jurisdiction where the
character of its properties owned or held under lease or the nature of its
activities makes such qualification necessary other than any such jurisdiction
in which the failure to be so qualified would not have a Material Adverse Effect
on it or materially adversely affect the Transactions.
(d) Upon approval by its board of directors, this Agreement, and at Closing
the Transaction Documents, will have been duly executed, delivered and
authorized by its board of directors and no other proceedings on its part which
have not been taken (including, approval of its stockholders) will be necessary
to authorize this Agreement or the Transaction Documents or to consummate the
Transactions.
(e) This Agreement has been duly executed and delivered by it and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar Laws affecting or relating
to enforcement of creditors' rights generally and may be subject to general
principles of equity.
Section 3.2. Consents; No Conflicts
Neither the execution, delivery and performance by it of this Agreement nor
the consummation of the Transactions will (a) conflict with, or result in a
breach or violation
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of, any provision of its Restated Certificate of Incorporation or Bylaws; (b)
constitute, with or without the giving of notice or passage of time or both, a
breach, violation or default, create a Lien, or give rise to any right of
termination, modification, cancellation, prepayment or acceleration, under (i)
any Law or License or (ii) any note, bond, mortgage, indenture, lease, agreement
or other instrument, in each case which is applicable to or binding upon it or
any of its assets; or (c) except as set forth on Schedule 3.2, require any
Consent, other than the approval of its board of directors, except in each case,
where such breach, violation, default, Lien, right, or the failure to obtain or
give such Consent would not have a Material Adverse Effect on it or materially
adversely affect the Transactions. To its knowledge, as of the date hereof,
there is no fact relating to it or its Affiliates that would be reasonably
expected to prevent it from consummating the Transactions or performing its
obligations under this Agreement.
Section 3.3. Litigation
There is no action, proceeding or investigation pending or, to its
knowledge, threatened against it or any of its properties or assets that would
be reasonably expected to have a material adverse effect on its ability to
consummate the Transactions or to fulfill its obligations under this Agreement
or which seeks to prevent or challenge the Transactions.
Section 3.4. Brokers
It has not employed any broker, finder or investment banker or incurred any
liability for any brokerage fees, commissions or finder's fees in connection
with the Transactions.
Section 3.5. Private Placement
It is acquiring the Shares for its own account with the present intention
of holding such Shares for purposes of investment, and it has no intention of
selling such Shares in a public distribution in violation of the federal
securities laws or any applicable state securities laws. It is an accredited
investor as that term is defined in Rule 501 under the Securities Act by virtue
of part (a)(3) of that rule. Further, it has knowledge and experience in
financial and business matters, it is capable of evaluating the merits and risks
of the prospective investment in the Shares and acknowledges that the
certificates representing the Shares will bear a legend stating that the Shares
have not been registered under the Securities Act and may not be transferred
except pursuant to an effective registration statement or an exemption from
registration under the Securities Act.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
Section 4.1. Organization, Power and Authority
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(a) It is a corporation duly organized, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation and has the
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted.
(b) It has the requisite power and authority to execute, deliver and
perform this Agreement, the Transaction Documents and each other instrument,
document, certificate and agreement required or contemplated to be executed,
delivered and performed by it hereunder to which it is or will be a party.
(c) It is duly qualified to do business in each jurisdiction where the
character of its properties owned or held under lease or the nature of its
activities makes such qualification necessary other than any such jurisdiction
in which the failure to be so qualified would not have a Material Adverse Effect
on it or materially adversely affect the Transactions.
(d) Upon approval by its board of directors, this Agreement, and at Closing
the Transaction Documents, will have been duly executed, delivered and
authorized by its board of directors and no other proceedings on its part which
have not been taken (including, approval of its stockholders) will be necessary
to authorize this Agreement or the Transaction Documents or to consummate the
Transactions.
(e) This Agreement has been duly executed and delivered by it and
constitutes the valid and binding obligation of it, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar Laws affecting or relating
to enforcement of creditors' rights generally and may be subject to general
principles of equity.
Section 4.2. Consents; No Conflicts
Neither the execution, delivery and performance of this Agreement by it nor
the consummation of the Transactions will (a) conflict with, or result in a
breach or violation of, any provision of its Amended and Restated Certificate of
Incorporation or Bylaws; (b) constitute, with or without the giving of notice or
passage of time or both, a breach, violation or default, create a Lien, or give
rise to any right of termination, modification, cancellation, prepayment or
acceleration, under (i) any Law or License, or (ii) any note, bond, mortgage,
indenture, lease, agreement or other instrument, in each case which is
applicable to or binding upon it or any of its assets; or (c) except as set
forth on Schedule 4.2, require any Consent, other than the approval of its board
of directors (which board approval has been obtained), except in each case where
such breach, violation, default, Lien, right, or the failure to obtain or give
such Consent would not have a Material Adverse Effect on it or materially
adversely affect the Transactions. To its knowledge, as of date hereof, there is
no fact relating to it or its Affiliates that would be reasonably expected to
prevent it from consummating the Transactions or performing its obligations
under this Agreement.
