EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
AMONG
ALAMOSA HOLDINGS, INC.,
FORTY ACQUISITION, INC.,
AND
SOUTHWEST PCS HOLDINGS, INC.
AND ITS STOCKHOLDERS
MARCH 9, 2001
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS................................................................2
1.1 Defined Terms..................................................2
1.2 References and Titles.........................................12
ARTICLE 2
THE MERGER................................................................13
2.1 The Merger....................................................13
2.2 Terms of the Merger...........................................13
2.3 Closing.......................................................14
2.4 Indebtedness and Cash on Hand.................................14
2.5 Exchange Procedure............................................15
2.6 Distributions with Respect to Unexchanged Shares..............15
2.7 Cancellation and Retirement of Company Common Stock...........16
2.8 No Fractional Shares..........................................16
2.9 No Liability..................................................16
2.10 Tax Withholding...............................................16
2.11 Board Representation..........................................17
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.............................17
3.1 Organization..................................................17
3.2 Certificate of Incorporation and Bylaws.......................18
3.3 Capitalization................................................18
3.4 Company Subsidiaries..........................................19
3.5 Authority and Enforceability..................................19
3.6 Compliance....................................................20
3.7 No Conflict...................................................20
3.8 Government Approvals..........................................21
3.9 Absence of Certain Changes or Events..........................21
3.10 Actions and Proceedings.......................................22
3.11 Absence of Undisclosed Liabilities............................22
3.12 Amount of Indebtedness........................................23
3.13 Taxes.........................................................23
3.14 Employee Benefit Plans; ERISA.................................24
3.15 Environmental Matters.........................................26
3.16 Affiliate Transactions........................................27
3.17 Brokers.......................................................27
3.18 Financial Information.........................................28
3.19 Intellectual Property.........................................28
3.20 Material Contracts............................................29
3.21 Assets........................................................32
3.22 Insurance.....................................................35
3.23 Employees.....................................................36
3.24 Customers and Suppliers.......................................37
3.25 Stockholder Vote..............................................37
3.26 Build-Out Plan................................................37
3.27 Termination of Agreements.....................................37
3.28 Reorganization Documents......................................38
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PARENT PARTIES......................39
4.1 Organization..................................................39
4.2 Charter Documents.............................................39
4.3 Capitalization................................................39
4.4 Authority and Enforceability..................................40
4.5 Compliance with Applicable Law................................40
4.6 No Conflict...................................................41
4.7 Government Approvals; Required Consents.......................41
4.8 SEC Documents and Other Reports...............................42
4.9 Absence of Certain Changes or Events..........................42
4.10 Employee Benefit Plans; ERISA.................................43
4.11 Lack of Ownership of Company Common Stock.....................43
4.12 Absence of Undisclosed Liabilities............................43
4.13 Actions and Proceedings.......................................43
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
AS TO ITSELF..............................................................44
5.1 Organization..................................................44
5.2 Authority and Enforceability..................................44
5.3 Stock Ownership...............................................45
5.4 Actions and Proceedings.......................................45
5.5 No Conflict...................................................45
5.6 Government Approvals; Required Consents.......................45
5.7 Investment Representations....................................46
5.8 Waiver of Rights..............................................47
5.9 No Claims.....................................................47
5.10 Reorganization Documents......................................47
5.11 Chickasaw Representations.....................................48
ARTICLE 6
CONDUCT OF BUSINESS PENDING THE CLOSING...................................48
6.1 Conduct of Business by the Company Pending the Closing........48
6.2 Conduct of Business by Parent Pending the Closing.............51
ARTICLE 7
ADDITIONAL AGREEMENTS.....................................................52
7.1 Access and Information; Confidentiality.......................52
7.2 Appointment of Stockholder Representative.....................52
7.3 Additional Reports and Information............................52
7.4 Legends.......................................................53
7.5 Other Agreements..............................................53
7.6 Other Actions.................................................53
7.7 Parent Announcements..........................................55
7.8 Directors' and Officers' Indemnification......................55
7.9 Parent Tax Filing.............................................56
7.10 Supplemental Disclosure.......................................56
7.11 Investigation and Agreement by the Parties;
No Other Representations or Warranties........................57
7.12 Resignations..................................................57
7.13 Continuation of Employee Benefits.............................58
7.14 Borrowed Money................................................59
7.15 Fees. 59
7.16 Vote by Stockholders..........................................59
7.17 Non-Foreign Status of Stockholders............................59
7.18 Assignment of Lease and Licenses..............................60
7.19 Transfer of Company Records...................................60
7.20 Additional Agreements.........................................60
7.21 Credit Agreement..............................................60
7.22 Chickasaw Obligations.........................................61
7.23 MassMutual Distribution.......................................62
7.24 Paribas Distribution..........................................62
7.25 Transfer of Property..........................................62
ARTICLE 8
CONDITIONS TO CONSUMMATION OF THE MERGER..................................62
8.1 Conditions to Each Party's Obligation to Effect the Merger....62
8.2 Conditions to Obligation of the Parent Parties
to Effect the Merger..........................................63
8.3 Conditions to Obligation of the Company to Effect
the Merger....................................................65
ARTICLE 9
TERMINATION...............................................................66
9.1 Termination...................................................66
9.2 Effect of Termination.........................................67
ARTICLE 10
INDEMNIFICATION...........................................................67
10.1 Survival......................................................67
10.2 Indemnification by Stockholders and Others....................67
10.3 Procedure for Indemnification -- Third-Party Claims...........69
10.4 Procedure for Indemnification - Other Claims..................70
10.5 Contribution..................................................70
10.6 Satisfaction of Liability.....................................71
10.7 Exclusivity...................................................71
ARTICLE 11
GENERAL PROVISIONS........................................................71
11.1 Amendment and Modification....................................71
11.2 Waiver........................................................71
11.3 Notices.......................................................71
11.4 Descriptive Headings; Interpretation..........................72
11.5 Entire Agreement..............................................73
11.6 Governing Law.................................................73
11.7 Counterparts..................................................73
11.8 Assignment; Third-Party Beneficiaries.........................73
11.9 No Recourse Against Others....................................73
11.10 Severability..................................................73
11.11 Attorneys' Fees...............................................74
11.12 Expenses......................................................74
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "AGREEMENT") is made and
entered into as of the 9th day of March, 2001, by and among Alamosa
Holdings, Inc., a Delaware corporation ("PARENT"), Forty Acquisition, Inc.,
a Delaware corporation and a direct wholly-owned subsidiary of Parent
("MERGER SUB"), Southwest PCS Holdings, Inc., a Delaware corporation (the
"COMPANY"), and all of the stockholders of the Company listed as such on
the signature pages hereto (the "STOCKHOLDERS").
RECITALS
A. The Stockholders own, in the aggregate, all of the issued and
outstanding shares of Class A Common Stock, par value $.001 per share, of
the Company, and all of the issued and outstanding shares of Class B Common
Stock, par value $.001 per share, of the Company (collectively, the
"COMPANY COMMON STOCK"). The Company and the Stockholders are sometimes
collectively referred to herein as the "COMPANY PARTIES." Parent and Merger
Sub are sometimes collectively referred to herein as the "PARENT PARTIES."
B. The Company was reorganized from an Oklahoma limited liability
company into a Delaware corporation (such transaction, and all related
transactions effected in connection therewith, the "REORGANIZATION")
pursuant to an Agreement and Plan of Merger dated as of February 23, 2001,
between the Company and SWPCS Holding, L.L.C., an Oklahoma limited
liability company and the predecessor-in-interest of the Company ("SWPCS").
For purposes of this Agreement, the term "Company" shall refer to Southwest
PCS Holdings, Inc. and SWPCS, its predecessor-in-interest.
C. The Board of Directors of the Company has deemed it advisable
and in the best interests of the Stockholders that Merger Sub merge with
and into the Company, with the Company surviving the merger and becoming a
direct wholly-owned subsidiary of Parent (the "MERGER"). In furtherance
thereof, the Board of Directors of each of Parent, Merger Sub and the
Company have approved and declared advisable this Agreement and the Merger
upon the terms and subject to the conditions set forth herein. In addition,
the Stockholders have unanimously approved this Agreement and the Merger in
accordance with Section 251(c) and Section 228 of the DGCL.
D. Concurrently with the execution and delivery of this Agreement,
Parent and the Stockholders are entering into a Registration Rights
Agreement in the form of EXHIBIT A hereto (the "REGISTRATION RIGHTS
AGREEMENT").
E. Subject to the terms of this Agreement, the parties hereto
intend that the Merger qualify as a reorganization under Section 368(a) of
the Code and that this Agreement shall be, and is hereby, adopted as a plan
of reorganization for purposes of Section 368 of the Code.
F. The Parent Parties and the Company Parties acknowledge that
they have received adequate consideration for entering into, and have
relied upon, the promises, covenants, representations and warranties
contained in this Agreement and that they will be benefited by the
transactions contemplated herein.
G. The Company Parties have delivered to Parent certain Disclosure
Schedules of even date herewith referred to herein. The Parent Parties have
delivered to the Company certain Disclosure Schedules of even date herewith
referred to herein. The Disclosure Schedules and the Exhibits (herein so
called) referred to herein are a part of this Agreement.
NOW, THEREFORE, for and in consideration of the Recitals and the
mutual covenants and agreements set forth in this Agreement, the parties
hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, each of the
following terms has the meaning given in this Section 1.1 or in the Section
referred to below:
"ACCOUNTS" has the meaning specified in Section 3.21(a)(v).
"ACCOUNTS RECEIVABLE" has the meaning specified in Section
3.21(a)(iv).
"ADJUSTED PARENT STOCK AMOUNT" means a number of shares of Parent
Stock equal to 11,100,000 minus the Parent Stock Reduction Amount.
"AFFECTED EMPLOYEES" has the meaning specified in Section 7.13(a).
"AFFILIATE" means, with respect to any Person, each other Person
that directly or indirectly (through one or more intermediaries or
otherwise) controls, is controlled by, or is under common control with such
Person. The term "CONTROL" (including the terms "CONTROLLED BY" and "UNDER
COMMON CONTROL WITH") means the possession, directly or indirectly, of the
actual power to direct or cause the direction of the management policies of
a Person, whether through the ownership of stock, by contract or otherwise.
"AGGREGATE MERGER CONSIDERATION" means an amount equal to (a) the
product of (i) 11,100,000 multiplied by (ii) the Parent Stock Price, plus
(b) $5,000,000, and minus (c) the Excess Debt Amount.
"AGREEMENT" means this Agreement and Plan of Merger, as amended,
supplemented and/or modified from time to time.
"ANTITRUST LAWS" has the meaning specified in Section 7.6(d).
"ARTICLE 3 PARENT INDEMNIFIED DAMAGES" means (a) any and all
Damages that any of the Indemnified Parties incurs or suffers arising from
or in connection with any inaccuracy in any of the representations or
warranties made by the Company in Sections 3.1, 3.2, 3.3, 3.4, 3.5, clause
(b) of 3.7, 3.25, 3.27, and 3.28 hereof, determined in each case as of the
Effective Time as though made at and as of the Effective Time (except to
the extent such representations and warranties speak as of an earlier
date); and (b) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including reasonable legal
fees and expenses, incident to any of the foregoing. For purposes of this
definition, in determining whether there exists any inaccuracy in any of
the representations or warranties made by the Company in Sections 3.1, 3.2,
3.3, 3.4, 3.5, clause (b) of 3.7, 3.25, 3.27, and 3.28 of this Agreement,
no effect shall be given to any qualifiers contained in any such
representations or warranties with respect to the "knowledge,"
"materiality," "in all material respects" or "Material Adverse Effect."
"ARTICLE 3 PARENT TAX INDEMNIFIED DAMAGES" means (a) any and all
Damages that any of the Indemnified Parties incurs or suffers arising from
or in connection with any inaccuracy in any of the representations or
warranties made by the Company in Section 3.13 hereof, determined as of the
Effective Time as though made at and as of the Effective Time (except to
the extent such representations and warranties speak as of an earlier
date), and (b) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including reasonable legal
fees and expenses, incident to any of the foregoing. For purposes of this
definition, in determining whether there exists any inaccuracy in any of
the representations or warranties made by the Company in Section 3.13 of
this Agreement, no effect shall be given to any qualifiers contained in any
such representations or warranties with respect to the "knowledge,"
"materiality," "in all material respects" or "Material Adverse Effect."
"ARTICLE 5 PARENT INDEMNIFIED DAMAGES" means, as applied to a
particular Stockholder, (a) any and all Damages that any of the Indemnified
Parties incurs or suffers arising from or in connection with any inaccuracy
in any of the representations or warranties made by such Stockholder in
Article 5 hereof, in each case as of the Effective Time as though made at
and as of the Effective Time (except to the extent such representations and
warranties speak as of an earlier date); and (b) any and all actions,
suits, proceedings, claims, demands, assessments, judgments, costs, and
expenses, including reasonable legal fees and expenses, incident to any of
the foregoing.
"ASSOCIATES" has the meaning set forth in Rule 12b-2 promulgated
under the Exchange Act.
"BENEFIT PLANS" has the meaning specified in Section 3.14(a).
"CASH CONSIDERATION AMOUNT" means an amount in cash equal to the
quotient of (a) $5,000,000 minus the Excess Debt Amount, divided by (b) the
Outstanding Company Shares; provided, that the Cash Consideration Amount
shall in no event be less than zero.
"CASH ON HAND" means the cash and cash equivalents of the Company
and its Subsidiaries as determined (a) as of the date specified in Section
2.4(b) and (b) in accordance with GAAP.
"CERTIFICATE" has the meaning specified in Section 2.5(a).
"CERTIFICATE OF MERGER" means the certificate of merger, prepared
and executed in accordance with the applicable provisions of the DGCL,
filed with the Secretary of State of the State of Delaware to effect the
Merger.
"CHARTER DOCUMENTS" has the meaning specified in Section 3.2.
"CHICKASAW" means Chickasaw Holding Company, an Oklahoma corporation.
"CHICKASAW PARENT INDEMNIFIED DAMAGES" means (a) any and all
Damages that any of the Indemnified Parties incurs or suffers arising from
or in connection with any breach of any agreement or covenant of Chickasaw
or SPCS LLC contained in Sections 7.19, 7.22 and 7.25 herein and (b) any
and all actions, suits, proceedings, claims, demands, assessments,
judgments, costs, and expenses, including reasonable legal fees and
expenses, incident to the foregoing.
"CLOSING" means the closing of the Merger and the consummation of
the other transactions contemplated by this Agreement.
"CLOSING DATE" means the date on which the Closing occurs.
"CLOSING DEBT AMOUNT" means an amount equal to (a) the outstanding
Indebtedness of the Company, minus (b) Cash on Hand, and plus (c) the
Excess Fee Amount. For purposes of this definition, the term Indebtedness
shall not include any prepayment fees, penalties or other similar amounts
or legal fees owed under the terms of the relevant credit facility.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" has the meaning set forth in the introductory paragraph
of this Agreement.
"COMPANY AFFILIATE" has the meaning specified in Section 11.9.
"COMPANY COMMON STOCK" has the meaning specified in the Recitals
to this Agreement.
"COMPANY DISCLOSURE SCHEDULE" means the Company Disclosure
Schedule attached hereto and any document listed on such Company Disclosure
Schedule provided that such document is expressly described therein and has
previously been made available to Parent.
"COMPANY FINANCIAL STATEMENTS" has the meaning set forth in
Section 3.18.
"COMPANY OWNERSHIP PERCENTAGE" means, with respect to a particular
Stockholder, an amount expressed as a percentage equal to the quotient of
(a) the number of shares of Company Common Stock owned by the Stockholder
immediately prior to the Effective Time, divided by (b) the Outstanding
Company Shares.
"COMPANY PARTIES" has the meaning specified in the Recitals to
this Agreement.
"COMPANY PERMITS" has the meaning specified in Section 3.6.
"COMPANY PLAN" has the meaning specified in Section 3.14(b).
"COMPANY WELFARE PLAN" has the meaning specified in Section
7.13(b).
"CONFIDENTIALITY AGREEMENTS" has the meaning set forth in Section
7.1(b).
"CONSENT" has the meaning specified in Section 7.6(b).
"COVENANT PARENT INDEMNIFIED DAMAGES" means (a) any and all
Damages that any of the Indemnified Parties incurs or suffers arising from
or in connection with any breach of any agreement or covenant of the
Company contained in this Agreement other than covenants or agreements
contemplated by Sections 7.19, 7.20, 7.22, 7.23, 7.24 and 7.25; and (b) any
and all actions, suits, proceedings, claims, demands, assessments,
judgments, costs, and expenses, including reasonable legal fees and
expenses, incident to the foregoing.
"CREDIT AGREEMENT" has the meaning specified in Section 8.2.
"DAMAGES" means any and all damages, losses, claims, liabilities,
Taxes, demands, charges, suits, penalties, costs, expenses (including court
costs and reasonable attorneys' fees and expenses incurred in investigating
and preparing for any action or proceeding, but excluding punitive,
consequential and incidental damages except to the extent that such are
sought by a third party pursuant to a Third-Party Claim) or diminutions of
value, whether or not involving a Third-Party Claim.
"DGCL" means the General Corporation Law of the State of Delaware.
"DISCLOSURE SCHEDULE" means, as applicable, the Company Disclosure
Schedule, the Parent Disclosure Schedule or any Stockholder Disclosure
Schedule.
"DISPOSE" (and with correlative meaning, "Disposition") shall mean
pay, discharge, settle or otherwise dispose.
"DOJ" has the meaning specified in Section 7.6(c).
"EFFECTIVE TIME" has the meaning specified in Section 2.1(b).
"ENVIRONMENTAL CLAIMS" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, investigations, proceedings or notices of noncompliance or
violation (in each case in writing) by any Person (including any
Governmental Entity), alleging noncompliance, violation or potential
liability (including potential responsibility or liability for costs of
enforcement, investigation, cleanup, governmental response, removal or
remediation, for natural resources damages, property damage, personal
injuries or penalties or for contribution, indemnification, cost recovery,
compensation or injunctive relief) arising out of, or related to (a) the
presence, Release or threatened Release of any Hazardous Materials at any
location, whether or not owned or operated by the Company or any of its
Subsidiaries, or (b) circumstances forming the basis of any violation or
alleged violation of, or liability under, any Environmental Law or
Environmental Permit.
"ENVIRONMENTAL LAWS" has the meaning specified in Section 3.15.
"ENVIRONMENTAL PERMITS" has the meaning specified in Section
3.15(a).
"ERISA" has the meaning specified in Section 3.14(b).
"ERISA AFFILIATE" has the meaning specified in Section 3.14(b).
"EXCESS DEBT AMOUNT" means the amount, if any, by which the
Company's Closing Debt Amount exceeds $80,000,000.
"EXCESS FEE AMOUNT" means the amount, if any, by which the
aggregate fees and expenses referenced in Section 7.15 and that are
incurred by the Company exceed the amount set forth in Schedules 7.15(a)
and 7.15(b).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FCC" has the meaning specified in Section 3.8.
