Exhibit 10.2
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT ("Agreement"), dated as of February
8, 2001, between Xxxxxx Communications Corporation, an
Oklahoma corporation (the "Company"), and AT&T Wireless
Services, Inc., a Delaware corporation ("AWS"). Capitalized
terms used but not otherwise defined herein shall have the
meanings ascribed thereto under the Purchase Agreement
(defined below).
WHEREAS, each of the Company and AWS are parties the
Stock Purchase Agreement, dated as of November 6, 2000,
between such same parties (as such agreement was amended
pursuant to Amendment No. 1 to Stock Purchase Agreement of
even date herewith between the Company and AWS, the
"Purchase Agreement"), pursuant to which, among other
things, AWS agreed to purchase from the Company, and the
Company agreed to issue and sell to AWS, 200,000 shares of
the Company's Series AA Preferred;
WHEREAS, as a condition to the Closing of the
Transactions contemplated under the Purchase Agreement and
the obligations of the parties with respect thereto, AWS
required the Company to grant to AWS, and the Company
desired to provide AWS with, the exchange rights with
respect to the Series AA Preferred specified herein;
NOW, THEREFORE, for good and valid consideration, the
receipt of which is hereby acknowledged, each of the parties
hereto, intending legally to be bound, agrees as follows:
1. Mandatory Exchange Obligation. As soon as AWS may
lawfully own shares of the Company's Series A Convertible
Preferred Stock, par value $1.00 per share (the "Series A
Convertible Preferred"), without creating an FCC Conflict
with respect to Oklahoma 5 (such date being referred to as
the "Exchange Date"), each share of Series AA Preferred
owned by AWS shall be exchanged (the "Exchange") for a
single share of Series A Convertible Preferred. The Company
covenants and agrees to maintain in reserve at all times
during which the foregoing exchange obligation is in effect
a sufficient number of authorized but unissued shares of
Series A Convertible Preferred to fulfill its obligations
hereunder.
2. AWS to Resolve Potential Oklahoma 5 FCC Conflict.
From and after the Closing Date, AWS shall use commercially
reasonable efforts to sell, transfer or assign ownership of
its interest in the FCC License for Oklahoma 5 as promptly
as practicable or otherwise take action such that AWS'
ownership of 200,000 shares of Series A Convertible
Preferred as contemplated in the Purchase Agreement will not
create an FCC Conflict with respect to Oklahoma 5.
3. Notice; Exchange of Shares. Each party hereto
hereby agrees to provide the other party (the "Non-Asserting
Party") with written notice (the "Exchange Notice") promptly
after becoming aware that the Exchange Date has occurred
(such party who delivers an Exchange Notice may some times
hereinafter be referred to as the "Asserting Party"). Such
Exchange Notice shall include a certification by the
Asserting Party that the Exchange Date has occurred.
(a) In the event that the Company is the Asserting
Party, if the Non-Asserting Party does not deliver to the
Asserting Party written notice (the "Dispute Notice")
disputing the Asserting Party's claim that the Exchange Date
has occurred, together with an opinion of the Non-Asserting
Party's FCC counsel supporting the Non-Asserting Party's
claim, within five (5) business days after receipt of the
Exchange Notice (such period being referred to as the
"Dispute Period"), the exchange of Series AA Preferred for
shares of Series A Convertible Preferred as of the Exchange
Date shall have been effected and deemed to have occurred
automatically, without any further action required of the
parties hereto. Within three (3) business days following
the expiration of the Dispute Period, assuming a Dispute
Notice, together with the required opinion of FCC counsel,
is not delivered during the Dispute Period, the Company
shall (i) deliver to AWS a share certificate, in the form
attached hereto as Exhibit A, for the number of and
representing the shares of Series A Convertible Preferred
acquired by AWS in the exchange and (ii) update its books
and records (including without limitation its stock ledger)
to reflect the exchange.
(b) In the event that AWS is the Asserting Party, the
exchange of Series AA Preferred for shares of Series A
Convertible Preferred as of the Exchange Date shall have
been effected and deemed to have occurred automatically,
without any further action required of the parties hereto.
Within three (3) business days after receipt of the Exchange
Notice, the Company shall (i) deliver to AWS a share
certificate, in the form attached hereto as Exhibit A, for
the number of and representing the shares of Series A
Convertible Preferred acquired by AWS in the exchange and
(ii) update its books and records (including without
limitation its stock ledger) to reflect the exchange.
4. Unconditional Obligations of the Parties. Each of
the Company and AWS acknowledges and agrees that the
obligations of it under Sections 1 through 3 hereof
constitute irrevocable and unconditional obligations, and
shall not be subject to counterclaim, set-off, deduction or
defense, or to abatement, suspension, deferment, diminution
or reduction for any reason whatsoever. By way of
amplification , and not in limitation of the foregoing, the
Company further acknowledges and agrees to fulfill its
obligations in respect of the exchange described in Sections
1 and 3 above regardless of any claims it may have against
AWS or any other Person (whether or not related to the
Transactions) and regardless of the existence or non-
existence of any facts or circumstances (whether or not such
facts or circumstances existed as of the date hereof or were
then known by the Company).
5. Further Assurances. Upon the request of either
AWS or the Company, the other party hereto shall forthwith
execute and deliver, or cause to be executed and delivered,
such further instruments of exchange, assignment, transfer,
conveyance, endorsement, direction or authorization and
other documents as may reasonably be requested by such
Person in order to effectuate the purposes of this
Agreement.
6. Tax Treatment. Each of the Company and AWS agrees
that the Exchange provided for hereunder is, and to report
such Exchange as, a tax-free exchange under Section
368(a)(1)(E) of the Internal Revenue Code of 1986, as
amended (the "Code"), and each such party agrees to not take
any contrary position.
7. Miscellaneous.
(a) Amendment and Modification. This Agreement may be
amended, modified or supplemented only by written agreement
of each of the parties.
(b) 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 7(b).
(c) 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 (including overnight courier service) against
receipt, by facsimile transmission with confirmation of
receipt produced by the machine used to transmit the
facsimile, 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 AWS, 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 the Company, 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
With a copy to:
Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(d) 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 the Company
nor AWS may assign its rights and obligations hereunder
without the prior written consent of the other party;
provided, however, that AWS 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 7(d) shall be null
and void and without any force or effect.
(e) 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,
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.
(f) 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.
(g) Entire Agreement. This Agreement, including the
exhibit hereto, together with the other Transaction
Documents, embody the entire agreement and understanding of
the parties hereto in respect of the transactions
contemplated hereby. There are no restrictions, promises,
representations, warranties, covenants or undertakings,
other than those expressly set forth or referred to herein
and therein.
(h) 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.
(i) 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.
(j) 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.
(k) Beneficiaries of Agreement. The representations,
warranties, covenants and agreements expressed in this
Agreement are for the sole benefit of the other parties
hereto 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.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
XXXXXX COMMUNICATIONS
CORPORATION
By: XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
AT&T WIRELESS SERVICES, INC.
By: XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title:
EXHIBIT A
Form of Certificate of Series A Convertible Preferred