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Section 4.3. Litigation
There is no action, proceeding or investigation pending or, to its
knowledge, threatened against it or any of its properties or assets that would
have a material adverse effect on its ability to consummate the Transactions to
which it is a party or to fulfill its obligations under this Agreement or which
seeks to prevent or challenge the Transactions.
Section 4.4. Brokers
It has not employed any broker, finder or investment banker or incurred any
liability for any brokerage fees, commissions or finder's fees in connection
with the Transactions.
Section 4.5. Valid Issuance of Shares
As of the Closing Date the Shares to be issued to Purchaser hereunder will
have been duly and validly reserved for issuance and authorized and when issued,
sold and delivered in accordance with the terms hereof will be duly and validly
issued, fully paid, nonassessable and free and clear of any Liens or other third
party rights or interests whatsoever (including without limitation preemptive
rights) other than as provided for in the Stockholders Agreement, as it will be
amended by the Amendment to the Stockholders Agreement. The shares of Seller
that Purchaser already owns, together with the Shares upon consummation of the
Transactions, will not constitute "control shares" as defined by Section 1145 of
the Oklahoma General Corporation Act.
Section 4.6. Use of Purchase Price
Seller shall use the Purchase Price for the Shares to finance acquisitions
of licenses, telecommunications assets or stock of license holders, and for
general corporate purposes; provided, however, that no portion of the Purchase
Price shall be used, directly or indirectly, to make any payments of any kind to
X.X. Childs, or any of its Affiliates, or Xxxxxx XX Limited Partnership, an
Oklahoma limited partnership.
Section 4.7. Public Filings
The filings of the Company with the Securities and Exchange Commission
conform, and any post-effective amendments or supplements to such filings did,
when they became effective or were filed with the Securities and Exchange
Commission, as the case may be, conform in all respects to the requirements of
the Securities Act and the Securities Exchange Act, as applicable, and the rules
and regulations promulgated pursuant thereto and did not, as of their effective
date and as of the applicable filing date with respect to any post-effective
amendments or supplements, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein (in light of the circumstances under which they were
made) not misleading.
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Section 4.8. No Material Adverse Change
Since the date of the last balance sheet of the Company filed with the
Securities and Exchange Commission pursuant to the Securities Exchange Act to
the date hereof, there has been no material adverse change in the business,
financial condition, assets or operations of the Company and its subsidiaries
taken as a whole.
Section 4.9. DCC PCS, Inc.
DCC PCS, Inc. is a wholly-owned subsidiary of the Company. DCC PCS, Inc. is
eligible under the FCC's rules to hold the PCS Licenses.
ARTICLE 5
COVENANTS
Section 5.1. Consummation of Transactions
Each party shall use all commercially reasonable efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, all things necessary,
proper or advisable and consistent with applicable law to carry out all of their
respective obligations under this Agreement and to consummate the Transactions
(which efforts shall not include any obligation of the Company or its Affiliates
to bid more than the Company deems appropriate, in its sole discretion, to
acquire PCS Licenses in the Auction), which efforts shall include, without
limitation, the following:
(a) The parties shall use all commercially reasonable efforts to cause the
Closing to occur and the Transactions to be consummated in accordance with the
terms hereof, and, without limiting the generality of the foregoing, to obtain
all necessary Consents including the approval of this Agreement and the
Transactions under the HSR Act and by all Governmental Authorities, and to make
all filings with and to give all notices to third parties which may be necessary
or reasonably required in order for the parties to consummate the Transactions.
Each party shall pay any filing or comparable fees required to be paid by such
party under the HSR Act.
(b) Each party shall furnish to the other party all information concerning
such party and its Affiliates reasonably required for inclusion in any
application or filing to be made by such party or any other party in connection
with the Transactions.
(c) Upon the request of any other party, each party shall forthwith execute
and deliver, or cause to be executed and delivered, such further instruments of
assignment, transfer, conveyance, endorsement, direction or authorization and
other documents as may reasonably be requested by such party in order to
effectuate the purposes of this Agreement.
(d) Nothing in this Agreement shall be construed to require Purchaser to
consummate the Transactions if any Consent by the FCC, FTC or DOJ expressly
would require that it or any of its Affiliates (i) divest or hold separate any
of its assets existing as of the date hereof or (ii) otherwise take or commit to
take any action that limits its freedom of action in any material respect with
respect to any of its businesses, product lines or assets existing as of the
date hereof; provided, however, that this Section 5.1(d)
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shall not apply to any FCC, FTC or DOJ requirement to Consent for the
Transactions arising from or relating to any actions taken by Purchaser or its
Affiliates after the date hereof.
(e) Each party shall promptly notify the other party in writing when and if
its board of directors has approved this Agreement and the Transaction
Documents.
Section 5.2. Auction Participation
Neither the Company nor its Affiliates will directly or indirectly
participate in the Auction, except through DCC PCS, Inc., and the Company will
not enter into any commitments or agreements with respect thereto with any
Person other than Purchaser except as expressly provided herein.