"FTC" has the meaning specified in Section 7.6(c).
"FINAL DETERMINATION" shall mean (a) the entry of a decision of a
court of competent jurisdiction at such time as an appeal may no longer be
taken from such decision, (b) the execution of a closing agreement or its
equivalent between the particular Stockholder and the relevant Governmental
Entity, or (c) any other final Disposition of a claim made by a
Governmental Entity with respect to Taxes of any Stockholder.
"GAAP" means generally accepted accounting principles, as
recognized by the U.S. Financial Accounting Standards Board (or any
generally recognized successor).
"GOVERNMENTAL ENTITY" means any national, state, county or
municipal government, domestic or foreign, any agency, board, bureau,
commission, court, department or other instrumentality of any such
government, or any arbitrator in any case that has jurisdiction over the
Company, Parent or any of their respective Subsidiaries, properties or
assets.
"HAZARDOUS MATERIALS" means (a) any petroleum or petroleum
products, fractions or wastes, radioactive materials or wastes, friable
asbestos and polychlorinated biphenyls and (b) any other chemical,
material, substance or waste, the generation, manufacture, processing,
distribution, possession, use, treatment, storage or Release of which is
prohibited, limited or regulated under any applicable Environmental Law.
"HSR ACT" has the meaning specified in Section 3.8.
"INDEBTEDNESS" means the aggregate outstanding indebtedness of the
Company for borrowed money (including any prepayment fees, penalties or
similar amounts) determined as of immediately prior to the Effective Time
and as reflected in the payoff letters to be obtained in accordance with
Section 2.4
"INDEMNIFIED PARTY" has the meaning specified in Section 10.2(a).
"INDEMNIFYING PARTY" has the meaning specified in Section 10.3.
"INDEMNITEE" has the meaning specified in Section 7.8(a).
"INDEMNITY AGREEMENT" has the meaning specified in Section 7.8(a).
"INTELLECTUAL PROPERTY" has the meaning specified in Section
3.19(a).
"LP" has the meaning specified in Section 7.22(b).
"LEASE AGREEMENT" has the meaning specified in Section 7.22(b).
"LEASED PREMISES" has the meaning specified in Section
3.21(b)(ii).
"LIEN" means any lien, mortgage, security interest, pledge,
deposit, production payment, restriction, burden, encumbrance, right of
purchase, rights of a vendor under any title retention or conditional sale
agreement, or lease or other arrangement substantially equivalent thereto.
"LISTED AGREEMENT" has the meaning specified in Section 3.27.
"MASSMUTUAL" means MassMutual High Yield Partners II LLC and
Massachusetts Mutual Life Insurance Company.
"MASSMUTUAL INDEMNIFIED DAMAGES" means (a) any and all Damages
that any of the Indemnified Parties incurs or suffers arising from or in
connection with any breach of any agreement or covenant of MassMutual
contained in Section 7.23 herein and (b) any and all actions, suits,
proceedings, claims, demands, assessments, judgments, costs, and expenses,
including reasonable legal fees and expenses, incident to the foregoing.
"MASTER LEASE AGREEMENT" has the meaning specified in Section
7.22(d).
"MATERIAL ADVERSE EFFECT" means: (a) when used with respect to the
Company, a result or consequence that (i) would reasonably be expected to
materially adversely affect the business, condition (financial or
otherwise), assets, liabilities, properties, cash flows or results of
operations of the Company and its Subsidiaries taken as a whole or (ii)
would reasonably be expected to impair the Company's ability to perform its
obligations hereunder or consummate the transactions contemplated hereby;
and (b) when used with respect to Parent, a result or consequence that (i)
would reasonably be expected to materially adversely affect the business,
condition (financial or otherwise) or results of operations of Parent and
its Subsidiaries taken as a whole or (ii) would reasonably be expected to
impair Parent's ability to perform its obligations hereunder or consummate
the transactions contemplated hereby; provided, however, that the effects
of changes that are substantially attributable to (x) the industries and
markets in which a party operates or (y) general economic, political or
financial market conditions, including (1) changes after the date hereof in
any applicable law or in the interpretation of any applicable law or (2)
changes after the date hereof in GAAP, shall be excluded from the
determination of a Material Adverse Effect, except, in the case of each of
clauses (x) and (y), to the extent that any such change or condition
adversely affects the referenced Person to a materially greater degree than
other companies engaged in the same business or industry are affected
generally; provided further, that any adverse effect on a party that is
substantially attributable to (x) the execution of this Agreement, (y) the
announcement of this Agreement or (z) such party's compliance with the
terms and conditions of this Agreement, shall also be excluded from the
determination of a Material Adverse Effect.
"MATERIAL CONTRACTS" has the meaning specified in Section 3.20(a).
"MATERIAL INTELLECTUAL PROPERTY" has the meaning specified in
Section 3.19(b).
"MERGER" has the meaning specified in the Recitals to this
Agreement.
"MERGER SUB" has the meaning specified in the introductory
paragraph of this Agreement.
"MERGER SUB STOCK" means the common stock, par value $.01 per
share, of Merger Sub.
"NEW LEASE" has the meaning specified in Section 7.22(b).
"OUTSIDE CONFIDENTIALITY AGREEMENT" has the meaning specified in
Section 3.23(a).
"OUTSTANDING COMPANY SHARES" means the total number of shares of
Company Common Stock issued and outstanding immediately prior to the
Effective Time (which shall not include any shares held in the Company's
treasury).
"PARENT" has the meaning specified in the introductory paragraph
of this Agreement.
"PARENT DISCLOSURE SCHEDULE" means the Parent Disclosure Schedule
attached hereto and any document listed on such Parent Disclosure Schedule
provided that such document is expressly described therein and has
previously been made available to Company.
"PARENT PARTIES" has the meaning specified in the Recitals to this
Agreement.
"PARENT PERMITS" has the meaning specified in Section 4.5.
"PARENT SEC DOCUMENTS" has the meaning specified in Section 4.8.
"PARENT STOCK" means the common stock, par value $0.01 per share,
of Parent.
"PARENT STOCK PRICE" means a price per share of Parent Stock equal
to $12.00, representing the last reported sale price as reported by the
Nasdaq Stock Market for the trading day immediately preceding the date of
this Agreement.
"PARENT STOCK REDUCTION AMOUNT" means a number of shares of Parent
Stock (rounded to the nearest whole share) equal to the quotient of (a) the
Closing Debt Amount minus $85,000,000, divided by (b) the Parent Stock
Price; provided that the Parent Stock Reduction Amount shall in no event be
less than zero.
"PARIBAS" means Paribas Capital Funding LLC.
"PARIBAS PARENT INDEMNIFIED DAMAGES" means (a) any and all Damages
that any of the Indemnified Parties incurs or suffers arising from or in
connection with any breach of any agreement or covenant of Paribas
contained in Section 7.24 herein and (b) any and all actions, suits,
proceedings, claims, demands, assessments, judgments, costs, and expenses,
including reasonable legal fees and expenses, incident to the foregoing.
"PER SHARE MERGER CONSIDERATION" means the Cash Consideration
Amount plus the Stock Consideration Amount.
"PERMITTED LIENS" means: (a) Liens for Taxes, assessments or other
governmental charges or levies if the same shall not at the particular time
in question be due and delinquent or (if foreclosure, distraint, sale or
other similar proceedings shall not have been commenced or, if commenced,
shall have been stayed) are being contested in good faith by appropriate
proceedings and if the Company shall have set aside on its books such
reserves (segregated to the extent required by sound accounting practices)
as may be required by or consistent with GAAP and, whether reserves are set
aside or not, which in any case are listed on the applicable Disclosure
Schedule; (b) Liens of carriers, warehousemen, mechanics, laborers,
materialmen, landlords, vendors, workmen and operators arising by operation
of law in the ordinary course of business or by a written agreement
existing as of the date hereof for sums not yet due or being contested in
good faith by appropriate proceedings, if the Company shall have set aside
on its books such reserves (segregated to the extent required by sound
accounting practices) as may be required by or consistent with GAAP and,
whether reserves are set aside or not, as are listed on the applicable
Disclosure Schedule, to the extent that such are in existence as of the
date hereof; (c) inchoate Liens incurred in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
social security legislation (other than ERISA) which would not and will
not, individually or in the aggregate, materially impair the value of the
assets of the Company or interfere with the ordinary conduct of the
business of the Company; (d) Liens incurred in the ordinary course of
business to secure the performance of bids, tenders, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance and
repayment bonds and other obligations of a like nature which would not and
will not, individually or in the aggregate, materially impair the value of
the assets of the Company or interfere with the ordinary conduct of the
business of the Company or rights to any of its assets; (e) Liens,
easements, rights-of-way, restrictions, servitudes, permits, conditions,
covenants, exceptions, reservations and other similar encumbrances existing
on property which would not and will not materially impair the value of the
assets of the Company or interfere with the ordinary conduct of the
business of the Company or rights to any of its assets; (f) any defects,
irregularities or deficiencies in title to easements, rights-of-way or
other surface use agreements that do not materially adversely affect the
value of any asset of the Company; (g) Liens arising under or created
pursuant to the credit agreements of the Company set forth in item 5(a) of
Section 3.20(a) of the COMPANY DISCLOSURE SCHEDULE; and (h) the matter
described in item 5(b) of Section 3.20(a) of the COMPANY DISCLOSURE
SCHEDULE.
"PERSON" means any natural person, corporation, company, limited
or general partnership, joint stock company, joint venture, association,
limited liability company, trust, bank, trust company, land trust, business
trust or other entity or organization, whether or not a Governmental
Entity.
"PERSONAL PROPERTY" has the meaning specified in Section
3.21(a)(i).
"POLICIES" has the meaning specified in Section 3.22(a).
"PRIOR POLICIES" has the meaning specified in Section 3.22(a).
"REAL ESTATE CONTRACTS" has the meaning specified in Section
3.21(b)(ii).
"REAL PROPERTY" has the meaning specified in Section 3.21(b)(i).
"REGISTRATION RIGHTS AGREEMENT" has the meaning specified in the
Recitals to this Agreement.
"RELEASE" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"REORGANIZATION" has the meaning specified in the Recitals to this
Agreement.
"REORGANIZATION AND CONSENT AGREEMENT" has the meaning specified
in Section 3.3(a).
"REORGANIZATION DOCUMENTS" has the meaning specified in Section
3.28(a).
"RESPONSIBLE OFFICER" means (1) with respect to the Company, Xxx
Xxxxx, President and Chief Executive Officer; Xxx Xxxxxxxxx, Chief
Financial Officer; X.X. Xxxxxx, member of the Company's Board of Directors;
Xxxxx X. Xxxxx, member of the Company's Board of Directors; Xxxxx Xxxxxxxx,
Director of Regulatory Issues; Xxxx Xxxxxxxxx, Vice-President and Director
of Network Operations; Virginia "Xxxxxxx" Xxxxxx, Vice-President and
Director of Sales; Xxxxxxx Xxxxx, Director of Sales; Xxxx Xxxxxx,
Controller; Xxxxx Xxxxxxxxx, Treasurer; Xxxxx Xxxxx, Vice-President and
General Manager; Xxx Xxxxxxx, Manager of Human Resources; and Xxxxxxx Xxxx;
and (2) with respect to Parent, Xxxxx Xxxxxxxx, President and Chief
Executive Officer; Xxxxxxx Xxxxx, Chief Financial Officer; Xxxx Xxxxxxxx,
Senior Vice-President--Corporate Finance; Xxxxxxx Xxxxxxxx, Chief
Technology Officer; and Xxxxx Xxxxxx, Vice-President of Operations.
"SEC" means the Securities and Exchange Commission.
"SPCS LLC" has the meaning specified in Section 5.11(b).
"SECTION 7.20 PARENT INDEMNIFIED DAMAGES" means, as applied to a
particular Stockholder, (a) any and all Damages that any of the Indemnified
Parties incurs or suffers arising from or in connection with any breach of
any agreement or covenant of such Stockholder contained in Section 7.20
herein and (b) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including reasonable legal
fees and expenses, incident to the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SPRINT AGREEMENTS" has the meaning specified in Section 3.20(c).
"SPRINT MANAGEMENT AGREEMENT" has the meaning specified in Section
3.20(c).
"SPRINT PCS" means Sprint Spectrum, L.P. and its Affiliates,
excluding the Company.
"STOCK CONSIDERATION AMOUNT" means a number of shares of Parent
Stock equal to the quotient of the Adjusted Parent Stock Amount divided by
the Outstanding Company Shares.
"STOCKHOLDER DISCLOSURE SCHEDULE" means each Stockholder
Disclosure Schedule attached hereto and any document listed on such
Stockholder Disclosure Schedule provided that such document is expressly
described therein and has previously been made available to Parent.
"STOCKHOLDER REPRESENTATIVE" has the meaning specified in Section
7.2.
"STOCKHOLDERS" has the meaning specified in the introductory
paragraph of this Agreement.
"STOCKHOLDERS' DESIGNEE" has the meaning specified in Section
2.11.
"SUB LEASE AGREEMENT" has the meaning specified in Section
7.22(d).
"SUBSEQUENT PARENT SEC DOCUMENTS" has the meaning specified in
Section 4.8.
"SUBSIDIARY" means, with respect to any Person, any corporation or
other organization, whether incorporated or unincorporated, of which (a)
such Person or any other Subsidiary of such Person is a general partner or
(b) at least a majority of the securities or other interests having by
their terms ordinary voting power to elect a majority of the board of
directors or others performing similar functions with respect to such
corporation or other organization is, directly or indirectly, owned or
controlled by such Person or by any one or more of its Subsidiaries, or by
such Person and any one or more of its Subsidiaries.
"SURVIVING CORPORATION" has the meaning specified in Section
2.1(a).
"SWPCS" has the meaning specified in the Recitals to this
Agreement.
"TAX RETURNS" means any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
"TAXES" means taxes of any kind, levies or other like assessments,
customs, duties, imposts, charges or fees, including income, gross
receipts, ad valorem, value added, excise, real or personal property,
asset, sales, use, federal royalty, license, payroll, transaction, capital,
net worth and franchise taxes, estimated taxes, withholding, employment,
social security, workers' compensation, utility, severance, production,
unemployment compensation, occupation, premium, windfall profits, transfer
and gains taxes and other governmental taxes imposed or payable to the
United States or any state, local or foreign governmental entity, including
any subdivision or agency thereof, and in each instance such term shall
include any interest, penalties or additions to tax attributable to any
such tax, including penalties for the failure to file any Tax Return or
report.
"TERMINATION DATE" has the meaning specified in Section 9.1(b).
"THIRD-PARTY CLAIM" has the meaning specified in Section 10.3.
"TOWER INDEMNIFIED DAMAGES" means any and all fines or penalties
imposed by the FCC, the FAA or any state or federal environmental
protection agency or authority and relocation costs incurred to relocate
any of the towers described on EXHIBIT B to this Agreement (the "SCHEDULED
TOWERS") that any of the Indemnified Parties incurs or suffers arising from
or in connection with any noncompliance of any of the Scheduled Towers with
the FCC's environmental regulations found at 47 CFR 1.1305 through 1.1319,
and any and all Damages that any of the Indemnified Parties incurs or
suffers arising from or in connection with any and all actions, suits,
proceedings, claims and demands by third parties arising from or in
connection with any noncompliance of any of the Scheduled Towers with the
FCC's environmental regulations found at 47 CFR 1.1305 through 1.1319.
"TOWER INDEMNIFIED DAMAGES CAP" has the meaning specified in
Section 10.2(e).
"TOWER LEASES" has the meaning specified in Section 3.21(b)(iii).
1.2 REFERENCES AND TITLES. All references in this Agreement to Exhibits,
Schedules, Articles, Sections, subsections and other subdivisions refer to
the corresponding Exhibits, Schedules, Articles, Sections, subsections and
other subdivisions of or to this Agreement unless expressly provided
otherwise. Titles appearing at the beginning of any Articles, Sections,
subsections or other subdivisions of this Agreement are for convenience
only, do not constitute any part of this Agreement, and shall be
disregarded in construing the language hereof. The words "THIS AGREEMENT,"
"HEREIN," "HEREBY," "HEREUNDER" and "HEREOF," and words of similar import,
refer to this Agreement as a whole and not to any particular subdivision
unless expressly so limited. The words "THIS ARTICLE," "THIS SECTION" and
"THIS SUBSECTION," and words of similar import, refer only to the Article,
Section or subsection hereof in which such words occur. The word "OR" is
not exclusive, and the word "INCLUDING" (in its various forms) means
including without limitation. Pronouns in masculine, feminine or neuter
genders shall be construed to state and include any other gender, and
words, terms and titles (including terms defined herein) in the singular
form shall be construed to include the plural and vice versa, unless the
context otherwise requires.
As used in the representations and warranties contained in this
Agreement, the phrase "TO THE KNOWLEDGE" of the representing party shall
mean that the Responsible Officers of such party, individually and
collectively, either (a) know that the matter being represented and
warranted is true and accurate or (b) have no reason to believe that the
matter being represented and warranted is not true and accurate.
ARTICLE 2
THE MERGER
2.1 THE MERGER.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, at the Effective Time, Merger Sub will merge with and into the
Company in accordance with the terms set forth herein. From and after the
Effective Time, the separate existence of Merger Sub shall cease to exist.
The Company shall continue as the surviving corporation in the Merger (the
"SURVIVING CORPORATION") and shall continue to be governed by the laws of
the State of Delaware.
(b) The Merger shall become effective at the time of the filing
of, or at such later time specified in, a properly executed Certificate of
Merger filed with the Secretary of State of the State of Delaware, together
with all other documents, notices and filings required by the DGCL (such
date and time at which the Merger shall become effective being referred to
herein as the "EFFECTIVE TIME").
(c) At the Effective Time, the effect of the Merger shall be as
provided in the DGCL.
(d) The certificate of incorporation and bylaws of Merger Sub as
in effect at the Effective Time shall be the certificate of incorporation
and bylaws of the Surviving Corporation. At the Effective Time, the Board
of Directors and officers of the Surviving Corporation shall be composed of
the directors and officers of Merger Sub serving immediately before the
Effective Time to hold office until their respective successors are duly
elected or appointed and qualified. At the Effective Time, all rights and
obligations of the Stockholders (i) under the Company's certificate of
incorporation and bylaws or similar agreements and (ii) with respect to the
Company Common Stock shall terminate.
2.2 TERMS OF THE MERGER.
(a) Subject to Sections 2.8 and 2.10, each share of Company Common
Stock issued and outstanding immediately prior to the Effective Time (other
than shares of such stock held in the Company's treasury) shall, at the
Effective Time, by virtue of the Merger and without any action on the part
of the holder thereof, be converted into the right to receive the Per Share
Merger Consideration.
(b) In the event of any stock dividend, stock split,
reclassification, recapitalization, combination or exchange of shares with
respect to, or rights issued in respect of, Parent Stock on or after the
date hereof and prior to the Effective Time, the Adjusted Parent Stock
Amount, the Stock Consideration Amount, the Parent Stock Reduction Amount
and the Parent Stock Price shall be adjusted accordingly.
(c) Each share of Company Common Stock that is owned by the
Company as treasury stock shall, at the Effective Time, be canceled and
retired and shall cease to exist and no shares of Parent Stock or other
consideration shall be delivered or owing in exchange therefor.
(d) Each share of Merger Sub Stock issued and outstanding
immediately prior to the Effective Time (other than shares of such stock
held in Merger Sub's treasury) shall, at the Effective Time, by virtue of
the Merger and without any action on the part of the holder thereof, be
converted into one duly authorized, validly issued, fully paid and
nonassessable share of stock of the Surviving Corporation.
(e) At and after the Effective Time, holders of Company Common
Stock immediately prior to the Effective Time shall cease to have any
rights as Stockholders of the Company, except the right to receive the Per
Share Merger Consideration in accordance with Section 2.2(a) with respect
to each share of Company Common Stock held by them, and such shares of
Company Common Stock shall be extinguished. The Per Share Merger
Consideration paid or issued upon the surrender for exchange of each share
of Company Common Stock in accordance with the terms of this Agreement
shall be deemed, when paid or issued hereunder, to have been paid or
issued, as the case may be, in full satisfaction of all rights and
obligations pertaining to such share of Company Common Stock.
2.3 CLOSING. Subject to the terms and conditions of this Agreement,
the Closing of the transactions contemplated by this Agreement shall take
place at the offices of Xxxxxx & Xxxxxx L.L.P., 0000 Xxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, at 9:00 a.m. local time (a) on March 30, 2001,
subject to the satisfaction or waiver (subject to applicable law) of the
conditions precedent specified in Article 8, (b) if on such date the
conditions precedent specified in Article 8 are not satisfied or waived
(subject to applicable law), then on a day not later than three business
days following the date that all conditions precedent specified in Article
8 have been satisfied or waived (subject to applicable law) or (c) on such
other date and at such other time and place as the parties hereto may
agree.
2.4 INDEBTEDNESS AND CASH ON HAND.
(a) No later than two business days prior to the Closing Date, the
Company shall cause each of the lenders of the Company's Indebtedness to
prepare and deliver to Parent a "payoff letter" specifying the amount of
Indebtedness, fees, expenses, prepayment penalties and other amounts that
will be outstanding as of the Closing Date in connection with the Company's
Indebtedness. Such payoff letters shall be reconfirmed by the lenders on
the Closing Date.
(b) No later than one day prior to Closing, the Company shall
deliver to Parent a certificate certifying the amount of Cash on Hand as of
the close of business on the immediately preceding business day and the
amount of fees to be paid pursuant to Section 7.15. On the Closing Date,
the Company shall deliver to Parent a certificate certifying the amount of
Cash on Hand as of the close of business on the immediately preceding
business day and confirming the amount of fees to be paid pursuant to
Section 7.15.
2.5 EXCHANGE PROCEDURE.
(a) At the Closing, each holder of Company Common Stock shall
surrender to Parent the certificates (each, a "CERTIFICATE") representing
same by means of transfer documents, in such form, as Parent may reasonably
require. Subject to Section 2.10, at the time of such surrender or
delivery, the Per Share Merger Consideration applicable to each such share
of Company Common Stock shall be delivered to each such holder.
(b) The Per Share Merger Consideration shall be deemed, when paid
or issued hereunder, to have been paid or issued, as the case may be, in
full satisfaction of all rights and obligations pertaining to the share of
Company Common Stock surrendered in exchange therefor. No interest shall be
paid or accrued on any cash payable upon the surrender of any share of
Company Common Stock. If cash payment is to be made, or shares of Parent
Stock issued, to a Person other than the Person who surrendered the shares
of Company Common Stock, it shall be a condition of payment that the shares
of Company Common Stock so surrendered shall be properly endorsed or
otherwise in proper form for transfer and that the Person requesting such
payment shall pay any transfer or other taxes required by reason of the
payment to a Person other than the registered holder of the surrendered
shares of Company Common Stock, or establish to the satisfaction of Parent
that such taxes have been paid or are not applicable.
2.6 DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. Following the
Effective Time, no dividends or other distributions with respect to Parent
Stock shall be paid to the holder of any unsurrendered Certificate with
respect to the shares of Parent Stock issuable upon the surrender of such
Certificate pursuant to Section 2.5 and, with respect thereto, no cash
payment in lieu of fractional shares shall be paid to any such holder
pursuant to Section 2.8. Subject to the effect of applicable escheat or
similar laws and subject to Section 2.10, following the surrender of any
such Certificate pursuant to Section 2.5 there shall be paid to the holder
of the Certificate, (a) any such dividends or other distributions, without
any interest thereon, which theretofore had become payable (with a record
date and payment date after the Effective Time but prior to the surrender
of shares of Company Common Stock) with respect to shares of Parent Stock
represented by such Certificate and (b) the amount of any cash payable in
lieu of a fractional share of Parent Stock to which such holder is entitled
pursuant to Section 2.8. No holder of any unsurrendered Certificate shall
be entitled, until the surrender of such Certificate, to vote the shares of
Parent Stock into which the shares of Company Common Stock represented
thereby shall have been converted.
2.7 CANCELLATION AND RETIREMENT OF COMPANY COMMON STOCK. As of the
Effective Time, all Outstanding Company Shares shall cease to be
outstanding and shall automatically be canceled and retired and shall cease
to exist.
2.8 NO FRACTIONAL SHARES.
(a) No certificates representing fractional shares of Parent Stock
shall be issued upon the surrender for exchange of shares of Company Common
Stock which have been converted pursuant to this Agreement, and such
fractional share interests shall not entitle the owner thereof to vote or
to have any rights of a stockholder of Parent.
(b) In lieu of any such fractional shares, each holder of shares
of Company Common Stock who would otherwise have been entitled to a
fraction of a share of Parent Stock upon surrender of all of such holder's
shares of Company Common Stock for exchange pursuant to this Article 2 will
be paid an amount in cash (without interest), rounded to the nearest cent,
determined by multiplying (a) the last reported sale price per share of
Parent Stock as reported by the Nasdaq Stock Market on the day immediately
preceding the date on which the Effective Time occurs (or, if Parent Stock
does not trade on the Nasdaq Stock Market on such date, the first date of
trading of Parent Stock on the Nasdaq Stock Market after the Effective
Time) by (b) the fractional interest to which such holder otherwise would
be entitled. Such amount in cash shall be deemed to be substituted for any
such fractional share and to constitute a portion of the Aggregate Merger
Consideration with respect to the related shares of Company Common Stock
and shall not reduce, offset or otherwise affect the Cash Consideration
Amount.
2.9 NO LIABILITY. None of Parent, Merger Sub, or the Surviving
Corporation shall be liable to any person in respect of any payments or
distributions payable in respect of shares of Parent Stock issuable in
exchange for any unsurrendered Certificate that are delivered to a public
official pursuant to any applicable abandoned property, escheat or similar
law. If any shares of Company Common Stock shall not have been surrendered
prior to five years after the Effective Time (or immediately prior to such
earlier date on which any Per Share Merger Consideration in respect of such
shares of Company Common Stock would otherwise escheat to or become the
property of any Governmental Entity), any amounts payable in respect of
such shares of Company Common Stock shall, to the extent permitted by
applicable law, become the property of Parent, free and clear of all claims
or interest of any Person previously entitled thereto.
2.10 TAX WITHHOLDING. Parent shall be entitled to deduct and
withhold, or cause to be deducted or withheld, from the consideration
otherwise payable pursuant to this Agreement to any holder of shares of
Company Common Stock such amounts, if any, as are required to be deducted
and withheld with respect to the making of such payment under the Code, or
any provision of applicable state, local or foreign tax law. To the extent
that amounts are so deducted and withheld, such deducted and withheld
amounts shall be treated for all purposes of this Agreement as having been
paid to such holders in respect of which such deduction and withholding was
made.
2.11 BOARD REPRESENTATION. As provided in this Section 2.11, the
Stockholders shall be entitled to designate one person (the "STOCKHOLDERS'
DESIGNEE") for election to Parent's Board of Directors effective as of the
Effective Time, subject to the consent of Parent, which consent shall not
be unreasonably withheld. At the Effective Time, Parent shall increase the
size of the Board of Directors of Parent by increasing the number of
directors in Class I by one and shall cause the vacancy created thereby to
be filled by the Stockholders' Designee; provided that the Stockholders
shall have delivered notice to Parent of the identity of the Stockholder's
Designee not less than ten days prior to the Closing Date. In connection
with the annual meeting of the stockholders of Parent next following the
Effective Time, Parent shall nominate the Stockholders' Designee for
election as a director by the stockholders of Parent and shall solicit
proxies for election of the Stockholders' Designee.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the COMPANY DISCLOSURE SCHEDULE (each
reference contained herein to such COMPANY DISCLOSURE SCHEDULE qualifies
the referenced representation and warranty to the extent specified in the
COMPANY DISCLOSURE SCHEDULE and such other representations and warranties
contained herein (regardless of whether or not such representation or
warranty contains a reference to such COMPANY DISCLOSURE SCHEDULE) to the
extent a matter in such COMPANY DISCLOSURE SCHEDULE is disclosed in such a
way as to make it readily apparent on its face that such reference
qualifies such other representation or warranty) of the Company attached
hereto, the Company represents and warrants to the Parent Parties as
follows:
3.1 ORGANIZATION.
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation,
and has the corporate power and authority to own or lease all of its
properties and assets and to carry on its business as it is now being
conducted, except where the failure to be in good standing would not
reasonably be expected to have a Material Adverse Effect on the Company.
Each Subsidiary of the Company that is a partnership or a limited liability
company is duly organized and validly existing under the laws of its
jurisdiction of organization, and each has the power and authority to own
or lease all of its properties and assets and to carry on its business as
it is now being conducted. The Company and each Subsidiary is qualified to
do business, and is in good standing, in each jurisdiction where the
character of its properties owned or held under lease or the nature of its
activities makes such qualification necessary, except where the failure to
be so qualified or in good standing would not reasonably be expected to
have a Material Adverse Effect on the Company. Section 3.1(a) of the
COMPANY DISCLOSURE SCHEDULE sets forth a list of each jurisdiction in which
the Company and each of its Subsidiaries is qualified, authorized,
registered or licensed to do business as a foreign corporation.
(b) The minute books of the Company (from and after the
Reorganization), copies of which have been made available to Parent,
contain true, complete and accurate records of all meetings and other
corporate actions held or taken since the Reorganization by its
stockholders, members or partners, as the case may be, and Boards of
Directors (including committees of its Board of Directors).
3.2 CERTIFICATE OF INCORPORATION AND BYLAWS.
(a) True, correct and complete copies of the certificate of
incorporation, bylaws or equivalent organizational documents, each as
amended to date (collectively, the "CHARTER DOCUMENTS") of the Company and
each of its Subsidiaries have been delivered or made available to Parent.
The Charter Documents of the Company and each of its Subsidiaries are
valid, binding and in full force and effect. Neither the Company nor any of
its Subsidiaries is in violation of any provision of its Charter Documents.
(b) Except for any such violation or consent or other right that
has been validly waived or consented to prior to the date hereof, neither
the Company nor any of its Subsidiaries has authorized or entered into any
contract, agreement or arrangement or otherwise engaged in any transaction
(i) in violation of any of its Charter Documents, or without obtaining any
vote, approval or consent required thereunder, (ii) in violation of any of
the Listed Agreements, or without obtaining any vote, approval or consent
of any Stockholder or any other party thereto (or any group comprised of
one or more of them) required thereunder, or (iii) that would trigger or
accelerate any rights of any Stockholder or any other party thereto under
any of the Listed Agreements. Except as disclosed in Section 3.2(b) of the
COMPANY DISCLOSURE SCHEDULE, neither the Company nor any of its
Subsidiaries has received a "Voting Shift Notice" from any Stockholder
under any Listed Agreement or any similar agreement in existence prior to
the Reorganization.
3.3 CAPITALIZATION.
(a) The authorized capital stock of the Company consists of (i)
50,000,000 shares of Company Common Stock, of which 1,000,000 shares are
issued and outstanding, subject to the issuance of additional shares of
Common Stock prior to the Effective Time as contemplated in the
Reorganization and Consent Agreement, dated as of February 23, 2001, among
SWPCS Holding L.L.C., the stockholders named therein, Southwest PCS
Holdings, Inc., Paribas Capital Funding LLC and Chickasaw Holding Company
(the "REORGANIZATION AND CONSENT AGREEMENT"), and (ii) no shares of
preferred stock. All of the issued and outstanding shares of Company Common
Stock have been duly authorized and validly issued, are fully paid and
nonassessable and are free and clear of any preemptive rights, with no
personal liability attaching to the ownership thereof. There are no
outstanding preemptive, conversion or other rights, or other options,
warrants or agreements granted by, issued by or binding upon the Company
for the issuance, sale, purchase, repurchase, redemption, acquisition or
other transfer of its equity securities, other than as described in Section
3.3(a) of the COMPANY DISCLOSURE SCHEDULE.
(b) As of the date hereof, Section 3.3(b) of the COMPANY
DISCLOSURE SCHEDULE sets forth a true and complete list of all holders of
shares of Company Common Stock and the number of such shares held by each
such Person.
3.4 COMPANY SUBSIDIARIES. Section 3.4 of the COMPANY DISCLOSURE
SCHEDULE sets forth a list of each Subsidiary of the Company. Except as set
forth in Section 3.4 of the COMPANY DISCLOSURE SCHEDULE, the Company owns,
directly or indirectly, all of the issued and outstanding shares of the
capital stock (or all of the other equity or ownership interests) of each
of such Subsidiaries, free and clear of all Liens, other than Permitted
Liens, and all of such shares or other equity or ownership interests are
duly authorized and validly issued and are fully paid, nonassessable and
free of preemptive rights, with no personal liability attaching to the
ownership thereof, except with respect to the general partnership interests
in Southwest PCS, L.P. held by SWGP, L.L.C. No Subsidiary of the Company
has or is bound by any outstanding subscriptions, options, warrants, calls,
commitments or agreements of any character calling for the purchase or
issuance of any shares of capital stock or any other equity security or
partnership or membership interest of such Subsidiary or any securities
representing the right to purchase or otherwise receive any shares of
capital stock or any other equity security or partnership or membership
interest of such Subsidiary. At the Effective Time, assuming satisfaction
of the conditions set forth in Section 8.2(i), there will not be any
outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character by which the Company or any of its Subsidiaries
will be bound calling for the purchase or issuance of any shares of the
capital stock or any other equity security or partnership or membership
interest of the Company or any of its Subsidiaries.
3.5 AUTHORITY AND ENFORCEABILITY.
(a) The Company has the requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by the Company of this
Agreement, and the consummation by the Company of the transactions
contemplated hereby, have been duly authorized by its Board of Directors.
This Agreement has been adopted by the unanimous written consent of the
Stockholders in accordance with Sections 228 and 251(c) of the DGCL and the
Company's Charter Documents (a copy of which is set forth in Section 3.5 of
the COMPANY DISCLOSURE SCHEDULE). No other corporate action on the part of
the Company or its Stockholders is necessary to authorize the execution and
delivery by the Company of this Agreement and the consummation by it of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Company and (assuming due authorization, execution and
delivery by Parent and Merger Sub) constitutes a valid and binding
agreement of the Company and is enforceable against the Company in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and limitations on the availability of
equitable remedies.
(b) Prior to execution and delivery of this Agreement, the Board
of Directors of the Company has (i) approved and declared advisable this
Agreement, the Merger and the other transactions contemplated hereby and
(ii) determined that the transactions contemplated hereby are fair to and
in the best interests of the holders of shares of Company Common Stock.
3.6 COMPLIANCE.
(a) Except as disclosed in Section 3.6(a) of the COMPANY
DISCLOSURE SCHEDULE, neither the Company nor any of its Subsidiaries is in
violation of, in any material respect, or in default in any material
respect under, and no event has occurred that (with notice or the lapse of
time or both) would constitute a violation of or default, or result in the
creation of any Lien upon any of the properties or assets of the Company or
any of its Subsidiaries, under (i) its Charter Documents, (ii) any loan,
guarantee of indebtedness, credit agreement, note, bond, mortgage or
indenture binding upon the Company or any of its Subsidiaries, or (iii) any
applicable law, statute, order, rule, regulation, policy and/or guideline
of any Governmental Entity.
(b) Except as set forth on Section 3.6(b) of the COMPANY
DISCLOSURE SCHEDULE, each of the Company and its Subsidiaries has obtained
and holds all permits, licenses, variances, exemptions, orders, franchises,
approvals and authorizations of all Governmental Entities necessary for the
lawful conduct of its business and the lawful ownership, use and operation
of its assets ("COMPANY PERMITS"), except for Company Permits which the
failure to obtain or hold would not, individually or in the aggregate, have
a Material Adverse Effect on the Company. Except as set forth on Section
3.6(b) of the COMPANY DISCLOSURE SCHEDULE, the Company is in material
compliance with the terms of its Company Permits.
(c) This Section 3.6 shall not apply to any matter to the extent
such matter is specifically covered by any other representation or warranty
contained herein referring to a law, statute, order, rule, regulation,
policy and/or guideline of any Governmental Entity, including without
limitation the representations and warranties set forth in Sections 3.8,
3.10(b), 3.13, 3.14, 3.15, 3.19, 3.21(b) and 3.23.
3.7 NO CONFLICT. Except as disclosed in Section 3.7 of the COMPANY
DISCLOSURE SCHEDULE, the execution and delivery by the Company of this
Agreement do not, and the consummation of the transactions contemplated
hereby and compliance with the provisions hereof will not, (a) assuming
that the consents and approvals referred to in Section 3.8 are obtained,
result in any violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation
or acceleration of any obligation or to the loss of a material benefit
under, any loan, guarantee of indebtedness, credit agreement, note, bond,
mortgage, indenture, lease, agreement, contract, instrument, permit,
concession, franchise, right or license binding upon the Company or any of
its Subsidiaries, or result in the creation of any Lien upon any of the
properties or assets of the Company or any of its Subsidiaries, (b)
conflict with or result in any violation of any provision of the Charter
Documents, in each case as amended, of the Company or any of its
Subsidiaries, (c) conflict with or violate any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to the Company or
any of its Subsidiaries or any of their respective properties or assets, or
(d) require any authorization, consent or approval of a third party
pursuant to any Material Contract, other than, in the case of clauses (a),
(c) and (d), any such right of termination, cancellation or acceleration,
violation, conflict, default, right, loss or Lien that, individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect on the Company.