Section 5.3. Access to Spectrum
Consistent with applicable FCC requirements concerning the Company's
control of any PCS Licenses issued in the Auction to the Company or an Affiliate
of the Company, promptly after the Downpayment Deadline, the Company and
Purchaser agree to negotiate in good faith an operating agreement which will
provide to Purchaser access to the network to be built by the Company or its
Affiliates on the PCS spectrum in the markets covered by such PCS Licenses
(other than those markets Purchaser and the Company mutually agree to exclude)
(the "Operating Agreement"). Terms of the Operating Agreement will include a
minimum ten year term. Pricing for access to the network under such Operating
Agreement shall be fair and reasonable and determined given consideration to
spectrum, network construction and operating costs to be incurred by the Company
and its Affiliates. In addition, the pricing, terms and conditions will be such
that the Company will provide access to the network facilities to Purchaser on a
priority basis, consistent with all applicable FCC requirements. The Operating
Agreement will provide that the Company shall construct and operate a PCS System
in the markets covered by such Operating Agreement that is interoperable with
Purchaser's wireless communications systems in other geographic markets. The
Operating Agreement will also set forth mutually agreeable quality standards and
a mutually agreeable build out schedule with respect to the provision by the
Company of PCS wireless services on the network.
Section 5.4. Branding
Consistent with applicable FCC requirements, each of the Company and
Purchaser agree to negotiate in good faith a branding agreement ("Branding
Agreement") promptly after the later of (i) the Closing and (ii) the Downpayment
Deadline. In any event, so long as Purchaser holds at least 100,000 Shares (or
the Class A Common Stock acquired upon the conversion thereof) or 100,000 shares
of New Preferred, the Company and its subsidiaries will not adopt any new brands
for its wireless services (other than its proprietary brands) without
Purchaser's consent.
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Section 5.5. Oklahoma 5
The Purchaser's ownership of the FCC License for Oklahoma 5 RSA ("Oklahoma
5") would create an FCC Conflict if the Shares were issued to Purchaser on the
date hereof. Purchaser shall use all commercially reasonable efforts to sell its
interest in Oklahoma 5 prior to the Closing Date or otherwise take action such
that an FCC Conflict relating to Oklahoma 5 will not arise as a result of the
purchase of the Shares on the Closing Date. In the event an FCC Conflict would
be created by the purchase of the Shares as of the Closing Date as a result of
Purchaser's ownership or interest in Oklahoma 5, then, provided all conditions
to Closing have or will be satisfied on the Closing Date (other than obtaining
any Consent pertaining to Oklahoma 5), in lieu of the Purchaser's purchase, and
the Company's issuance, of the Shares on the Closing Date, the Purchaser shall
purchase, and the Company shall issue, $200 million of a new class of the
Company's Preferred Stock ("New Preferred"). The terms of the New Preferred
shall be: (a) the shares of New Preferred shall be non-voting and shall not be
convertible by the holder into other equity securities of the Company, (b) the
shares of New Preferred shall provide for a fixed dividend rate equal to the
Applicable Dividend Rate on the Closing and shall be mandatorily redeemable by
the Company on the tenth anniversary of the date of their issuance, (c) shall,
at the Purchaser's option, be mandatorily exchangeable for Shares (with an
equivalent liquidation value as of the date of such exchange) if upon such
exchange no FCC Conflict would result, and (d) to the fullest extent possible,
consistent with FCC rules and regulations, as similar as possible to the other
principal terms of the Shares.
Section 5.6. Certain Actions
From the date hereof until the Closing, without Purchaser's prior written
consent Seller shall not directly or indirectly undertake any of the actions
that would be prohibited without the approval of the Original Holder under
Section 6(b) of the form of Certificate of Designation set forth as Exhibit B;
provided, however, that Purchaser's consent to such actions shall not be
required if Purchaser is in material default of its obligations under this
Agreement and has failed to cure such default within twenty days after written
notice thereof from Seller.
ARTICLE 6
CLOSING CONDITIONS
Section 6.1. Conditions to Obligations of All Parties
The obligation of each of the parties to consummate the Transactions
contemplated to occur at the Closing shall be conditioned on the following,
unless waived by each of the parties at or prior to the Closing:
(a) All Consents by any Governmental Authority required to permit the
consummation of the Transactions, the failure to obtain or make which would be
reasonably expected to have a Material Adverse Effect on Seller or Purchaser or
to materially adversely affect the Transactions shall have been obtained or
made. Without limiting the generality of the foregoing, any applicable waiting
period under the HSR Act shall have expired or been terminated.
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(b) No preliminary or permanent injunction or other order, decree or ruling
issued by a Governmental Authority, nor any statute, rule, regulation or
executive order promulgated or enacted by any Governmental Authority, shall be
in effect that would impose material limitations on the ability of any party to
consummate the Transactions or prohibit such consummation.
(c) All necessary third parties shall have delivered to the Company and
Purchaser executed counterpart signature pages to each of the Amendment to
Stockholder Agreement and Right of First Offer Agreement.
Section 6.2. Conditions to Obligations of Seller
The obligation of Seller to consummate the Transactions contemplated to
occur at the Closing shall be further conditioned upon the satisfaction or
fulfillment, at or prior to the Closing, of the following conditions by
Purchaser, unless waived by Seller at or prior to the Closing:
(a) The representations and warranties of Purchaser contained herein shall
be true and correct in all material respects (except for representations and
warranties that are qualified as to materiality, which shall be true and correct
in all respects), in each case when made and at and as of the Closing (except
for representations and warranties made as of a specified date, which shall be
true and correct as of such date) with the same force and effect as though made
at and as of such time.
(b) Purchaser shall have performed in all material respects all agreements
contained herein or required to be performed by it at or before the Closing.
(c) An officer of Purchaser shall have delivered to Seller a certificate,
dated the Closing Date, certifying as to the fulfillment of the conditions set
forth in paragraphs (a) and (b) above.
(d) The board of directors or other appropriate governing body of Seller
shall have approved the Transactions.
(e) Purchaser shall have delivered to Seller executed counterpart signature
pages to each of the Amendment to Stockholder Agreement and the Right of First
Offer Agreement.
(f) Purchaser shall have wired to the Company, pursuant to wire
instructions delivered to Purchaser at least three days in advance of the
Closing, the Purchase Price.
(g) All corporate and other proceedings of Purchaser in connection with the
Transactions, and all documents and instruments incident thereto, shall be
reasonably satisfactory in form and substance to Seller, and Purchaser shall
have delivered to Seller such receipts, documents, instruments and certificates,
in form and substance reasonably satisfactory to Seller which Seller shall have
reasonably requested in order to consummate the Transactions.
13
Section 6.3. Conditions to the Obligations of Purchaser
The obligation of the Purchaser to consummate the Transactions contemplated
to occur at the Closing shall be further conditioned upon the satisfaction or
fulfillment, at or prior to the Closing, of the following conditions, unless
waived by it at or prior to the Closing:
(a) The representations and warranties of Seller contained herein shall be
true and correct in all material respects (except for representations and
warranties that are qualified as to materiality, which shall be true and correct
in all respects), in each case when made and at and as of the Closing (except
for representations and warranties made as of a specified date, which shall be
true and correct as of such date) with the same force and effect as though made
at and as of such time.
(b) Seller shall have performed in all material respects all agreements
contained herein or required to be performed by it at or before the Closing.
(c) An officer of Seller shall have delivered to Purchaser a certificate,
dated the Closing Date, certifying as to the fulfillment of the conditions set
forth in paragraphs (a) and (b) above.
(d) X.X. Childs shall have waived its preemptive rights with respect to the
Transactions and shall have delivered an executed counterpart of the Amendment
to Stockholders Agreement.
(e) Seller shall have delivered to Purchaser executed counterpart signature
pages to each of the Amendment to Stockholder Agreement and the Right of First
Offer Agreement.
(f) The board of directors or other appropriate governing body of Purchaser
or the appropriate Affiliate thereof shall have approved the Transactions.
(g) The Certificate of Designation completed in accordance with the
provisions of Section 2.2 shall have been duly executed by the Company and filed
with the Secretary of State of the State of Oklahoma and shall be in full force
and effect under the laws of the State of Oklahoma as of the Closing.
(h) Purchaser shall have received from outside legal counsel to Seller a
legal opinion reasonably acceptable to Purchaser with respect to the matters set
forth in Sections 4.1, 4.3 and 4.5 hereof.
(i) All corporate and other proceedings of Seller in connection with the
Transactions, and all documents and instruments incident thereto, shall be
reasonably satisfactory in form and substance to Purchaser, Seller shall have
delivered to the Purchaser all such receipts, documents, instruments and
certificates, in form and substance reasonably satisfactory to Purchaser, which
Purchaser shall have reasonably requested in order to consummate the
Transactions.
14
ARTICLE 7
INDEMNIFICATION
Section 7.1. Survival
The representations and warranties made in this Agreement shall survive the
Closing without regard to any investigation made by any of the parties hereto
until the second anniversary of the Closing and shall thereupon expire together
with any right to indemnification in respect thereof (except to the extent a
written notice asserting a claim for breach of any such representation or
warranty and describing such claim in reasonable detail shall have been given
prior to the expiration of the applicable survival period to the party which
made such representation or warranty).
Section 7.2. Indemnification by Purchaser
Purchaser shall indemnify and hold harmless Seller and its Affiliates,
directors, shareholders, officers, employees, agents and/or the legal
representatives of any of them (each, a "Section 7.2 Indemnified Party"), from
and against any and all Losses incurred or suffered by him/her or it arising out
of or resulting from (a) any representation or warranty of Purchaser contained
in this Agreement being untrue in any material respect as of the date on which
it was made or (b) any material default by Purchaser or any of its Affiliates in
the performance of their respective obligations under this Agreement, except to
the extent (but only to the extent) any such Losses arise out of or result from
the gross negligence or willful misconduct of such Section 7.2 Indemnified Party
or its Affiliates.