3.8 GOVERNMENT APPROVALS. No filing or registration with, or
authorization, consent or approval of, any Governmental Entity is required
by or with respect to the Company or any of its Subsidiaries in connection
with the execution and delivery of this Agreement by the Company or is
necessary for the consummation of the transactions contemplated hereby
(including, without limitation, the Merger) except (a) the filing of a
notification under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR ACT"), (b) the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware, (c) such
consents, approvals, authorizations, permits, filings and notifications
listed in Section 3.8 of the COMPANY DISCLOSURE SCHEDULE, (d) the grant of
applications by the Federal Communications Commission ("FCC") and (e) such
other consents, orders, authorizations, registrations, declarations and
filings the failure of which to obtain or make would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect
on the Company (including filings in connection with Company Permits, the
failure of which to obtain would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on the Company).
3.9 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth in
Section 3.9 of the COMPANY DISCLOSURE SCHEDULE, since December 31, 2000,
the Company and its Subsidiaries have conducted their respective businesses
and operations in all material respects in the ordinary and usual course
consistent with past practice and there has not occurred (a) through the
date hereof, any change in the business, condition (financial or
otherwise), assets, liabilities (absolute, accrued, contingent or
otherwise), properties, working capital, or results of operations of the
Company and its Subsidiaries that has caused or would reasonably be
excepted to result in a Material Adverse Effect on the Company, (b) any
declaration, setting aside or payment of any dividend or distributions of
any kind by the Company on any class of its equity securities, (c) any
material increase in the compensation payable or to become payable by the
Company or any Subsidiary to its directors, officers or employees or any
material increase in any bonus, insurance, pension or other employee
benefit plan, payment or arrangement made to, for or with such directors,
officers or employees, (d) any material change by the Company or its
Subsidiaries in accounting methods, principles or practices except as
required by GAAP, (e) any material change in tax accounting methods,
principles or practices by the Company or any Subsidiary, except insofar as
required by the Code or (f) any event that, if taken during the period from
the date of this Agreement through the Effective Time, would constitute a
breach of Section 6.1 hereof. Except as set forth in Section 3.9 of the
COMPANY DISCLOSURE SCHEDULE, since December 31, 2000, through the date
hereof, the Company and its Subsidiaries have not (a) permitted or allowed
any of its property or assets (real, personal or mixed, tangible or
intangible) to be subjected to any mortgage, pledge, lien, security
interest, encumbrance, restriction or charge of any kind, except for liens
for current taxes not yet due; (b) written down the value of any inventory
(including write-downs by reason of shrinkage or xxxx-down) or written off
as uncollectible any notes or accounts receivable, except for immaterial
write-downs and write-offs in the ordinary course of business and
consistent with past practice; or (c) agreed, whether in writing or
otherwise, to take any action described in this section. Since December 31,
2000, the Company's expenditures, other than expenditures incurred in
connection with the Reorganization and Merger, have been incurred in all
material respects in the ordinary and usual course consistent with past
practice.
3.10 ACTIONS AND PROCEEDINGS.
(a) Except as disclosed in Section 3.10 of the COMPANY DISCLOSURE
SCHEDULE, there are no outstanding orders, judgments, injunctions, awards
or decrees of any Governmental Entity against the Company or any of its
Subsidiaries, any of their properties, assets or businesses, or, to the
knowledge of the Company, any of the Company's or its Subsidiaries' current
or former directors or officers or any other person whom the Company or any
of its Subsidiaries has agreed to indemnify, as such. Except as disclosed
in Section 3.10 of the COMPANY DISCLOSURE SCHEDULE, there are no actions,
claims, suits or legal, administrative, regulatory or arbitration
proceedings pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries, any of their properties, assets or
businesses or, to the knowledge of the Company, any of the Company's or its
Subsidiaries' current or former directors or officers or any other person
whom the Company or any of its Subsidiaries has agreed to indemnify, as
such, or challenging the validity of the transactions contemplated by this
Agreement, and, to the knowledge of the Company, no event has occurred, and
no state of facts exists, that are reasonably likely to result in any such
action, suit or proceeding.
(b) The Company has no knowledge of any investigation, notice of
apparent liability, violation, forfeiture or other order or complaint
issued by or before the FCC or any other Governmental Entity or of any
other proceedings of or before the FCC or any other Governmental Entity
relating to the Company or any of its Subsidiaries. No proceedings are
pending or, to the knowledge of the Company, threatened to revoke or limit
any of the Company Permits.
(c) To the knowledge of the Company, no event has occurred which
(i) will result in, or after notice or lapse of time or both could
reasonably be expected to result in, revocation, suspension, adverse
modification, non-renewal, impairment, restriction or termination of, or
order of forfeiture with respect to, any of the Company Permits, or (ii)
affects or could reasonably be expected in the future to affect any of the
rights of the Company or its Subsidiaries under any Company Permits.
3.11 ABSENCE OF UNDISCLOSED LIABILITIES. As of the date hereof,
except as set forth in Section 3.11 of the COMPANY DISCLOSURE SCHEDULE and
for liabilities or obligations that are accrued or reserved against in the
Company Financial Statements, neither the Company nor any of its
Subsidiaries has any liabilities or obligations (whether absolute, accrued,
known or unknown, contingent or otherwise), other than (a) liabilities or
obligations incurred in the ordinary course of business since December 31,
2000, (b) liabilities or obligations that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on the
Company, (c) liabilities or obligations incurred as a result of compliance
by the Company and its Subsidiaries with the terms of this Agreement and
(d) fees and expenses relating to the Reorganization or the transactions
contemplated herein as set forth on Schedules 3.11, 7.15(a) and 7.15(b),
and such other fees and expenses which are not, individually or in the
aggregate, material to the Company.
3.12 AMOUNT OF INDEBTEDNESS. The aggregate principal amount of
indebtedness for borrowed money of the Company and its Subsidiaries
outstanding as of the date hereof is approximately $79,500,000. Except as
set forth in Section 3.12 of the COMPANY DISCLOSURE SCHEDULE, the Company
and its Subsidiaries are not subject to any prepayment penalties with
respect to any such indebtedness.
3.13 TAXES.
(a) (i) The Company and each of its Subsidiaries has filed all Tax
Returns required to have been filed on or prior to the date hereof, or
appropriate extensions therefor have been properly obtained, and such Tax
Returns are true, correct and complete; (ii) all Taxes (whether imposed
directly or indirectly) shown to be due on such Tax Returns either (A) have
been timely paid or (B) extensions for payment have been properly obtained
or such Taxes are being timely and properly contested and, in either case,
proper accruals pursuant to GAAP have been established on the Company's
consolidated financial statements with respect thereto; (iii) the Company
and each of its Subsidiaries have complied with all rules and regulations
relating to the withholding of Taxes; (iv) except as set forth in Section
3.13(a) of the COMPANY DISCLOSURE SCHEDULE, neither the Company nor any of
its Subsidiaries has waived any statute of limitations in respect of its
Taxes or Tax Returns; (v) Tax Returns of the Company and its Subsidiaries
relating to federal, foreign and material state Taxes have not been
examined by the Internal Revenue Service or the appropriate taxing
authority, except as disclosed in Section 3.13(a) of the COMPANY DISCLOSURE
SCHEDULE, which sets forth all closed and pending audits, examination or
claims by any taxing authority of any Tax Returns, and no extension of the
statute of limitations for the assessment of any federal, foreign and
material state income Taxes has been granted by the Company or any of its
Subsidiaries, except as disclosed in Section 3.13(a) of the COMPANY
DISCLOSURE SCHEDULE; (vi) no issues that have been raised by a taxing
authority in connection with the examination of any federal, foreign or
material state Tax Returns of the Company or its Subsidiaries are currently
pending; (vii) all deficiencies asserted or assessments made as a result of
any examination of such Tax Returns by any taxing authority have been paid
in full or are being timely and properly contested and proper accruals
pursuant to GAAP have been established on the Company's consolidated
financial statements with respect thereto; (viii) except as set forth in
Section 3.13(a) of the COMPANY DISCLOSURE SCHEDULE, neither the Company nor
any of its Subsidiaries has any liability for Taxes of any Person other
than the Company and its Subsidiaries under (A) Treasury Regulations
Section 1.1502-6 (or any similar provision of state, local or foreign law)
or (B) any express or implied agreement; (ix) except as set forth in
Section 3.13(a) of the COMPANY DISCLOSURE SCHEDULE, neither the Company nor
any of its Subsidiaries has been a member of any affiliated group within
the meaning of Section 1504(a) of the Code other than the affiliated group
of which the Company is the common parent organization; (x) the unpaid
Taxes of the Company and its Subsidiaries for Tax periods from June 4,
1998, through the Closing Date are normal recurring Taxes attributable
solely to the conduct of their business in the ordinary course and in a
manner consistent with past practices, and (xi) the Company and its
Subsidiaries (or, in the case of clause (A) below, each of the
Subsidiaries) as of the most recent practicable date (as well as on an
estimated pro forma basis as of the Closing giving effect to the
consummation of the transactions contemplated hereby) do not have any: (A)
excess loss accounts as defined in Treas. Reg. Section 1.1502-19; (B) Code
Section 481 adjustments allocable to the Company or any Subsidiary; or (C)
deferred gains or losses allocable to the Company or its Subsidiaries
arising out of any deferred intercompany transaction as defined in Treas.
Reg. Section 1.1502-13 or similar provisions of U.S. federal, state, local
or foreign tax law.
(b) No examination or audit by the Internal Revenue Service or any
taxing authority of any Tax Return of the Company and/or any of its
Subsidiaries is currently in progress or, to the knowledge of the Company,
threatened or contemplated. Except as described in Section 3.13(b) of the
COMPANY DISCLOSURE SCHEDULE, neither the Company nor any of its
Subsidiaries has been informed by any jurisdiction that the jurisdiction
believes that the Company or any of its Subsidiaries was required to file
any Tax Return that was not filed.
(c) Neither the Company nor any of its Subsidiaries is a "consent
corporation" within the meaning of Section 341(f) of the Code, and none of
the assets of the Company or its Subsidiaries are subject to an election
under Section 341(f) of the Code.
(d) Neither the Company nor any of its Subsidiaries has been a
United States real property holding corporation within the meaning of
Section 897(c)(2) of the Code during the applicable period specified in
Section 897(c)(1)(A)(ii) of the Code.
(e) Except as set forth in Section 3.13(e) of the COMPANY
DISCLOSURE SCHEDULE, since June 4, 1998, the Company and its Subsidiaries
have used tax accounting methods, practices and elections consistent with
past practices, and have not used any improper, invalid or inconsistent
method, practice or election with respect to any period beginning on or
prior to the date hereof.
(f) Except as set forth in Section 3.13(f) of the COMPANY
DISCLOSURE SCHEDULE, to the knowledge of the Company, no state of facts or
circumstances exists which is reasonably likely to constitute grounds for
any audit or examination of, or the assessment of additional Taxes with
respect to, Tax Returns previously filed, or with respect to Tax Returns
previously failed to have been filed, by the Company or any of its
Subsidiaries.
(g) At all times prior to the effective time of the
Reorganization, the Company qualified as a partnership for federal income
tax purposes and not as an association taxed as a corporation.
(h) Except as disclosed in Section 3.13(h) of the COMPANY
DISCLOSURE SCHEDULE, no amount payable under any Benefit Plan will fail to
be deductible for federal income tax purposes by virtue of Section 280G of
the Code.
3.14 EMPLOYEE BENEFIT PLANS; ERISA.
(a) Section 3.14(a) of the COMPANY DISCLOSURE SCHEDULE sets forth
the name of each Company Plan and of each bonus, deferred compensation
(together with a list of participants therein), incentive compensation,
profit sharing, salary continuation (together with a list of participants
therein), employee benefit plan, stock purchase, stock option, employment,
severance, termination, golden parachute, consulting or supplemental
retirement plan or agreement (collectively, the "BENEFIT PLANS"). With
respect to each Benefit Plan, to the extent applicable, the Company has
delivered to Parent correct and complete copies of (i) the plan documents
and summary plan descriptions, (ii) the most recent determination letter
received from the Internal Revenue Service, (iii) the most recent Form 5500
annual report, and (iv) all related trusts, insurance contracts and other
funding agreements which relate to any Benefit Plan.
(b) Except to the extent that, in the aggregate, breaches of this
Section 3.14(b) would not result in a Material Adverse Effect on the
Company and except as described in Section 3.14(b) of the COMPANY
DISCLOSURE SCHEDULE: (i) each Company Plan and Benefit Plan complies in all
respects with the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), the Code and all other applicable laws and
administrative or governmental rules and regulations; (ii) no liability or
contingent liability under Title IV or Section 302 of ERISA has been
incurred by the Company or any ERISA Affiliate that has not been satisfied
in full, and neither the Company nor any ERISA Affiliate made, or was
required to make, contributions to any plan subject to Title IV of ERISA
during the last six years ended prior to the Effective Time; (iii) there
are no actions, suits or claims pending or, to the knowledge of the
Company, threatened (other than routine claims for benefits) with respect
to any Company Plan or Benefit Plan; (iv) no non-exempt prohibited
transactions described in Section 406 of ERISA or Section 4975 of the Code
have occurred (v) no Benefit Plan provides medical, surgical,
hospitalization, death or similar benefits (whether or not insured) for
employees or former employees for periods extending beyond their retirement
or other termination of service, other than (A) coverage mandated by
applicable law, (B) benefits under any "pension plan" or (C) benefits the
full cost of which is borne by the current or former employee (or his or
her beneficiary); and (vi) all Company Plans and Benefit Plans that are
intended to be qualified under Section 401(a) of the Code have received a
favorable determination letter as to such qualification from the Internal
Revenue Service, and no event has occurred, either by reason of any action
or failure to act, which could be expected to cause the loss of any such
qualification, and the Company is not aware of any reason why any Company
Plan and Benefit Plan is not so qualified in operation. As used herein: (i)
"COMPANY PLAN" means a "pension plan" (as defined in Section 3(2) of ERISA)
or a "welfare plan" (as defined in Section 3(l) of ERISA) established or
maintained by the Company or any of its ERISA Affiliates or to which the
Company or any of its ERISA Affiliates has contributed in the last six
years or otherwise may have any liability; and (ii) "ERISA AFFILIATE" means
any entity which is part of a "controlled group" with the Company or under
"common control" with the Company (within the meaning of Section 414(b) or
(c) of the Code).
(c) Except as disclosed on Section 3.14(c) of the COMPANY
DISCLOSURE SCHEDULE, the consummation of the transactions contemplated by
this Agreement will not (either alone or in combination with any other
event, including a termination of employment) (i) entitle any current or
former director, officer or employee of the Company or any of its ERISA
Affiliates to severance pay, change of control payments, golden parachute
payments, unemployment compensation or any other payment, except as
expressly provided in this Agreement, (ii) accelerate the time of payment
or vesting, or increase the amount of, compensation or other economic
benefit provided or made available to any such director, officer or
employee, or (iii) accelerate or increase the funding obligation of the
Company or its Subsidiaries with respect to any Company Plan.
3.15 ENVIRONMENTAL MATTERS. Except as disclosed in Section 3.15 of
the COMPANY DISCLOSURE SCHEDULE, and except for such matters that would
not, individually or in the aggregate, have or reasonably be expected to
have, a Material Adverse Effect on the Company:
(a) The Company and its Subsidiaries have obtained, or have timely
applied for, all permits, licenses, approvals, identification numbers and
other authorizations (collectively, "ENVIRONMENTAL PERMITS") necessary
under applicable Environmental Laws to conduct their business and
operations as currently conducted.
(b) The Company and its Subsidiaries are in compliance with all
applicable Environmental Laws and Environmental Permits, and neither the
Company nor any of its Subsidiaries has received any written communication
from any Person or Governmental Entity that alleges that the Company or any
of its Subsidiaries is not in such compliance or is liable for remediation,
cost recovery or contribution under CERCLA.
(c) There are no Environmental Claims pending or, to the knowledge
of the Company, threatened, against the Company or any of its Subsidiaries,
in either case arising out of (i) any real property currently or formerly
owned, leased or operated by the Company or any of its Subsidiaries or (ii)
any current or former operations of the Company or any of its Subsidiaries.
(d) Neither the Company nor any of its Subsidiaries has retained
or assumed, either contractually or by operation of law, any liabilities of
which the Company has knowledge arising under applicable Environmental
Laws.
(e) The Company and its Subsidiaries are in compliance with all
applicable Environmental Laws governing the investigation, remediation and
monitoring of a facility at the time of its transfer to the extent required
to consummate the transactions contemplated by this Agreement.
(f) To the knowledge of the Company, no event has occurred, and no
state of facts exists, that is reasonably likely to result in any
Environmental Claim described in Section 3.15(c) above.
(g) Neither the Company nor any of its Subsidiaries (i) has
entered into or agreed to any consent decree or order or is subject to any
judgment, decree or judicial order relating to compliance with
Environmental Laws, Environmental Permits or the investigation, sampling,
monitoring, treatment, remediation, removal or cleanup of Hazardous
Materials and, to the knowledge of the Company, no investigation,
litigation or other proceeding is pending or threatened in writing with
respect thereto, or (ii) is an indemnitor in connection with any claim
threatened or asserted in writing by any third-party indemnitee for any
liability under any Environmental Law or relating to any Hazardous
Materials.
(h) None of the real property owned or leased by the Company or
any Company Subsidiary is listed or, to the knowledge of the Company,
proposed for listing on the "National Priorities List" under CERCLA, as
updated through the date hereof, or any similar state or foreign list of
sites requiring investigation or cleanup.
(i) To the knowledge of the Company, there are no underground
storage tanks or above-ground storage tanks located on any real property
owned or leased by the Company or any of its Subsidiaries which are now, or
in the past were, used to store Hazardous Materials.
For the purpose of this Agreement:
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended as of the date thereof.
"ENVIRONMENTAL LAWS" means any federal, state, local or foreign
statute, law, ordinance, regulation, rule, code, treaty, writ or order and
any enforceable judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree, judgment
stipulation, injunction, permit, authorization, policy, opinion or agency
requirement, in each case having the force and effect of law, relating to
the pollution, protection, investigation or restoration of the environment,
health and safety as affected by the environment or natural resources,
including, without limitation, those relating to the use, handling,
presence, transportation, treatment, storage, disposal, release, threatened
release or discharge of Hazardous Materials or noise, odor, wetlands,
pollution or contamination (including any and all National Environmental
Protection Act requirements).
3.16 AFFILIATE TRANSACTIONS. Except as set forth in Section 3.16 of
the COMPANY DISCLOSURE SCHEDULE, there are no Material Contracts, other
material agreements or transactions or any loan arrangements or other
liabilities for advanced funds between the Company or any of its
Subsidiaries, on the one hand, and any (a) officer or director of the
Company or of any of its Subsidiaries, (b) record or beneficial owner of
five percent or more of any class of the voting securities of the Company
or (c) Affiliate of any such officer, director or beneficial owner, on the
other hand. Except as set forth in Section 3.16 of the COMPANY DISCLOSURE
SCHEDULE, as of the date hereof, no Stockholder nor any officer or director
of the Company or any of its Subsidiaries (a) owns or holds, directly or
indirectly, in whole or in part, any Intellectual Property used by the
Company, (b) has any claim, charge, action or cause of action against the
Company or any of its Subsidiaries, except for claims for reasonable
unreimbursed travel or entertainment expenses, accrued vacation pay or
accrued benefits, in each case, under any employee benefit plan existing on
the date hereof, (c) owes any money to the Company or any of its
Subsidiaries or (d) has any material interest in any property, real or
personal, tangible or intangible, used in or pertaining to the business of
the Company or any of its Subsidiaries.