Section 7.3. Indemnification by Seller
Seller shall indemnify and hold harmless Purchaser and its Affiliates,
directors, shareholders, officers, employees, agents and/or the legal
representatives of any of them (each, a "Section 7.3 Indemnified Party"), from
and against any and all Losses incurred or suffered by him/her or it arising out
of or resulting from (a) any representation or warranty of Seller contained in
this Agreement being untrue in any material respect as of the date on which it
was made or (b) any material default by Seller or any of its Affiliates in the
performance of their respective obligations under this Agreement, except to the
extent (but only to the extent) any such Losses arise out of or result from the
gross negligence or willful misconduct of such Section 7.3 Indemnified Party or
its Affiliates.
Section 7.4. Procedures
(a) The terms of this Section 7.4 shall apply to any claim (a "Claim") for
indemnification under the terms of Sections 7.2 or 7.3 for Losses arising out of
or relating to matters asserted by third parties. The Section 7.2 Indemnified
Party or Section 7.3 Indemnified Party (each, an "Indemnified Party"), as the
case may be, shall give prompt written notice of such Claim to the indemnifying
party (the "Indemnifying Party") under the applicable Section, which party may
assume the defense thereof, provided that any delay or failure to so notify the
Indemnifying Party shall relieve the Indemnifying Party of its obligations
hereunder only to the extent, if at all, that it is materially prejudiced by
reason of such delay or failure. The Indemnified Party shall have the right to
approve
15
any counsel selected by the Indemnifying Party and to approve the terms of any
proposed settlement, such approval not to be unreasonably delayed or withheld
(unless, in the case of approval of a proposed settlement, such settlement
provides only, as to the Indemnified Party, the payment of money damages
actually paid by the Indemnifying Party and a complete release of the
Indemnified Party in respect of the claim in question). Notwithstanding any of
the foregoing to the contrary, the provisions of this Article 7 shall not be
construed so as to provide for the indemnification of any Indemnified Party for
any liability to the extent (but only to the extent) that such indemnification
would be in violation of applicable law or that such liability may not be
waived, modified or limited under applicable law, but shall be construed so as
to effectuate the provisions of this Article 7 to the fullest extent permitted
by law.
(b) In the event that the Indemnifying Party undertakes the defense of any
Claim, the Indemnifying Party will keep the Indemnified Party advised as to all
material developments in connection with such Claim, including, but not limited
to, promptly furnishing the Indemnified Party with copies of all material
documents filed or served in connection therewith.
(c) In the event that the Indemnifying Party fails to assume the defense of
any Claim within ten Business Days after receiving written notice thereof, the
Indemnified Party shall have the right, subject to the Indemnifying Party's
right to assume the defense pursuant to the provisions of this Article 7, to
undertake the defense, compromise or settlement of such Claim for the account of
the Indemnifying Party. Unless and until the Indemnified Party assumes the
defense of any Claim, the Indemnifying Party shall advance to the Indemnified
Party any of its reasonable attorneys' fees and other costs and expenses
incurred in connection with the defense of any such action or proceeding. Each
Indemnified Party shall agree in writing prior to any such advancement that, in
the event he or it receives any such advance, such Indemnified Party shall
reimburse the Indemnifying Party for such fees, costs and expenses to the extent
that it shall be determined that he or it was not entitled to indemnification
under this Article 7.
(d) In no event shall an Indemnifying Party be required to pay in
connection with any Claim for more than one firm of counsel (and local counsel)
for each of the following groups of Indemnified Parties: (i) Purchaser, its
Affiliates, directors, shareholders, officers, employees, agents and/or the
legal representatives of any of them; and (ii) Seller, its Affiliates,
directors, shareholders, officers, employees, agents and/or the legal
representatives of any of them.
ARTICLE 8
TERMINATION
Section 8.1. Termination
In addition to any other rights of termination set forth herein, this
Agreement may be terminated, and the Transactions abandoned, without further
obligation of any party (except as set forth herein), at any time prior to the
Closing Date:
16
(a) by mutual written consent of the parties;
(b) by either party by written notice to the other party, if the
consummation of the Transactions shall not have occurred by March 31, 2001;
(c) on or after November 11, 2000, by either party, if Purchaser has not
received written notice from Seller that Seller's board of directors has
approved the execution and delivery of this Agreement and, at Closing, the
Transaction Documents, it being agreed that any such written notice if delivered
will constitute irrevocable satisfaction of the condition set forth in Section
6.2(d);
(d) on or after November 24, 2000, by either party, if Seller has not
received written notice from Purchaser that Purchaser's board of directors has
approved the execution and delivery of this Agreement and, at Closing, the
Transaction Documents, it being agreed that any such written notice if delivered
will constitute irrevocable satisfaction of the condition set forth in Section
6.3(f);
(e) by either party (provided that such party is not otherwise in breach of
this Agreement) if (i) the other party has breached a material representation,
warranty, covenant or agreement set forth herein, (ii) such breach would entitle
the nonbreaching party not to consummate the Transactions at the Closing and
(iii) the breaching party fails to cure such breach within sixty (60) days of
written notice thereof from the non-breaching party.
Section 8.2. Effect of Termination
In the event of a termination of this Agreement, neither party hereto shall
have any liability or further obligation to the other party, except as set forth
in paragraph (b) below, and except that nothing herein will relieve any party
from liability for any breach by such party of this Agreement.
(a) In the event of a termination of this Agreement pursuant to Section
8.1, all provisions of this Agreement shall terminate, except Articles 7 and 9.
(b) Except as otherwise expressly provided in this Agreement, all costs and
expenses incurred in connection with this Agreement and the Transactions shall
be paid by the party incurring such expenses.
ARTICLE 9
MISCELLANEOUS PROVISIONS
Section 9.1. Amendment and Modification
This Agreement may be amended, modified or supplemented only by written
agreement of each of the parties.
17
Section 9.2. Waiver of Compliance; Consents
Any failure of any of the parties to comply with any obligation, covenant,
agreement or condition herein may be waived by the party or parties entitled to
the benefits thereof only by a written instrument signed by the party granting
such waiver, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirement
for a waiver of compliance as set forth in this Section 9.2.
Section 9.3. Notices
All notices or other communications hereunder shall be in writing and shall
be given (and shall be deemed to have been duly given upon receipt) by delivery
in person against receipt, by facsimile transmission with confirmation of
receipt, or by registered or certified mail (return receipt requested), postage
prepaid, with an acknowledgment of receipt signed by the addressee or an
authorized representative thereof, addressed as follows (or to such other
address for a party as shall be specified by like notice; provided that notice
of a change of address shall be effective only upon receipt thereof):
If to Purchaser, to:
AT&T Wireless Services, Inc.
0000 000xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Seller, to:
Xxxxxx Communications Corporation
00000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
18
With a copy to:
Xxxxxxx & Xxxxxx, LLP
0000 XxxxXxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 9.4. Parties in Interest; Assignment
This Agreement is binding upon and is solely for the benefit of the parties
hereto and their respective permitted successors, legal representatives and
permitted assigns. Neither Seller nor Purchaser may assign its rights and
obligations hereunder without the prior written consent of the other party;
provided, however, that Purchaser may, without such consent, assign its right,
title and interest in, to and under this Agreement to a wholly owned subsidiary
of AT&T Corp., but shall remain responsible for its obligations hereunder. Any
assignment in violation of this Section 9.4 shall be null and void and without
any force or effect.
Section 9.5. Applicable Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to the conflicts of law
principles thereof. The parties hereto hereby irrevocably and unconditionally
consent to submit to the non-exclusive jurisdiction of the courts of the State
of New York and of the United States of America located in the County, the City
and the State of New York (the "New York Courts") for any litigation arising out
of or relating to this Agreement and the Transactions, waive any objection to
the laying of venue of any such litigation in the New York Courts and agrees not
to plead or claim in any New York Court that such litigation brought therein has
been brought in an inconvenient forum.
Section 9.6. Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
Section 9.7. Interpretation
The article and section headings contained in this Agreement are for
convenience of reference only, are not part of the agreement of the parties and
shall not affect in any way the meaning or interpretation of this Agreement.
Section 9.8. Entire Agreement
This Agreement, including the exhibits and schedules hereto and thereto and
the certificates and instruments delivered pursuant to the terms of this
Agreement, embody
19
the entire agreement and understanding of the parties hereto in respect of the
Transactions. There are no restrictions, promises, representations, warranties,
covenants or undertakings, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such Transactions.
Section 9.9. Confidentiality; Publicity
(a) Each of the Company and Purchaser, on behalf of itself and its
affiliates, agrees that it will use its reasonable best efforts to maintain the
confidentiality of all non-public information disclosed to it by the other or
obtained as a result of negotiating or entering into this Agreement and the
Transaction Documents and will not, without the prior written consent of the
disclosing party, use such information other than in connection with the
Transactions, provided, however, that the foregoing confidentiality obligations
do not apply to information that (i) was or becomes available to the public
through no action by the receiving party, (ii) was or becomes available to such
receiving party on a non-confidential basis or (iii) in the reasonable opinion
of legal counsel, must be disclosed pursuant to Law or the requirements of any
national securities exchange; provided further, however, that in the case of
(iii) above where disclosure is sought pursuant to subpoena, litigation
discovery request or other similar legal process, the disclosing party shall
submit the proposed disclosure to the non-disclosing party, who shall have an
opportunity, at its expense, to contest such disclosure, move for a protective
order or otherwise attempt to narrow the scope thereof to the extent permitted
under Law.
(b) So long as this Agreement is in effect, the parties agree to consult
with each other in issuing any press release or otherwise making any public
statement with respect to the Transactions, and no party shall issue any press
release or make any such public statement prior to such consultation, except as
may be required by Law or by the rules of any national securities exchange.
Section 9.10. Specific Performance
The parties hereto agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any New York Courts.
Section 9.11. Remedies Cumulative
All rights, powers and remedies provided under this Agreement or otherwise
available in respect hereof at law or in equity shall be cumulative and not
alternative, and the exercise or beginning of the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
20
Section 9.12. Severability
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. If any court determines that any covenant or any part of any
covenant is invalid or unenforceable, such covenant shall be enforced to the
extent permitted by such court, and all other covenants shall not thereby be
affected and shall be given full effect, without regard to the invalid portions.