3.17 BROKERS. No broker, finder, investment banker or financial
advisor has been retained by the Company or any its Subsidiaries or any of
their respective officers or directors, or is entitled to any brokerage,
finder's or other fee or commission from the Company in connection with the
transactions contemplated by this Agreement, other than the fees payable to
Bear, Xxxxxxx & Co., Inc. pursuant to the agreement between Bear, Xxxxxxx
and the Company, a copy of which has previously been made available to
Parent.
3.18 FINANCIAL INFORMATION. Section 3.18 of the COMPANY DISCLOSURE
SCHEDULE contains true and correct copies of (a) the audited consolidated
balance sheets for the Company and its Subsidiaries at December 31, 1999
and the related statements of income, members' equity and cash flows for
the one-year period then ended accompanied by the audit report of Ernst &
Young LLP, independent public accountants with respect to the Company, and
(b) the unaudited consolidated balance sheet for the Company and its
Subsidiaries at December 31, 2000 and the related statements of income,
members' equity and cash flows for the one-year period then ended
(collectively, the "COMPANY FINANCIAL STATEMENTS"). The Company Financial
Statements (including related notes) fairly present, in all material
respects, and the financial statements to be delivered by the Company to
Parent after the date of this Agreement pursuant to Section 7.3 hereof will
fairly present, in all material respects, the consolidated financial
position of the Company and its consolidated Subsidiaries, as at the
respective dates thereof and the consolidated results of their operations
and their consolidated cash flows for the respective periods then ended
(subject, in the case of the unaudited statements, to normal year-end audit
adjustments and to any other adjustments described therein) in conformity
with GAAP (except in the case of the unaudited statements for the lack of
notes thereof) applied on a consistent basis during the periods involved
(except as may be indicated therein or in the notes thereto). Since
December 31, 2000, the Company has not made any change in the accounting
practices or policies applied in the preparation of its financial
statements, except as set forth in Section 3.18 of the COMPANY DISCLOSURE
SCHEDULE or as otherwise may be required by GAAP. Each of the Company's
financial books and records (including without limitation all financial
records, business records, ownership transfer records, customer lists and
records pertaining to services or products delivered to customers) (x) is
complete and correct in all material respects and all transactions to which
the Company is or has been a party are accurately reflected therein and (y)
form an adequate basis for the Company Financial Statements.
3.19 INTELLECTUAL PROPERTY.
(a) Except as set forth in Section 3.19(a) of the COMPANY
DISCLOSURE SCHEDULE, the Company and its Subsidiaries own, or are licensed
or otherwise have the right to use, all United States and foreign issued
patents, patent rights, patent applications, registered trademarks,
trademark applications, registered service marks, service xxxx
applications, trade names, copyrights, software, trade dress, customer
lists, processes, products, technologies, discoveries, trade secrets,
copyrightable work, apparatus, licenses, confidential marketing and
customer information, confidential financial information, inventions
(whether or not patentable), and know-how (the "INTELLECTUAL PROPERTY")
currently used by the Company and its Subsidiaries in their business,
except where the failure to so own, license or otherwise have the right to
use such Intellectual Property would not reasonably be expected to have a
Material Adverse Effect on the Company. Except as set forth in Section
3.19(a) of the COMPANY DISCLOSURE SCHEDULE, (a) the use of the Intellectual
Property by the Company and its Subsidiaries does not interfere with,
infringe upon, misappropriate or otherwise come into conflict with any
patent, trademark, service xxxx, trade name, copyright, brand name, logo,
symbol or other intellectual property or proprietary information of any
other Person, and (b) to the knowledge of the Company, no other Person is
interfering with, infringing upon, misappropriating or otherwise coming
into conflict with any Intellectual Property of the Company or any of its
Subsidiaries.
(b) Except as set forth in Section 3.19(b) of the COMPANY
DISCLOSURE SCHEDULE and except as would not, individually or in the
aggregate, reasonable by expected to have a material adverse effect on the
validity or value of any Intellectual Property: (i) to the Company's
knowledge, no written claim of invalidity or conflicting ownership rights
with respect to any Intellectual Property has been made by a third party
and no such Intellectual Property is the subject of any pending or, to the
Company's knowledge, threatened action, suit, claim, investigation,
arbitration or other proceeding; (ii) no Person or entity has given notice
to the Company or any of its Subsidiaries that the use of any Intellectual
Property that is necessary and material to the day-to-day operation of the
Company ("MATERIAL INTELLECTUAL PROPERTY") by the Company, any Company
Subsidiary or any licensee is infringing or has infringed any domestic or
foreign patent, trademark, service xxxx, trade name, or copyright or design
right, or that the Company, any of its Subsidiaries or any licensee has
misappropriated or improperly used or disclosed any trade secret,
confidential information or know-how; (iii) to the Company's knowledge,
there exists no prior act or current conduct or use by the Company, any of
its Subsidiaries or any third party that would void or invalidate any
Material Intellectual Property; and (iv) the execution, delivery and
performance of this Agreement by the Company and the consummation of the
transactions contemplated hereby will not breach, violate or conflict with
any instrument or agreement concerning any Material Intellectual Property,
will not cause forfeiture or termination or give rise to a right of
forfeiture or termination of any of the Material Intellectual Property or
impair the right of Parent or the Surviving Corporation to make, use, sell
license or dispose of, or to bring any action for the infringement of, any
Material Intellectual Property.
3.20 MATERIAL CONTRACTS.
(a) As of the date hereof, Section 3.20(a) of the COMPANY
DISCLOSURE SCHEDULE lists all loans, guarantees of indebtedness, credit
agreements, notes, bonds, mortgages, indentures, leases, agreements,
contracts, instruments, permits, concessions, franchises, rights or
licenses binding upon the Company or any of its Subsidiaries (the "MATERIAL
CONTRACTS") that are: (i) collective bargaining agreements or other
agreements with any labor union, (ii) joint venture agreements or
partnership agreements, (iii) agreements containing covenants that in any
way purport to restrict the business activity of the Company or its
Subsidiaries or limit the freedom of the Company or its Subsidiaries to
engage in any line of business, to disclose confidential information or to
compete with any other Person, (iv) powers of attorney, (v) agreements
involving indemnification for obligations of or losses or damages incurred
by third parties, (vi) employment, secrecy, proprietary information,
noncompetition, restrictive covenant or confidentiality agreements with
present or former employees, (vii) requirements or output contracts, (viii)
contracts relating to indebtedness, liability for borrowed money or the
deferred purchase price of property (excluding trade payables in the
ordinary course of business) or any guarantee or other contingent liability
in respect of any indebtedness or obligation of any Person (other than the
endorsement of negotiable instruments for collection in the ordinary course
of business); (ix) contracts that contain restrictions with respect to
payment of dividends or any other distribution in respect of the equity of
the Company or any of its Subsidiaries; (x) letters of credit or similar
arrangements relating to the Company or any of its Subsidiaries; (xi)
management, consulting or advisory agreements, or severance plans or
arrangements for any present or former employee of the Company or any of
its Subsidiaries; (xii) agreements under which the Company or any of its
Subsidiaries is lessees of or holds or operates any property, real or
personal; (xiii) agreements relating to the acquisition or divestiture of
the capital stock or other equity securities, assets or business of any
Person involving the Company or any of its Subsidiaries; (xiv) sales
distribution agreements, franchise agreements and advertising agreements
relating to the Company or any of its Subsidiaries; (xv) agreements
pursuant to which the Company or any of its Subsidiaries has agreed to
settle any liability for Taxes; (xvi) agreements pursuant to which the
Company has agreed to shift or allocate the liability of the Company, any
of its Subsidiaries or any other Person for Taxes; (xvii) agreements
pursuant to which the Company may be required to file a registration
statement under the Securities Act with respect to any securities issued by
the Company; or (xviii) amendments, modifications or supplements to any of
the foregoing.
(b) The Company has delivered or made available to Parent a true
and complete copy of each written arrangement listed on Section 3.20(a) of
the COMPANY DISCLOSURE SCHEDULE. Except as set forth on Schedule 3.20(a) of
the COMPANY DISCLOSURE SCHEDULE, as of the date hereof, there are no
written amendments to, or waivers under, any Material Contract. Except as
set forth on Schedule 3.20(b) of the COMPANY DISCLOSURE SCHEDULE, with
respect to each such agreement; (i) the Material Contract is in full force
and effect and is valid and enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights
generally and limitations on the availability of equitable remedies; (ii)
neither the Company nor any of its Subsidiaries is in breach or default
thereof in any material respect; (iii) to the Company's knowledge, no event
has occurred which, with notice, or lapse of time or both, would constitute
a material breach or default thereof by the Company or any of its
Subsidiaries or by any other party thereto; (iv) no event has occurred that
would permit termination, modification, or acceleration thereof by any
other party thereto; and (v) neither the Company nor any of its
Subsidiaries nor, to the knowledge of the Company, any other party thereto
has repudiated or acted in a manner materially inconsistent with any
provision thereof. Except as set forth in Schedule 3.20(b) of the COMPANY
DISCLOSURE SCHEDULE, neither the Company nor any of its Subsidiaries is a
party to any verbal contract, agreement, or other arrangement which, if
reduced to written form, would be required to be listed on Section 3.20(a)
of the COMPANY DISCLOSURE SCHEDULE.
(c) As of the date hereof, the following agreements constitute all
agreements between the Company, its Subsidiaries or any of their
Affiliates, on one hand, and Sprint Corporation or any of its Affiliates,
on the other hand (the "SPRINT AGREEMENTS"). Except as set forth in Section
3.20(c) of the COMPANY DISCLOSURE SCHEDULE, the Company has complied in all
material respects with the Sprint Agreements (which agreements are included
in the definition of "Material Contracts" set forth above):
(i) Sprint Management Agreement by and among Sprint Spectrum,
L.P., SprintCom, Inc. and Southwest PCS, dated July 10, 1998 ("SPRINT
MANAGEMENT AGREEMENT");
(ii) Addendum I to Sprint Management Agreement dated July 10,
1998;
(iii) Addendum II to Sprint Management Agreement dated April 30,
1999;
(iv) Addendum III to Sprint Management Agreement dated March 7,
2001;
(v) Sprint PCS Consent and Agreement between Sprint Spectrum,
L.P., Sprint Communications Company, L.P., Wirelessco, L.P., Paribas,
Southwest PCS, L.P., Paribas Capital Funding, L.L.C. and Allied Capital
Corporation, dated April 30, 1999;
(vi) Sprint Trademark and Service Xxxx License Agreement, dated
July 10, 1998, by and between Sprint Communications Company, L.P. and
Southwest PCS, L.P.;
(vii) Sprint Spectrum Trademark and Service Xxxx License
Agreement, dated July 10, 1998, by and between Sprint Spectrum L.P. and
Southwest PCS, L.P.;
(viii) CDMA 1900 SprintCom Additional Affiliate Agreement, dated
July 30, 1998, by and between Southwest PCS and Northern Telecom Inc.;
(ix) Amendment No. 1 to CDMA 1900 SprintCom Additional Affiliate
Agreement by and between Southwest PCS and Nortel Networks, Inc., dated
November 1, 1999;
(x) Sprint PCS Services Agreement, dated July 10, 1998, by and
between Sprint Spectrum, L.P. and Southwest PCS, L.P.;
(xi) Asset Purchase Agreement, dated July 10, 1998;
(xii) Sprint PCS Consent and Agreement, dated April 30, 2000; and
(xiii) Master Sublease Agreement, dated March 30, 2000.
(d) The Company has complied with all Sprint PCS Technical Program
Requirements, as defined in the Sprint Management Agreement, in all
material respects.
(e) The Company has complied with all Sprint PCS Program
Requirements, as defined in the Sprint Management Agreement, in all
material respects.
(f) The Company has complied with all Sprint PCS Customer Service
Standards, as defined in the Sprint Management Agreement, in all material
respects.
(g) The Company has complied with the Sprint PCS Insurance
Requirements, as defined in the Sprint Management Agreement, in all
material respects.
(h) No Event of Termination (as defined therein) has occurred
under the Sprint Management Agreement.
(i) The Company has delivered or made available to Parent true and
complete copies of each Sprint Agreement, including all amendments thereto
and waivers thereunder. There are no unwritten amendments to, or waivers
under, any Sprint Agreement. The Sprint Agreements are valid, binding and
enforceable against the Company or its Subsidiaries and Sprint PCS, in
accordance with their respective terms, and assuming fulfillment of the
conditions specified in Section 8.1(c), the Sprint Agreements shall be in
full force and effect without penalty in accordance with their terms upon
consummation of the Merger and the other transaction contemplated by this
Agreement, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors'
rights generally and limitations on the availability or equitable remedies.
Except as set for on Section 3.20(i) of the COMPANY DISCLOSURE SCHEDULE,
the Company and its Subsidiaries have performed in all material respects,
all obligations required to be performed by them, and they are not in
default under or in breach of, nor in receipt of any claim of default or
breach under, any of the Sprint Agreements. Except as set forth in Section
3.20(i) of the COMPANY DISCLOSURE SCHEDULE, to the knowledge of the
Company, no event has occurred which with the passage of time or the giving
of notice or both would result in a default, breach or event of
noncompliance by the Company or any Subsidiary, or would permit termination
or modification by Sprint PCS or any of its Affiliates, under any of the
Sprint Agreements. Except as set forth on Section 3.20(i) of the COMPANY
DISCLOSURE SCHEDULE, neither the Company nor any Subsidiary has knowledge
of any breach or cancellation or anticipated breach or cancellation by
Sprint PCS or any of its Affiliates of any of the Sprint Agreements.
(j) The Company and its Subsidiaries own or have the right to use
all assets, rights and properties necessary for the conduct of its business
in the manner and to the extent currently conducted.
3.21 ASSETS.
(a) PERSONAL PROPERTY. Except as disclosed in Section 3.21(a) of
the COMPANY DISCLOSURE SCHEDULE, and except for such matters that would
not, individually or in the aggregate, be material to the Company:
(i) The Company or a Subsidiary of the Company is the sole owner
of the assets reflected in the Company Financial Statements and has good
and marketable title to all such assets that are personalty (the "PERSONAL
PROPERTY") (other than the leased Personal Property described below), in
each case free and clear of all Liens, except for Permitted Liens. With
respect to any Personal Property that is leased, the Company or the
applicable Subsidiary is in compliance in all material respects with each
such lease and is the sole holder of a valid and subsisting leasehold
interest, free and clear of any Liens, other than Permitted Liens. Section
3.21(a)(i) of the COMPANY DISCLOSURE SCHEDULE lists all lease agreements,
service agreements or other agreements related to leased Personal Property.
(ii) The Company maintains an inventory of telephones and
accessories as required under the Company's agreements with Sprint
Corporation and its Affiliates, which inventory is reflected as required by
GAAP in the Company Financial Statements and covered by the manufacturers'
applicable warranties.
(iii) All buildings, facilities, offices, improvements on real
estate, fixtures, machinery, equipment, computer hardware and software,
vehicles and other properties owned or leased by the Company and its
Subsidiaries for the conduct of its business (A) have been maintained in
accordance with maintenance practices that are standard for the Company's
industry and (B) are adequate and sufficient for all business operations
conducted by the Company and its Subsidiaries and are in condition and
repair adequate and sufficient for all business operations conducted by the
Company and its Subsidiaries and comply in all material respects with all
contractual obligations of the Company and its Subsidiaries.
(iv) All notes payable to, and accounts receivable of, the Company
and its Subsidiaries (the "ACCOUNTS RECEIVABLE"), whether reflected in the
Company Financial Statements or otherwise, represent valid obligations of
customers of the Company and were created in the ordinary course of
business and have been collected or are collectible in the amounts thereof
reflected in the books and records of the Company, net of reserves or
contractual allowances reflected in the Company Financial Statements.
(v) Section 3.21(a)(v) of the COMPANY DISCLOSURE SCHEDULE sets
forth the names and locations of all banks, trust companies, savings and
loan associations and other financial institutions at which the Company or
its Subsidiaries maintains accounts of any nature (collectively, the
"ACCOUNTS"), the numbers of such Accounts and the names of all persons
authorized to draw thereon or to make withdrawals therefrom.
(b) REAL PROPERTY. Except as disclosed in Section 3.21(b) of the
COMPANY DISCLOSURE SCHEDULE, and except for such matters that would not,
individually or in the aggregate, be material to the Company:
(i) Section 3.21(b)(i) of the COMPANY DISCLOSURE SCHEDULE sets
forth a summary description of each parcel of real property and the use
thereof owned by the Company and its Subsidiaries and identifies which of
the Company and its Subsidiaries owns such real property (the "REAL
PROPERTY"). The Company or its Subsidiary has good and marketable title in
fee simple absolute to all Real Property, and to the buildings, structures
and improvements thereon, in each case free and clear of all Liens, other
than Permitted Liens. Neither the Company nor any of its Subsidiaries has
granted any leases on, and there are no tenancies of, the Real Property or
any part thereof. As of the date hereof, neither the Company nor any of its
Subsidiaries has received notification that it is in violation of any
applicable building, zoning, ordinance or regulation in respect of their
operations or Real Property.
(ii) Section 3.21(b)(ii) of the COMPANY DISCLOSURE SCHEDULE sets
forth a summary description of the nature of the Company's and its
Subsidiaries' use of the land, premises, buildings, structures and
improvements held by lease or license (including Tower Leases). The
interests described above are collectively referred to herein as the
"LEASED PREMISES" and the leases and licenses described above and the
leases and tenancies described in Section 3.21(b)(ii) of the COMPANY
DISCLOSURE SCHEDULE are collectively referred to herein as the "REAL ESTATE
CONTRACTS." The Company or its Subsidiary identified as such in Section
3.21(b)(ii) of the COMPANY DISCLOSURE SCHEDULE is the sole holder of valid
and subsisting leasehold interests in the Leased Premises free and clear of
any Liens, other than Permitted Liens, and subject to, in the case of Tower
Leases, the co-location rights of other tenants. Except as set forth on
Section 3.21(b)(ii) of the COMPANY DISCLOSURE SCHEDULE, all lease or rental
payments and other amounts due and payable in connection with the Leased
Premises are current, there are no defaults by the Company or its
Subsidiaries with respect thereto or, to the knowledge of the Company or
its Subsidiaries, by any other party thereto and no event has occurred that
with the passing of time or the giving of notice or both would constitute a
default (A) by the Company or its Subsidiaries thereunder or (B) to the
knowledge of the Company or its Subsidiaries, by any other party
thereunder. All options in favor of the Company or its Subsidiaries to
purchase any of the Leased Premises, if any, are in full force and effect
and are described in Section 3.21(b)(ii) of the COMPANY DISCLOSURE
SCHEDULE. Except as set forth on Section 3.21(b)(ii) of the COMPANY
DISCLOSURE SCHEDULE, the Company or its Subsidiaries are in possession of
the Leased Premises and have the right to quiet enjoyment of the Leased
Premises for the full term of the related Real Estate Contract and any
renewal option related thereto. No Real Estate Contract to which the
Company or its Subsidiaries is a party is terminable as a result of the
transactions contemplated herein, and no leasehold or other interest of the
Company or its Subsidiaries in such real property is subject or subordinate
to any Lien, other than Permitted Liens.