Section 9.13. Beneficiaries of Agreement
The representations, warranties, covenants and agreements expressed in this
Agreement are for the sole benefit of the other parties hereto and the Section
7.2 Indemnified Parties and Section 7.3 Indemnified Parties and are not intended
to benefit, and may not be relied upon or enforced by, any other party as a
third party beneficiary or otherwise.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
AT&T WIRELESS SERVICES, INC.
By:______________________________
Name:
Title:
XXXXXX COMMUNICATIONS CORPORATION
By:______________________________
Name:
Title:
22
SCHEDULE 2.2
----------------- ---------- ------------------------ --------------------------
Applicable Conversion
Average Price Premium Price Applicable Dividend Rate
----------------- ---------- ------------------------ --------------------------
----------------- ---------- ------------------------ --------------------------
12 55.5% $18.67 15.00%
----------------- ---------- ------------------------ --------------------------
13 52.2% $19.79 14.25%
----------------- ---------- ------------------------ --------------------------
14 50.0% $21.00 13.75%
----------------- ---------- ------------------------ --------------------------
15 42.6% $21.39 12.00%
----------------- ---------- ------------------------ --------------------------
16 35.5% $21.68 10.25%
----------------- ---------- ------------------------ --------------------------
17 30.2% $22.14 8.90%
----------------- ---------- ------------------------ --------------------------
18 26.6% $22.79 7.95%
----------------- ---------- ------------------------ --------------------------
19 23.7% $23.50 7.15%
----------------- ---------- ------------------------ --------------------------
20 21.5% $24.30 6.55%
----------------- ---------- ------------------------ --------------------------
21 19.7% $25.15 6.05%
----------------- ---------- ------------------------ --------------------------
22 18.3% $26.03 5.65%
----------------- ---------- ------------------------ --------------------------
Premiums, Conversion Prices and Dividend Rates to be calculated pro-ratably
between Average Prices.
SCHEDULE 3.2
Purchaser Consents
If necessary, the consent of the Federal Trade Commission and/or the Department
of Justice under the HSR Act
2
SCHEDULE 4.2
Company Consents
Consent of X.X. Childs
If necessary, the consent of the Federal Trade Commission and/or Department of
Justice under the HSR Act
Consent of the Bank of America, N.A., and 50.1% of the participating lenders
under the Amended, Restated and Consolidated Revolving Credit and Term Loan
Agreement, dated as of January 18, 2000, among Xxxxxx Operating Corp., LLC, Bank
of America, N.A. and the participating lenders
3
EXHIBIT A
Amendment to Stockholders Agreement
4
EXHIBIT B
Certificate of Designation
5
EXHIBIT C
Right of First Offer Agreement
6
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
Amendment No. 1 to Stock Purchase Agreement (this "Amendment"), dated as of
February 8, 2001, by and between AT&T Wireless Services, Inc., a Delaware
corporation (the "Purchaser"), and Xxxxxx Communications Corporation, an
Oklahoma corporation (the "Company" or "Seller").
RECITALS
WHEREAS, the Company and Purchaser have entered into that certain Stock
Purchase Agreement dated as of November 6, 2000 (the "Purchase Agreement")
pursuant to which, among other things, the Purchaser agreed to purchase from the
Company 200,000 shares of the Company's Series A Convertible Preferred Stock,
par value $1.00 per share, upon the terms and subject to the conditions of the
Purchase Agreement; and
WHEREAS, the parties hereto desire to amend and supplement the Purchase
Agreement in the manner set forth in this Amendment; and
WHEREAS, capitalized terms used herein but not otherwise defined shall have
the meanings given such terms in the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the parties agree, and the Purchase Agreement is amended, as follows:
1. The following definitions are hereby added to Article 1 of the Purchase
Agreement in the appropriate alphabetical order:
"Exchange Agreement" means the Exchange Agreement, in the form
attached hereto as Exhibit D.
"Series AA Certificate of Designation" means the Certificate of
Designation of the powers, preferences and relations, optional and other
special rights of the Company's Series AA Preferred, in the form attached
hereto as Exhibit E.
"Series AA Preferred" means the Company's Series AA Preferred Stock,
$1.00 par value.
2. The definition of "New Preferred" in Article 1 of the Purchase Agreement
is hereby deleted.
3. The definition of "Transaction Documents" is hereby deleted in its
entirety and the following definition is inserted in lieu thereof:
"Transaction Documents" means the Amendment to Stockholders Agreement, the
Right of First Offer Agreement, the Certificate of Designation, the Series AA
Certificate of Designation and the Exchange Agreement."