(iii) Except as set forth on Section 3.21(b)(iii) of the COMPANY
DISCLOSURE SCHEDULE, with respect to leases or licenses of tower space to
which the Company or any of its Subsidiaries is a party (the "TOWER
LEASES"), (A) to the Company's knowledge, as of the date hereof, there are
no applications, ordinances, petitions, resolutions or other matters
pending before any governmental agency having jurisdiction to act on zoning
changes that would prohibit or make nonconforming the use of any of the
Leased Premises by the Company or any of its Subsidiaries in any material
respect, (B) the Company has good and valid easement rights providing
reasonable access and utilities to and from the Leased Premises under the
Tower Leases, and (C) neither the Company nor any of its Subsidiaries has
voluntarily granted any, nor is any of them a party to any agreement
providing for any easements, conditions, restrictions, reservations, rights
or options that would materially adversely affect the use of any of the
Leased Premises under the Tower Leases for the same purposes and uses as
such Leased Premises have been used by the Company, except for Permitted
Liens in the case of clauses (B) and (C).
(iv) Neither the whole nor any portion of any Real Property or
Leased Premises has been condemned, taken by right of eminent domain,
requisitioned or otherwise taken by any public authority and neither the
Company nor any of its Subsidiaries has received written notice from any
Governmental Entity with power of eminent domain of any pending or
threatened taking by eminent domain, requisition or condemnation.
(v) Except as set forth on Section 3.21(b)(v) of the COMPANY
DISCLOSURE SCHEDULE, the Company and its Subsidiaries have all easements
and rights of ingress and egress necessary for utilities and services and
for all operations of its business in the manner and to the extent
previously conducted by it.
(vi) Except as set forth on Section 3.21(b)(vi) of the COMPANY
DISCLOSURE SCHEDULE, none of the improvements included in the Real Property
or Leased Premises (A) are in violation in any material respect of any
building line or use or occupancy restriction, limitation, condition or
covenant of record or any zoning or building law, code or ordinance or
public utility or other easement or (B) encroaches on the property rights
of any other Person. Each facility located on the Real Property or Leased
Premises currently is served by gas, electricity, water, sewage and waste
disposal and rail and other utilities adequate to operate such facility,
and none of the utility companies serving any such facility has threatened
the Company or its Subsidiaries with any reduction in service.
(vii) Except as set forth on Section 3.21(b)(vii) of the COMPANY
DISCLOSURE SCHEDULE, there are no existing material defaults by the Company
or any of its Subsidiaries under any of the leases described on Section
3.20 of the COMPANY DISCLOSURE SCHEDULE, and no event has occurred that
(whether with or without notice, lapse of time or the happening or
occurrence of any other event) would constitute a material default under
any such lease.
3.22 INSURANCE.
(a) The Company and each of its Subsidiaries maintain insurance
policies on its assets, and upon its business and operations, against loss
or damage, risks, hazards and liabilities of the kinds customarily insured
against by entities similarly situated and engaged in the same or similar
businesses in adequate amounts under valid and enforceable policies (the
"POLICIES") with insurers the Company reasonably believes to be financially
sound and reputable. The premiums due and owing with respect to the
Policies have been paid, premiums not yet due have been adequately accrued
for, and neither the Company nor any of its Subsidiaries has received any
notice of cancellation or of intention not to renew any such Policy, and
the Company and its Subsidiaries are otherwise in compliance in all
material respects with the terms and provisions of such Policies. Section
3.22 of the COMPANY DISCLOSURE SCHEDULE contains a list of the Policies,
copies of which have been provided to Parent and the holder of each of the
Policies, together with a statement of the aggregate amount of all claims
paid out, and pending, under each such policy or arrangement through the
date hereof. Section 3.22 of the COMPANY DISCLOSURE SCHEDULE contains a
list of each other insurance policy or insurance contract relating to the
Company or its Subsidiaries or the business of the Company or its
Subsidiaries pursuant to which the Company or any of its Subsidiaries is or
may hereafter be entitled to assert claims for insurance coverage (the
"PRIOR POLICIES"). The covered Company or Subsidiary has timely pursued all
rights to recover, if any, under the Policies and the Prior Policies.
(b) Subject to Section 7.13, Parent acknowledges that the
Company's insurance coverage and health insurance are provided under
blanket policies covering other affiliates of the Company not included in
the Merger and that such coverages will be terminated with respect to the
Company at Closing. Accordingly, Parent will be responsible for providing
replacement coverage effective at the Closing, provided that the Company's
coverages shall apply with respect to insured events occurring prior to the
Closing.
3.23 EMPLOYEES.
(a) To the knowledge of the Company, no officer, employee or
independent contractor of the Company or any of its Subsidiaries is in
violation of any term of any contract, proprietary information agreement,
noncompetition agreement or any other agreement or any restrictive covenant
or any other common law obligation to a former employer relating to the
right of any such Person to be engaged by the Company or such Subsidiary or
to the use of trade secrets or proprietary information of others (an
"OUTSIDE CONFIDENTIALITY AGREEMENT"). There are no pending, nor to the
knowledge of the Company or its Subsidiaries, threatened, proceedings with
respect to any Outside Confidentiality Agreement. To the knowledge of the
Company, Section 3.23(a) of the COMPANY DISCLOSURE SCHEDULE lists every
Outside Confidentiality Agreement to which the Company's or any of its
Subsidiaries' officers or technical staff are a party.
(b) As of the date hereof, there is no labor strike, dispute,
slowdown, picketing or stoppage pending or, to the knowledge of the Company
and any of its Subsidiaries, threatened against or directly affecting the
Company or any of its Subsidiaries. Except as disclosed in Section 3.23(b)
of the COMPANY DISCLOSURE SCHEDULE, neither the Company nor any of its
Subsidiaries is subject to any collective bargaining agreement. Except as
disclosed in Section 3.23(b) of the COMPANY DISCLOSURE SCHEDULE, no union
representation question exists and, to the knowledge of the Company and its
Subsidiaries, there has been no union organization effort respecting the
employees of the Company and its Subsidiaries. Neither the Company nor any
of its Subsidiaries is delinquent in payments to any of its employees for
any wages, salaries, commissions, bonuses or other direct compensation for
any services performed by them or amounts required to be reimbursed to such
employees. Section 3.23(b) of the COMPANY DISCLOSURE SCHEDULE lists every
retired employee entitled to (i) receive compensation from the Company or
its Subsidiaries or (ii) participate in any Company Plan.
(c) Except as disclosed in Section 3.23(c) of the COMPANY
DISCLOSURE SCHEDULE, there are no employment agreements with any past or
former employees of the Company or its Subsidiaries that provide or create
a right to continued employment or compensation. Except as disclosed in
Section 3.23(c) of the COMPANY DISCLOSURE SCHEDULE, all employees of the
Company and its Subsidiaries are, and have been, employed for an indefinite
period and are, and have been, terminable at will, with or without cause,
and without cost to the Company and its Subsidiaries for severance
obligations, or any other liability, except for payment of accrued salaries
or wages and vacation pay. No employee or former employee has any right to
be rehired by the Company or its Subsidiaries prior to the hiring of a
person not previously employed by the Company or such Subsidiary.
(d) Except as set forth in Section 3.23(d) of the COMPANY
DISCLOSURE SCHEDULE, (i) each of the Company and its Subsidiaries is in
compliance in all material respects with all federal, state and other
applicable laws, domestic or foreign, respecting employment and employment
practices, terms and conditions of employment, wages and hours,
immigration, the payment of social security and similar taxes, occupational
safety and health and plant closing, and has not and is not engaged in any
unfair labor practice; (ii) except as set forth on Section 3.23(d) of the
COMPANY DISCLOSURE SCHEDULE, no unfair labor practice complaint against the
Company or any of its Subsidiaries is pending before the National Labor
Relations Board; (iii) except as set forth on Section 3.23(d) of the
COMPANY DISCLOSURE SCHEDULE, no grievance exists, and no arbitration
proceeding is pending, that arises out of or under any collective
bargaining agreement, and no claim therefore has been asserted; and (iv)
except as set forth on Section 3.23(d) of the COMPANY DISCLOSURE SCHEDULE,
no collective bargaining agreement is currently being negotiated by the
Company or any of its Subsidiaries.
3.24 CUSTOMERS AND SUPPLIERS. Except as set forth in Section 3.24 of
the COMPANY DISCLOSURE SCHEDULE, there has not been any material adverse
change in the business relationship of the Company or any of its
Subsidiaries with any customer who accounted for more than 5% of the
Company's sales (on a consolidated basis) during the period from December
31, 1999 to the date of this Agreement, or any supplier from whom the
Company or any of its Subsidiaries purchased more than 5% of the goods and
services (on a consolidated basis) which it purchased during the same
period. Except as set forth in Section 3.24 of the COMPANY DISCLOSURE
SCHEDULE, since December 31, 1999, no material licensor or licensee of the
Company or any of its Subsidiaries has cancelled or otherwise modified its
relationship with the Company or any of its Subsidiaries.
3.25 STOCKHOLDER VOTE. Except for the affirmative vote of the holders
of at least a majority of the issued and outstanding shares of capital
stock of the Company, which has been obtained, no vote of the stockholders
of the Company or any class thereof, or of the holders of any other
securities of the Company (equity or otherwise), is required by law, the
Charter Documents or otherwise in order for the Company to consummate the
Merger and the other transactions contemplated hereby.
3.26 BUILD-OUT PLAN. Except as set forth in Section 3.26 of the
COMPANY DISCLOSURE SCHEDULE, the Company's build-out plan, which is set
forth in Section 3.26 of the COMPANY DISCLOSURE SCHEDULE, is achievable
using the level of effort currently employed by the Company and will enable
the Company to meet its obligations under the Sprint Agreements. Except as
set forth in Section 3.26 of the COMPANY DISCLOSURE SCHEDULE, to the
knowledge of the Company, the Company is in compliance with the technical
requirements set forth in the Sprint Agreements. Section 3.26 of the
COMPANY DISCLOSURE SCHEDULE sets forth the extent of the Company's progress
in the completion of its build-out and network launch as of the date of
this Agreement. Except as set forth in Section 3.26 of the COMPANY
DISCLOSURE SCHEDULE, as of the date hereof, neither the Company nor any of
its Subsidiaries has violated or failed to meet any deadline or requirement
in the Sprint Agreements, except as has been remedied, waived or modified
prior to the date hereof and previously disclosed to Parent, and the
Company has no reason to believe that future deadlines cannot be met.
3.27 TERMINATION OF AGREEMENTS. All of the agreements listed on
Section 3.27 of the COMPANY DISCLOSURE SCHEDULE (the "LISTED Agreements")
will be terminated as of the Effective Time, and none of the parties to
such agreements will have any further rights or obligations under such
Listed Agreements.
3.28 REORGANIZATION DOCUMENTS.
(a) Each of the Company and any Subsidiary of the Company that is
a party or signatory to any agreement, certificate, amendment, consent and
other document or instrument executed in connection with the Reorganization
(the "REORGANIZATION DOCUMENTS"), including without limitation, those
documents set forth under item 3 of Section 3.9 of the COMPANY DISCLOSURE
SCHEDULE, had full power, corporate or other, and authority to execute and
deliver the Reorganization Documents and to consummate the transactions
contemplated thereby. The execution and delivery by each of the Company and
its Subsidiaries of the Reorganization Documents and the consummation by
each of the Company and its Subsidiaries of the transactions contemplated
thereby were duly and validly approved by all necessary action, corporate
or other, of each of the Company and its Subsidiaries, and no other
proceedings, corporate or other, on the part of any of them were necessary
to approve the Reorganization Documents and to consummate the
Reorganization. Each of the Reorganization Documents was duly and validly
executed and delivered by each of the Company and its Subsidiaries that is
a party thereto, and each of the Reorganization Documents constitutes a
valid and binding obligation of each of the Company and its Subsidiaries
that is a party thereto, enforceable against each such party in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors'
rights generally and limitations on the availability of equitable remedies.
True and correct copies of each of the Reorganization Documents have been
delivered or made available to Parent.
(b) Neither the execution and the delivery of any Reorganization
Document by any of the Company and its Subsidiaries nor the consummation by
any of them of the Reorganization, nor compliance by any of them with any
of the terms or provisions thereof, has or will (i) violate any provision
of Charter Documents of the Company or its Subsidiaries, or (ii) (x)
violate any statute, code, ordinance, rule, regulation, judgment, order,
writ, decree or injunction applicable to the Company or its Subsidiaries or
any of their respective properties or assets, or (y) violate, conflict
with, result in a breach of any provision of or the loss of any benefit
under, constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, result in the termination
of or a right of termination or cancellation under, accelerate the
performance required by, or result in the creation of any Lien upon any of
the respective properties or assets of the Company or its Subsidiaries
under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which the Company or its Subsidiaries is a
party, or by which they or any of their respective properties or assets may
be bound or affected.
(c) All material consents and approvals of, and filings and
registrations with, any Governmental Entity or third party that was
necessary in connection with the execution and delivery by any of the
Company and its Subsidiaries of any Reorganization Document to which it is
a party or the consummation by any of them of the Reorganization has been
obtained or made, as applicable.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PARENT PARTIES
Except as set forth in the PARENT DISCLOSURE SCHEDULE (each
reference contained herein to such PARENT DISCLOSURE SCHEDULE qualifies the
referenced representation and warranty to the extent specified in the
PARENT DISCLOSURE SCHEDULE and such other representations and warranties
contained herein (regardless of whether or not such representation or
warranty contains a reference to such PARENT DISCLOSURE SCHEDULE) to the
extent a matter in such PARENT DISCLOSURE SCHEDULE is disclosed in such a
way as to make it readily apparent on its face that such reference
qualifies such other representation or warranty) of the Parent Parties
attached hereto, the Parent Parties represent and warrant to the Company
and the Stockholders as follows:
4.1 ORGANIZATION. Each of the Parent Parties, and each Subsidiary of
Parent that is a corporation, is duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and has
the corporate power and authority to carry on its business as it is now
being conducted, except where the failure (a) to be so organized, validly
existing or in good standing or (b) to have such power and authority, would
not reasonably be expected to have a Material Adverse Effect on Parent.
Each Subsidiary of Parent that is a partnership or a limited liability
company is duly organized and validly existing under the laws of its
jurisdiction of organization, and each has the power and authority to carry
on its business as it is now being conducted, except where the failure (x)
to be so organized and validly existing or (y) to have such power and
authority, would not reasonably be expected to have a Material Adverse
Effect on Parent. The Parent Parties and each Subsidiary of Parent is
qualified to do business, and is in good standing, in each jurisdiction
where the character of its properties owned or held under lease or the
nature of its activities makes such qualification necessary, except where
the failure to be so qualified or in good standing would not reasonably be
expected to have a Material Adverse Effect on Parent. True and correct
copies of the Charter Documents of Merger Sub are attached hereto as
EXHIBIT C.
4.2 CHARTER DOCUMENTS. True, correct and complete copies of the
Charter Documents, each as amended to date, of the Parent Parties and each
of Parent's Subsidiaries have been delivered or made available to the
Company. The Charter Documents of the Parent Parties and each of Parent's
Subsidiaries are in full force and effect. Neither the Parent Parties nor
any of Parent's Subsidiaries is in violation of any provision of its
Charter Documents.
4.3 CAPITALIZATION.
(a) The authorized capital stock of Parent consists of (i)
290,000,000 shares of Parent Stock, of which 80,846,844 shares were issued
and outstanding as of March 8, 2001, and (ii) 10,000,000 shares of
preferred stock, par value $0.01 per share, of which no shares were issued
and outstanding as of March 8, 2001. In addition, 600,000 shares of Parent
Stock are authorized for issuance under Parent's Employee Stock Purchase
Plan and 13,000,000 shares of Parent Stock are authorized for issuance
under Parent's Amended and Restated Long Term Incentive Plan. All of the
issued and outstanding shares of Parent Stock have been duly authorized and
validly issued, are fully paid and nonassessable and are free and clear of
any preemptive rights. As of March 8, 2001, there were no outstanding
preemptive, conversion or other rights, or other options, warrants or
agreements granted by, issued by or binding upon Parent for the issuance,
sale, purchase, repurchase, redemption, acquisition or other transfer of
its equity securities, other than stock that may be issued pursuant to
stock option plans or agreements described in the Parent SEC Documents. The
shares of Parent Stock to be issued in connection with the Merger will be
duly authorized and validly issued, fully paid and nonassessable and will
be free and clear of any preemptive rights, with no personal liability
attaching to the ownership thereof.
(b) The authorized capital stock of Merger Sub immediately prior
to the Closing will consist of 5,000 shares of Merger Sub Stock and (ii) no
shares of preferred stock. All of the issued and outstanding shares of
Merger Sub Stock will be duly authorized and validly issued, fully paid and
nonassessable and will be free and clear of any preemptive rights. On the
date of this Agreement, there are no outstanding preemptive, conversion or
other rights, or other options, warrants or agreements granted by, issued
by or binding upon, Merger Sub for the issuance, sale, purchase,
repurchase, redemption, acquisition or other transfer of its equity
securities.
4.4 AUTHORITY AND ENFORCEABILITY.
(a) Each of the Parent Parties has the requisite corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by the Parent
Parties of this Agreement, and the consummation by the Parent Parties of
the transactions contemplated hereby, have been duly authorized by each of
their respective Boards of Directors, and, except for the adoption of this
Agreement by the sole stockholder of Merger Sub in accordance with the
DGCL, no other corporate action on the part of the Parent Parties is
necessary to authorize the execution and delivery by the Parent Parties of
this Agreement and the consummation by them of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
the Parent Parties and (assuming due authorization, execution and delivery
by the Company and the Stockholders) constitutes a valid and binding
agreement of the Parent Parties and is enforceable against the Parent
Parties in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and limitations on the availability
of equitable remedies.
(b) Prior to execution and delivery of this Agreement, (i) the
Board of Directors of each of the Parent Parties has approved and declared
advisable this Agreement, the Merger and the other transactions
contemplated hereby and (ii) the Board of Directors of Parent has
determined that the transactions contemplated hereby are fair to and in the
best interests of the holders of Parent Stock.
4.5 COMPLIANCE WITH APPLICABLE LAW. Neither the Parent Parties nor
any of Parent's Subsidiaries is in violation of, in any material respect,
or in default in any material respect under, and no event has occurred that
(with notice or the lapse of time or both) would constitute a violation of
or default under (a) its respective Charter Documents, (b) any applicable
law, rule, regulation, ordinance, order, writ, decree or judgment of any
Governmental Entity (provided that this Section 4.5(b) shall not apply to
any matter to the extent such matter is specifically covered by any other
representation or warranty contained herein referring to a law, rule,
regulation, ordinance, order, writ, decree or judgment of any Governmental
Entity, including without limitation those set forth in this Section 4.5
and in Sections 4.7, 4.8, 4.10 and 4.13) or (c) any loan, guarantee of
indebtedness, credit agreement, note, bond, mortgage, indenture, lease,
agreement, contract, instrument, permit, concession, franchise, right or
license binding upon the Parent Parties or any of Parent's Subsidiaries, or
result in the creation of any Lien upon any of the properties or assets of
the Parent Parties or any of Parent's Subsidiaries, except (in the case of
clause (b) or (c) above) for any violation or default that would not,
individually or in the aggregate, have a Material Adverse Effect on Parent.
Each of the Parent Parties and Parent's Subsidiaries has obtained and holds
all permits, licenses, variances, exemptions, orders, franchises, approvals
and authorizations of all Governmental Entities necessary for the lawful
conduct of its business and the lawful ownership, use and operation of its
assets ("PARENT PERMITS"), except for Parent Permits which the failure to
obtain or hold would not, individually or in the aggregate, have a Material
Adverse Effect on Parent. Each of the Parent Parties is in compliance with
the terms of its Parent Permits, except where the failure to comply would
not, individually or in the aggregate, have a Material Adverse Effect on
Parent. No investigation or review by any Governmental Entity with respect
to the Parent Parties is pending or, to the knowledge of Parent,
threatened, other than those the outcome of which would not, individually
or in the aggregate, have a Material Adverse Effect on Parent.
4.6 NO CONFLICT. Except as disclosed in Section 4.6 of the PARENT
DISCLOSURE SCHEDULE, the execution and delivery by the Parent Parties of
this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof will not (a)
conflict with or result in any violation of any provision of the Charter
Documents, in each case as amended, of the Parent Parties or any of
Parent's Subsidiaries, or (b) assuming that the consents and approvals
referred to in Section 4.7 are obtained (i) result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or acceleration of any
obligation or to the loss of a material benefit under, any loan, guarantee
of indebtedness, credit agreement, note, bond, mortgage, indenture, lease,
agreement, contract, instrument, permit, concession, franchise, right or
license binding upon the Parent Parties or any of Parent's Subsidiaries, or
result in the creation of any Lien upon any of the properties or assets of
the Parent Parties or any of Parent's Subsidiaries, or (ii) conflict with
or violate any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Parent Parties or any of Parent's Subsidiaries
or any of their respective properties or assets, other than, in the case of
clause (b), any such right of termination, cancellation or acceleration,
violation, conflict, default, right, loss or Lien that, individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect on Parent.
4.7 GOVERNMENT APPROVALS; REQUIRED CONSENTS. No filing or
registration with, or authorization, consent or approval of, any
Governmental Entity or other Person is required by or with respect to the
Parent Parties or any of Parent's Subsidiaries in connection with the
execution and delivery of this Agreement by the Parent Parties or is
necessary for the consummation of the transactions contemplated hereby
(including, without limitation, the Merger) except (a) the filing of a
notification under the HSR Act, (b) the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware, (c) such consents,
approvals, authorizations, permits, filings and notifications listed in
Section 4.7 of the PARENT DISCLOSURE SCHEDULE, (d) filings required in
connection with Parent Permits, (e) in connection, or in compliance, with
the provisions of federal, state, local and foreign tax law, (f) in
connection, or in compliance, with the provisions of the Securities Act,
the Exchange Act and any applicable state securities or "blue sky" law, (g)
filing required by the Nasdaq Stock Market, (h) the approval and adoption
of this Agreement by the sole stockholder of Merger Sub, (i) the grant of
applications by the FCC and (j) such other consents, orders,
authorizations, registrations, declarations and filings the failure of
which to obtain or make would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on Parent.
4.8 SEC DOCUMENTS AND OTHER REPORTS. Each of Parent and its
Subsidiaries has filed all documents required to be filed prior to the date
hereof by it and its Subsidiaries with the SEC since February 8, 2000 (the
"PARENT SEC DOCUMENTS"). As of their respective dates, or if amended as of
the date of the last such amendment, the Parent SEC Documents complied, and
all documents required to be filed by Parent with the SEC after the date
hereof and prior to the Effective Time ("SUBSEQUENT PARENT SEC DOCUMENTS")
will comply, in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the applicable
rules and regulations promulgated thereunder and none of the Parent SEC
Documents contained, and the Subsequent Parent SEC Documents will not
contain, any untrue statement of a material fact or omitted, or will omit,
to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, or are to be made, not misleading. The consolidated financial
statements (including related notes) of Parent included in the Parent SEC
Documents fairly present in all material respects, and the consolidated
financial statements (including related notes) of Parent included in the
Subsequent Parent SEC Documents will fairly present in all material
respects, the consolidated financial position of Parent and its
consolidated Subsidiaries, as at the respective dates thereof and the
consolidated results of their operations and their consolidated cash flows
for the respective periods then ended (subject, in the case of the
unaudited statements, to normal year-end audit adjustments and to any other
adjustments described therein and the fact that certain information and
notes have been condensed or omitted in accordance with the Exchange Act
and the rules and regulations promulgated thereunder) in conformity with
GAAP (except in the case of the unaudited statements) applied on a
consistent basis during the periods involved (except as may be indicated
therein or in the notes thereto). Since September 30, 2000, Parent has not
made any change in the accounting practices or policies applied in the
preparation of its financial statements, except as may be required by GAAP.
4.9 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth in
Section 4.9 of the PARENT DISCLOSURE SCHEDULE, since September 30, 2000,
and up to and including the date of this Agreement, Parent and its
Subsidiaries have conducted their respective businesses and operations in
all material respects in the ordinary and usual course consistent with past
practice and there has not occurred (a) through the date hereof, any change
in the business, condition (financial or otherwise) or the results of
operations of Parent and its Subsidiaries that has caused a Material
Adverse Effect on Parent, (b) any declaration, setting aside or payment of
any dividend or distributions of any kind by Parent on any class of its
capital stock, (c) any material change by Parent or its Subsidiaries in
accounting methods, principles or practices except as required by GAAP, or
(d) any material change in financial or tax accounting methods, principles
or practices by Parent or any Subsidiary, except insofar as may have been
required by the Code.
4.10 EMPLOYEE BENEFIT PLANS; ERISA. Except as described in any of the
Parent SEC Documents, as of the date hereof all "employee benefit plans" as
defined in Section 3(3) of ERISA, maintained or contributed to by Parent,
its Subsidiaries or any entity which is part of a "controlled group" under
"common control" with Parent or its Subsidiaries (within the meaning of
Section 414(b), (c) or (m) of the Code) are in material compliance with
their terms and all applicable provisions of ERISA, the Code and any other
applicable law, and Parent, its Subsidiaries and any entity which is part
of a "controlled group" under "common control" with Parent or its
Subsidiaries (within the meaning of Section 414(b), (c) or (m) of the Code)
do not have any liabilities or obligations with respect to any such
employee benefit plans, whether or not accrued, contingent or otherwise,
except (a) that are accrued or reserved against in the latest financial
statements contained in the Parent SEC Documents and (b) for instances of
noncompliance or liabilities or obligations that would not in the aggregate
have a Material Adverse Effect on Parent.
4.11 LACK OF OWNERSHIP OF COMPANY COMMON STOCK. Neither Parent nor
any of its Subsidiaries owns any shares of Company Common Stock or other
securities convertible into shares of Company Common Stock.
4.12 ABSENCE OF UNDISCLOSED LIABILITIES. As of the date hereof,
neither Parent nor any of its Subsidiaries has any liabilities or
obligations (whether absolute, accrued, known or unknown, contingent or
otherwise), other than (a) liabilities or obligations incurred in the
ordinary course of business since September 30, 2000, (b) liabilities or
obligations that are accrued or reserved against in the latest financial
statements contained in the Parent SEC Documents and (c) liabilities or
obligations that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on Parent.
4.13 ACTIONS AND PROCEEDINGS. Except as described in any of the
Parent SEC Documents, there are no outstanding orders, judgments,
injunctions, awards or decrees of any Governmental Entity against Parent or
any of its Subsidiaries, any of their properties, assets or business, or,
to the knowledge of Parent, any of Parent's or its Subsidiaries' current or
former directors or officers or any other person whom Parent or any of its
Subsidiaries has agreed to indemnify, as such, other than those that would
not reasonably be expected to have a Material Adverse Effect on Parent.
Except as described in any of the Parent SEC Documents, there are no
actions, suits or legal, administrative, regulatory or arbitration
proceedings pending or, to the knowledge of Parent, threatened against
Parent or any of its Subsidiaries, any of their properties, assets or
business, or, to the knowledge of Parent, any of Parent's or its
Subsidiaries' current or former directors or officers or any other person
whom Parent or any of its Subsidiaries has agreed to indemnify, as such,
that individually or in the aggregate are reasonably likely to have a
Material Adverse Effect on Parent and, to the knowledge of Parent, no event
has occurred, and no state of facts exists, that are reasonably likely to
result in any such action, suit or proceeding.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
AS TO ITSELF
Except as set forth in each STOCKHOLDER DISCLOSURE SCHEDULE (each
reference contained herein to such STOCKHOLDER DISCLOSURE SCHEDULE
qualifies the referenced representation and warranty to the extent
specified in the STOCKHOLDER DISCLOSURE SCHEDULE and such other
representations and warranties contained herein (regardless of whether or
not such representation or warranty contains a reference to such
STOCKHOLDER DISCLOSURE SCHEDULE) to the extent a matter in such STOCKHOLDER
DISCLOSURE SCHEDULE is disclosed in such a way as to make it readily
apparent on its face that such reference qualifies such other
representation or warranty) of each Stockholder attached hereto, each
Stockholder, individually for itself and not jointly, represents and
warrants to the Parent Parties as follows:
5.1 ORGANIZATION. Such Stockholder is an individual or a corporation,
a partnership or a limited liability company duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and has the power and authority to carry on its business as
it is now being conducted, except where the failure (a) to be so organized
and validly existing or (b) to have such power and authority, would not
reasonably be expected to have an adverse effect on the validity or
enforceability of this Agreement against such Stockholder or such
Stockholder's ability to perform its obligations under this Agreement.
5.2 AUTHORITY AND ENFORCEABILITY. Such Stockholder has the requisite
power and authority to execute and deliver this Agreement and any agreement
to be executed pursuant hereto (including the Release contemplated by
Section 8.2(e) hereof) and to consummate the transactions contemplated
hereby and thereby. The execution and delivery by such Stockholder of this
Agreement and any agreement to be executed pursuant hereto (including the
Release contemplated by Section 8.2(e) hereof), and the consummation by
such Stockholder of the transactions contemplated hereby and thereby, have
been duly authorized by all requisite corporate or limited liability
company action and no other corporate or limited liability company action
on the part of such Stockholder is necessary to authorize the execution and
delivery by such Stockholder of this Agreement and any agreement to be
executed pursuant hereto (including the Release contemplated by Section
8.2(e) hereof) and the consummation by it of the transactions contemplated
hereby and thereby. This Agreement and any agreement to be executed
pursuant hereto (including the Release contemplated by Section 8.2(e)
hereof) has been, or, if to be executed after the date hereof pursuant to
the terms of this Agreement, will be duly executed and delivered by such
Stockholder and constitutes a valid and binding agreement of such
Stockholder and is enforceable against such Stockholder in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors'
rights generally and limitations on the availability of equitable remedies.
5.3 STOCK OWNERSHIP. Such Stockholder is the record and beneficial
owner of the shares of Company Common Stock set forth opposite such
Stockholder's name in Section 5.3 of such Stockholder's STOCKHOLDER
DISCLOSURE SCHEDULE (with respect to each Stockholder, such Stockholder's
"Shares"), with full power to vote or direct the voting of such Shares, and
will be the record and beneficial owner of such Shares immediately prior to
the Closing, free and clear of all Liens, other than Liens set forth in
Section 5.3 of such STOCKHOLDER DISCLOSURE SCHEDULE, all of which Liens
will be released and discharged as of the Closing.
5.4 ACTIONS AND PROCEEDINGS. As of the date hereof, there are no
outstanding orders, judgments, injunctions, awards or decrees of any
Governmental Entity against such Stockholder or any of its Subsidiaries,
any of their properties, assets or business, or, to the knowledge of such
Stockholder, any of such Stockholder's or its Subsidiaries' current or
former directors or officers or any other person whom such Stockholder or
any of its Subsidiaries has agreed to indemnify, as such, other than those
that would not reasonably be expected to have an adverse effect on the
validity or enforceability of this Agreement against such Stockholder or
such Stockholder's ability to perform its obligations under this Agreement.
5.5 NO CONFLICT. Except as disclosed in Section 5.5 of such
STOCKHOLDER DISCLOSURE SCHEDULE, the execution and delivery by such
Stockholder of this Agreement and any agreement to be executed pursuant
hereto (including the Release contemplated by Section 8.2(e) hereof) do
not, and the consummation of the transactions contemplated hereby and
thereby and compliance with the provisions hereof will not, (a) result in
any violation of, or default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a material benefit under,
any loan, guarantee of indebtedness, credit agreement, note, bond,
mortgage, indenture, lease, agreement, contract, instrument, permit,
concession, franchise, right or license binding upon such Stockholder or
any of such Stockholder's Subsidiaries, or result in the creation of any
Lien upon any of the properties or assets of such Stockholder or any of
such Stockholder's Subsidiaries, (b) conflict with or result in any
violation of any provision of the Charter Documents, in each case as
amended, of such Stockholder or any of such Stockholder's Subsidiaries, or
(c) conflict with or violate any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to such Stockholder or any of such
Stockholder's Subsidiaries or any of their respective properties or assets,
other than, in the case of clauses (a) and (c), any such right of
termination, cancellation or acceleration, violation, conflict, default,
right, loss or Lien that, individually or in the aggregate, would not
reasonably be expected to have an adverse effect on the validity or
enforceability of this Agreement against such Stockholder or its ability to
perform its obligations under this Agreement
5.6 GOVERNMENT APPROVALS; REQUIRED CONSENTS. No filing or
registration with, or authorization, consent or approval of, any
Governmental Entity or other Person is required by or with respect to such
Stockholder or any of such Stockholder's Subsidiaries in connection with
the execution and delivery of this Agreement and any agreement to be
executed pursuant hereto (including the Release contemplated by Section
8.2(e) hereof) by such Stockholder or is necessary for the consummation of
the transactions contemplated hereby (including, without limitation, the
Merger) except: (a) the filing by Parent of a notification under the HSR
Act, (b) the filing of the Certificates of Merger with the Secretary of
State of the State of Delaware, (c) such consents, approvals,
authorizations, permits, filings and notifications listed in Section 5.6 of
such STOCKHOLDER DISCLOSURE SCHEDULE, (d) in connection, or in compliance,
with the provisions of federal, state, local and foreign tax law and (e)
such other consents, orders, authorizations, registrations, declarations
and filings the failure of which to obtain or make would not, individually
or in the aggregate, reasonably be expected to have an adverse effect on
the validity or enforceability of this Agreement against such Stockholder
or such Stockholder's ability to perform its obligations under this
Agreement.
5.7 INVESTMENT REPRESENTATIONS.
(a) Such Stockholder understands and acknowledges that the Parent
Stock is being offered and sold under the exemptions from registration
provided for in Section 4(2) of the Securities Act, including Regulation D
promulgated thereunder, and that Parent's reliance upon such exemption is
based in part upon the Stockholders' representations, warranties and
agreements contained in this Agreement.
(b) Such Stockholder has carefully read this Agreement and, to the
extent believed necessary, has discussed the representations, warranties
and agreements which the Stockholder makes by signing it and the applicable
limitations upon such Stockholder's resale of the shares of Parent Stock
with such Stockholder's counsel.
(c) The Parent Stock to be issued to such Stockholder in the
Merger is being acquired by such Stockholder solely for its own account,
for investment purposes only, and is not being acquired for resale,
resyndication, distribution, subdivision of fractionalization thereof,
except pursuant to an effective registration under the Securities Act or in
a transaction exempt from registration under the Securities Act, and such
Stockholder has no current plan or intention to distribute such Parent
Stock. Such Stockholder has no contract or arrangement with any person to
sell, transfer or pledge to any person the shares of Parent Stock or any
part thereof, any interest therein or any rights thereto, and such
Stockholder has no present plan or intention to enter into any such
contract or arrangement.
(d) Such Stockholder understands that it may not sell or otherwise
transfer its shares of Parent Stock unless such sale or other transfer is
registered under the Securities Act and the applicable state securities
laws or unless the sale or other transfer is exempt from the registration
requirements under the Securities Act and such other securities laws, and
that, as a result, such Stockholder must bear the economic risk of the
investment for an indefinite period of time. Such Stockholder understands
that Parent may require it to furnish an opinion of counsel satisfactory to
Parent that such sale or transfer is so exempt.
(e) Such Stockholder is able (i) to bear the economic risk of an
investment in Parent Stock indefinitely, (ii) to hold the shares of Parent
Stock indefinitely, and (iii) to afford a complete loss of this investment.
Such Stockholder has adequate means of providing for current needs and has
no present need for liquidity in this investment.
(f) Such Stockholder is an "accredited investor" as that term is
defined under Rule 501(a) of Regulation D, as amended, under the Securities
Act and possesses such knowledge and experience in financial and business
matters so that it is capable of evaluating the merits and risks of an
investment in Parent Stock, and of making an informed investment decision.
(g) Such Stockholder confirms that, in making the decision to
acquire the shares of Parent Stock in the Merger, it has relied solely upon
independent investigations made by it and/or by its representatives,
including its own professional tax and other advisors and that it and such
representatives and advisors have been given the opportunity to ask
questions of, and to receive answers from, Parent concerning this Agreement
and the terms and conditions of the Merger, and to obtain any information
requested by such Stockholder concerning Parent from such person, to the
extent such persons possessed such information or could acquire it without
unreasonable effort or expense, necessary for such Stockholder to make an
informed investment in Parent Stock
5.8 WAIVER OF RIGHTS. As of the Effective Time, with respect to such
Stockholder, all existing options, warrants, call rights, put rights,
pre-emptive rights, subscription rights, registration rights, consent
rights, special voting rights or other rights of any character arising
under any of the Charter Documents of the Company or any of its
Subsidiaries or under any of the Listed Agreements will be terminated in
full.