4. The definition of "Transactions" is hereby deleted in its entirety and
the following definition is inserted in lieu thereof:
"Transactions" means the transactions contemplated by this Agreement
(including without limitation the execution and delivery of the Exchange
Agreement by the parties thereto and the consummations of the transactions
contemplated thereunder, if applicable)"
5. The following words are hereby added after the word "Date" on line one
of Section 4.5 of the Purchase Agreement:
"or as of the date of the consummation of the Exchange Agreement, as
applicable,"
6. The following parenthetical is hereby added after the word "hereunder"
on line one of Section 4.5 of the Purchase Agreement:
"(whether issued directly to the Purchaser on the Closing Date or
issued in exchange for Series AA Preferred pursuant to the Exchange
Agreement)"
7. New Sections 4.10, 4.11 and 4.12 are hereby added to the Purchase
Agreement to read as follows:
"Section 4.10. Valid Issuance of Series AA Preferred
To the extent applicable, as of the Closing Date the Series AA
Preferred Stock to be issued to Purchaser hereunder pursuant to
Section 5.5 will have been duly and validly authorized and when
issued, sold and delivered in accordance with the terms hereof will be
duly and validly issued and free and clear of any Liens or other third
party rights or interests whatsoever (including without limitation
preemptive rights) other than as provided for in the Stockholders
Agreement, as amended, and will not constitute "control shares" as
defined by Section 1145 of the Oklahoma General Corporation Act."
"Section 4.11. Series AA Certificate of Designation
To the extent applicable, as of the Closing Date the Series AA
Certificate of Designation will have been duly and validly authorized
by the Company and will have been filed with the Secretary of State of
Oklahoma and will be in full force and effect as of the Closing Date."
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"Section 4.12. Certificate of Designation
As of the Closing Date the Certificate of Designation will have
been duly and validly authorized by the Company and will have been
filed with the Secretary of State of Oklahoma and will be in full
force and effect as of the Closing Date."
8. Section 5.5 is hereby amended to read in its entirety as follows:
"Section 5.5. Oklahoma 5
The Purchaser's ownership of the FCC License for Oklahoma 5 RSA
("Oklahoma 5") would create an FCC Conflict if the Shares were issued
to Purchaser on the date hereof. Purchaser shall use all commercially
reasonable efforts to sell its interest in Oklahoma 5 prior to the
Closing Date or otherwise take action such that an FCC Conflict
relating to Oklahoma 5 will not arise as a result of the purchase of
the Shares on the Closing Date. In the event an FCC Conflict would be
created by the purchase of the Shares as of the Closing Date as a
result of Purchaser's ownership or interest in Oklahoma 5, then,
provided all conditions to Closing have or will be satisfied on the
Closing Date (other than obtaining any Consent pertaining to Oklahoma
5), in lieu of the Purchaser's purchase, and the Company's issuance,
of the Shares on the Closing Date, (i) the Purchaser shall purchase,
and the Company shall issue, on the Closing Date upon payment of $200
million to Seller, 200,000 shares of Series AA "Preferred and (ii)
each of the Purchaser and Seller shall enter into the Exchange
Agreement."
9. A new Subsection (h) is hereby added to Section 6.2 of the Purchase
Agreement as follows:
"(h) If applicable, the Purchaser shall have delivered to the
Company an executed counterpart signature page to the Exchange
Agreement."
10. A new Subsection (i) is hereby added to Section 6.3 of the Purchase
Agreement as follows:
"(i) If applicable, the Series AA Certificate of Designation,
completed to reflect the same dividend rate as the Shares pursuant to
Section 2.2, shall have been duly executed by the Company and filed
with the Secretary of State of the State of Oklahoma and shall be in
full force and effect under the laws of the State of Oklahoma as of
the Closing."
11. The parenthetical "(and, to the extent applicable, Section 4.10)" is
hereby added immediately after the section reference "4.5" on line three of
Section 6.3(h) of the Purchase Agreement.
12. A new Subsection (j) is hereby added to Section 6.3 of the Purchase
Agreement as follows:
"(j) If applicable, the Company shall have delivered to the
Purchaser an executed counterpart signature page to the Exchange
Agreement."
-3-
13. Pursuant to the terms Section 1 of this Amendment, New Exhibits "D" and
"E" are hereby added to the Purchase Agreement in the forms of Exhibits A and B
hereto, respectively, representing the forms of Exchange Agreement and Series AA
Certificate of Designation, respectively.
14. Except to the extent amended or supplemented by this Amendment, all
provisions of the Purchase Agreement are and shall remain in full force and
effect and are hereby confirmed in all respects, and the execution, delivery and
effectiveness of this Amendment shall not operate as a waiver or amendment of
any provision of the Purchase Agreement not specifically amended or supplemented
by this Amendment. Each reference to "this Agreement" and each other similar
reference contained in the Purchase Agreement shall from and after the effective
date hereof refer to the Purchase Agreement as amended and supplemented hereby.
[Remainder of page intentionally left blank.]
-4-
IN WITNESS WHEREOF, each of the parties has executed or caused this
Amendment to be executed by its duly authorized offices as of the date first
written above.
PURCHASER:
AT&T WIRELESS SERVICES, INC.
By: ______________________________________
Name:
Title:
COMPANY:
XXXXXX COMMUNICATIONS CORPORATION
By: ______________________________________
Name:
Title:
[SIGNATURE PAGE TO AMENDMENT NO 1 TO STOCK PURCHASE AGREEMENT]
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