5.9 NO CLAIMS. Such Stockholder is not aware of the existence of any
fact, circumstance or event that would provide the basis for any claim by
such Stockholder that the Company or any of its Subsidiaries has authorized
or entered into any contract, agreement or arrangement or otherwise engaged
in any transaction (a) in violation of any of its Charter Documents, or
without obtaining any vote, approval or consent required thereunder, (b) in
violation of any of the Listed Agreements, or without obtaining any vote,
approval or consent of any Stockholder or any other party thereto (or any
group comprised of one or more of them) required thereunder, or (c) that
would trigger or accelerate any rights of any Stockholder or any other
party thereto under any of the Listed Agreements, in each case except to
the extent any of the foregoing has been validly approved or waived prior
to the date hereof.
5.10 REORGANIZATION DOCUMENTS.
(a) Such Stockholder, to the extent that it is a party or
signatory to any Reorganization Documents, including, including without
limitation, those documents set forth under item 3 of Section 3.9 of the
COMPANY DISCLOSURE SCHEDULE, had full power, corporate or other, and
authority to execute and deliver the Reorganization Documents and to
consummate the transactions contemplated thereby. The execution and
delivery by such Stockholder of the Reorganization Documents and the
consummation by such Stockholder of the transactions contemplated thereby
were duly and validly approved by all necessary action, corporate or other,
of such Stockholder, and no other proceedings, corporate or other, on the
part of it were necessary to approve the Reorganization Documents and to
consummate the Reorganization. Each of the Reorganization Documents was
duly and validly executed and delivered by such Stockholder to the extent
that it is a party thereto, and each of the Reorganization Documents
constitutes a valid and binding obligation of such Stockholder to the
extent that it is a party thereto, enforceable against such Stockholder in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and limitations on the availability of
equitable remedies.
(b) Neither the execution and the delivery of any Reorganization
Document by such Stockholder nor the consummation by such Stockholder of
the Reorganization, nor compliance by such Stockholder with any of the
terms or provisions thereof, has or will violate any provision of any of
the Charter Documents of such Stockholder.
5.11 CHICKASAW REPRESENTATIONS.
(a) Chickasaw represents and warrants to Parent that the equipment
set forth in Schedule No. 0001, dated December 31, 1998, to the Master
Lease Agreement, dated December 31, 1998, by and between General Electric
Capital Corporation and Chickasaw, and the assets leased to the Company
pursuant to the Master Servicing Agreement, dated as of June 1, 2000, by
and among Southwest PCS Holdings, Inc. and Chickasaw, constitute all the
assets owned or leased by Chickasaw or any of its Affiliates which the
Company or any of its Subsidiaries uses and requires for the normal
operation of its business as they are currently conducted.
(b) Chickasaw represents and warrants to Parent that it is the
record and beneficial owner of all the outstanding equity interests of
Southwest PCS, L.L.C. ("SPCS LLC") and Indian Nations Fiberoptics, Inc.,
with full power to vote or direct the voting of such equity interests, and
will be the record and beneficial owner of such equity interests
immediately prior to the Closing.
ARTICLE 6
CONDUCT OF BUSINESS PENDING THE CLOSING
6.1 CONDUCT OF BUSINESS BY THE COMPANY PENDING THE CLOSING. Prior to
the Effective Time, unless Parent shall otherwise agree in writing or as
set forth in Section 6.1 of the COMPANY DISCLOSURE SCHEDULE, or as
otherwise contemplated herein, the Company shall conduct, and cause each of
its Subsidiaries to conduct, its business only in the ordinary and usual
course consistent with past practice, and the Company shall use, and cause
each of its Subsidiaries to use, its reasonable best efforts to preserve
intact the present business organization, keep available the services of
its present officers and employees, and preserve for itself and Parent
their existing business relationships. Without limiting the generality of
the foregoing, unless Parent shall otherwise agree in writing (which
agreement will not be unreasonably withheld), and except as otherwise set
forth herein or as set forth in Section 6.1 of the COMPANY DISCLOSURE
SCHEDULE, prior to the Effective Time, the Company shall not, nor shall it
permit any of its Subsidiaries to:
(a) (i) amend its Charter Documents, (ii) split, combine or
reclassify any shares of its outstanding capital stock, (iii) other than
dividends from one Subsidiary to another Subsidiary or to the Company,
declare, set aside or pay any dividend or other distribution payable in
cash, stock or property, or (iv) directly or indirectly redeem or otherwise
acquire any shares of its capital stock or capital stock of any of its
Subsidiaries;
(b) authorize for issuance, issue, deliver, sell, pledge, dispose
of, encumber or grant any Lien on, or authorize or propose the issuance,
delivery, sale, pledge, disposition of, encumbrance or grant of any Lien
on, any shares of its capital stock or capital stock of any of its
Subsidiaries, or other voting securities or any securities convertible into
or exercisable for, or any rights, warrants or options to acquire, any such
securities or voting securities or any other ownership interest (or
interest the value of which is derived by reference to any of the
foregoing), or enter into any agreement with respect to any of the
foregoing;
(c) acquire or agree to acquire by merging or consolidating with,
or by purchasing a substantial equity interest in or a substantial portion
of the assets of, or by any other manner, any business or any corporation,
partnership, association or other business organization or division thereof
or otherwise acquire or agree to acquire any assets which would be
material, individually or in the aggregate, to the Company; provided,
however, that the foregoing shall not prohibit the creation of new
Subsidiaries of the Company organized to conduct or continue activities
otherwise permitted by this Agreement;
(d) other than (i) dispositions required to be made pursuant to an
agreement or contract to which the Company or any of its Subsidiaries is a
party or by which it is bound as of the date of this Agreement and which
has been disclosed to Parent, and (ii) dispositions of inventory and excess
or obsolete assets in the ordinary course of business consistent with past
practice, sell, lease, encumber, license or otherwise dispose of, or agree
to sell, lease, encumber, license or otherwise dispose of, any of its
assets, properties or other rights;
(e) (i) make any loans, advances or capital contributions to, or
investments in (other than acquisitions permitted by Section 6.1(c)), any
other Person, other than (A) by the Company or a Subsidiary of the Company
to or in the Company or any direct or indirect wholly-owned Subsidiary of
the Company, or (B) pursuant to and in accordance with the terms of any
contract or other legal obligation of the Company or any of its
Subsidiaries existing at the date of this Agreement and set forth in
Section 6.1(e) of the COMPANY DISCLOSURE SCHEDULE, or (ii) create, incur,
assume or suffer to exist any indebtedness, issuances of debt securities,
guarantees, loans, advances or other non-equity securities not in existence
as of the date of this Agreement except (A) pursuant to the credit
facilities, indentures and other arrangements in existence on the date of
this Agreement, as set forth in Section 6.1(e) of the COMPANY DISCLOSURE
SCHEDULE or (B) for short-term borrowings (1) incurred in the ordinary
course of business consistent with past practice or (2) the proceeds of
which are used to refund existing or maturing indebtedness or fund any
acquisition transaction permitted by Section 6.1(c) or (C) intercompany
indebtedness between the Company and any of its wholly-owned Subsidiaries
or between such wholly-owned Subsidiaries;
(f) pay, satisfy, discharge or settle any material claim,
liabilities or obligations (absolute, accrued, contingent or otherwise),
other than in the ordinary course of business and consistent with past
practice or pursuant to mandatory terms of any contract in effect on the
date hereof;
(g) modify or amend, or waive any benefit of, any non-competition
agreement to which the Company or any of its Subsidiaries is a party;
(h) enter into any new line of business, or incur or commit to any
capital expenditures other than capital expenditures incurred or committed
to in the ordinary course of business consistent with past practice;
(i) voluntarily permit any insurance policy naming the Company or
any Subsidiary of the Company as a beneficiary or a loss payee to be
canceled or terminated other than in the ordinary course of business;
(j) (i) adopt, commit to adopt, enter into, terminate or amend
(except as may be required by applicable law or by any existing Material
Contracts) any Benefit Plan (ii) except as required by existing contracts
or in the ordinary course of business consistent with past practice and
quantum, increase or commit or agree to increase in any manner the
compensation or fringe benefits of, or pay any bonus to, any director,
officer or employee, (iii) take any action to fund or in any other way
secure, or to accelerate or otherwise remove restrictions with respect to,
the payment of compensation or benefits under any employee plan, agreement,
contract, arrangement or other Company Plan, or (iv) make or agree to make
any contribution, other than regularly scheduled contributions, to any
Company Plan, except as required by law;
(k) (i) make any change in its accounting or tax policies or
procedures in effect at December 31, 2000, except as required by applicable
law or to comply with GAAP, or (ii) change its fiscal year.
(l) take any action with knowledge that such action could
reasonably be expected to result in any of the conditions to the Merger set
forth in Article 8 not being satisfied;
(m) enter into, implement, or otherwise become subject to or bound
by any new agreement, arrangement, commitment or program which provides for
severance, golden parachute, unemployment, stay-pay, change of control or
similar payments, or amend any existing agreement, arrangement, commitment
or program which provides for such payments;
(n) incur expenses, other than expenditures incurred in connection
with the Reorganization and Merger, not in the ordinary and usual course
consistent with past practice;
(o) make any loans to any of its officers, directors, employees,
Affiliates, agents or consultants or make any change in its existing
borrowing or lending arrangements for or on behalf of any such Persons,
whether pursuant to an employee benefit plan or otherwise; provided,
however, that the Company may, in the ordinary course of its business in
accordance with past practice, advance funds for business expenses to any
of its officers, directors, employees, Affiliates, agents or consultants.
(p) create, renew, amend or terminate or give notice of a proposed
renewal, amendment or termination of, any Material Contract;
(q) enter into or amend in any material manner any contract,
agreement or arrangement with any officer, director, employee, consultant
or Stockholder of the company or any of its Subsidiaries or with any
Affiliate or Associate of any of the foregoing;
(r) make any material election relating to Taxes, change any
material election relating to Taxes already made, adopt any new accounting
method relating to Taxes, change any accounting method relating to Taxes
unless required by GAAP, enter into any closing agreement relating to
Taxes, settle any claim or assessment relating to Taxes or consent to any
claim or assessment relating to Taxes or any waiver of the statute of
limitations for any such claim or assessment; or
(s) authorize any of, or commit, resolve or agree to take any of,
the actions prohibited by paragraphs (a) though (r) of this Section 6.1.
6.2 CONDUCT OF BUSINESS BY PARENT PENDING THE CLOSING. Except as set
forth in Section 6.2 of the PARENT DISCLOSURE SCHEDULE or as specifically
permitted by any other provision of this Agreement, Parent shall not and
shall cause each of its Subsidiaries not to (unless required by applicable
law or regulations of the Nasdaq Stock Market), between the date of this
Agreement and the Effective Time, directly or indirectly, do, or agree to
do, any of the following, without the prior written consent of the Company,
which consent will not be unreasonably withheld:
(a) amend or otherwise change Parent's Charter Documents in a manner
that adversely affects the rights of holders of Parent Stock, except as
contemplated by Section 7.16(b) hereof;
(b) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with respect
to any Parent Stock;
(c) make any change in accounting policies or procedures in effect on
September 30, 2000, other than in the ordinary course of business
consistent with past practice or except as required by GAAP or a
Governmental Entity; or
(d) take any action with knowledge that such action could reasonably
be expected to result in any of the conditions to the Merger set forth in
Article 8 not being satisfied.
ARTICLE 7
ADDITIONAL AGREEMENTS
7.1 ACCESS AND INFORMATION; CONFIDENTIALITY.
(a) Prior to the Closing, the Company shall (and shall cause its
Subsidiaries and its and their respective officers, directors, employees,
auditors and agents to) afford to Parent and to Parent's officers,
employees, financial advisors, legal counsel, accountants, consultants and
other representatives (except to the extent not permitted under applicable
law as advised by counsel) reasonable access during normal business hours
throughout the period prior to the Effective Time to all of its books and
records and its properties, facilities and personnel. Parent shall (and
shall cause its Subsidiaries and its and their respective officers,
directors, employees, auditors and agents to) afford to the Company and to
the Company's officers, employees, financial advisors, legal counsel,
accountants, consultants and other representatives (except to the extent
not permitted under applicable law as advised by counsel) reasonable
access, during normal business hours throughout the period prior to the
Effective Time to such information regarding Parent and its Subsidiaries as
shall be reasonably necessary for the Company to confirm that the
representations and warranties of Parent contained herein are true and
correct in all material respects. Neither the Company nor Parent shall be
required to provide access to or to disclose information where such access
or disclosure would violate or prejudice the rights of such party's
customers, jeopardize any attorney-client privilege or contravene any law,
rule, regulation, order, judgment, decree or binding agreement entered into
prior to the date of this Agreement. The parties hereto will make
appropriate substitute disclosure arrangements under circumstances in which
the restrictions of the preceding sentence apply.
(b) Parent and the Company acknowledge and agree that, except to
the extent that the terms of such are inconsistent with Section 7.1(a), the
Confidentiality Agreement dated February 16, 2001, between the Company and
Parent, and the Confidentiality Agreement dated February 23, 2001, between
the Company and Parent (such agreements referred to herein as the
"CONFIDENTIALITY AGREEMENTS") are in full force and effect as of the date
hereof.
7.2 APPOINTMENT OF STOCKHOLDER REPRESENTATIVE. By the execution and
delivery of this Agreement, each Stockholder hereby irrevocably constitutes
and appoints Chickasaw as the true and lawful agent (the "STOCKHOLDER
REPRESENTATIVE") of such Stockholder for purposes of receiving a notice of
a claim indemnification under Section 10.2 hereof. Such notice shall be
provided as set forth in Section 11.3 hereof. By the execution of this
Agreement, Chickasaw has accepted its appointment as Stockholder
Representative.
7.3 ADDITIONAL REPORTS AND INFORMATION. Prior to the Closing, the
Company shall deliver to Parent (i) as soon as practicable, but in no event
later than the 30th day after each month ending on or after the date of
this Agreement, consolidated financial statements for the Company and its
Subsidiaries for such month and (ii) as soon as practicable, but in no
event later than the 30th day after each quarterly accounting period ending
on or after the date of this Agreement, consolidated financial statements
of the Company and its Subsidiaries for such quarterly period.
7.4 LEGENDS. Each of the Stockholders consents to the placement of a
legend on the shares of Parent Stock to be issued to such Stockholder in
the Merger, which legend shall be substantially as follows:
THESE SECURITIES ARE NOT REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE DISTRIBUTED FOR VALUE, NOR MAY THESE
SECURITIES BE TRANSFERRED ON THE BOOKS OF ALAMOSA HOLDINGS, INC.,
IN THE ABSENCE OF SUCH REGISTRATION UNLESS ALAMOSA HOLDINGS, INC.
HAS RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE, SATISFACTORY
TO ALAMOSA HOLDINGS, INC. AND ITS COUNSEL, THAT SUCH REGISTRATION
IS NOT REQUIRED.
7.5 OTHER AGREEMENTS.
(a) From the date hereof until the Effective Time, each
Stockholder agrees not to (i) transfer, sell, exchange, pledge or otherwise
dispose of or encumber any of its shares of Company Common Stock or enter
into any agreement to do any of the foregoing, or (ii) exercise any right
that it may have to require the Company or any other Stockholder or other
Person to (x) redeem or purchase any of its shares of Company Common Stock
other than as contemplated by this Agreement or (y) register, except as
contemplated by this Agreement and the Registration Rights Agreement, any
of its shares of Company Common Stock under the Securities Act.
(b) From and after the Effective Time, each Stockholder agrees
that all of its respective rights with respect to its respective shares of
Company Common Stock arising under each of the Listed Agreements shall
terminate and be of no further force and effect. Each Stockholder agrees
that on or prior to the Closing Date it will execute all such documents as
Parent shall reasonably request in order to terminate all of the Listed
Agreements and all of such Stockholder's rights thereunder.
7.6 OTHER ACTIONS.
(a) Subject to the terms and conditions herein provided and
applicable legal requirements, each of the parties hereto agrees to use its
reasonable best efforts to take, or cause to be taken, all action, and to
do, or cause to be done, and to assist and cooperate with the other parties
hereto in doing, as promptly as practicable, all things necessary, proper
or advisable under applicable laws and regulations to ensure that the
conditions set forth in Article 8 are satisfied and to consummate and make
effective the transactions contemplated by this Agreement.
(b) Each of the parties shall use its reasonable best efforts to
obtain as promptly as practicable all consents, waivers, approvals,
authorizations or permits of, or registration or filing with or
notification to (any of the foregoing being a "CONSENT"), any Governmental
Entity (including the filing of such applications with the FCC as may be
necessary to satisfy the condition set forth in Section 8.2(j)) or any
other Person required in connection with, and waivers of any violations,
defaults or breaches that may be caused by, the consummation of the
transactions contemplated by this Agreement by such party.
(c) Each party hereto shall promptly inform the other of any
material communication from the SEC, the United States Federal Trade
Commission ("FTC"), the United States Department of Justice ("DOJ") or any
other Governmental Entity regarding any of the transactions contemplated by
this Agreement. If any party hereto or any Affiliate thereof receives a
request for additional information or documentary material from any such
Governmental Entity with respect to the transactions contemplated by this
Agreement, then such party shall use commercially reasonable efforts to
cause to be made, as soon as reasonably practicable and after consultation
with the other party, an appropriate response in compliance with such
request.
(d) Without limiting the generality of the foregoing, each of
Parent and the Company will use its reasonable best efforts to obtain all
authorizations or waivers required under the HSR Act to consummate the
transactions contemplated hereby, including, without limitation, making all
filings with the Antitrust Division of the DOJ and the FTC required in
connection therewith (the initial filing with DOJ and FTC to occur no later
than five (5) business days following the execution and delivery of this
Agreement unless mutually agreed otherwise) and responding as promptly as
practicable to all inquiries received from the DOJ or the FTC for
additional information or documentation. Each of Parent and the Company
shall furnish to the other such necessary information and reasonable
assistance as the other may request in connection with its preparation of
any filing or submission which is necessary under the HSR Act. Parent and
the Company shall keep each other apprised of the status of any
communications with, and any inquiries or requests for additional
information from, the FTC or the DOJ. In the event a suit is threatened or
instituted challenging the Merger as violative of the HSR Act, the Xxxxxxx
Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission
Act, as amended, or any other federal, state or foreign law or regulation
or decree designed to prohibit, restrict or regulate actions for the
purpose or effect of monopolization or restraint of trade (collectively,
"ANTITRUST LAWS"), each party hereto shall use its reasonable best efforts
to avoid the filing of or resist or resolve such suit. Each of Parent and
the Company shall use its reasonable best efforts to take such action as
may be required in order to obtain clearance under the HSR Act in order to
consummate the Merger prior to the Termination Date. Parent shall be
entitled to direct any proceedings or negotiations with any Governmental
Entity relating to any of the foregoing, provided that it shall afford the
Company a reasonable opportunity to participate therein. In addition, each
of Parent and the Company shall use its reasonable best efforts to take
such action as may be required by any federal or state court of the United
States, in any suit brought by any Governmental Entity or any other person
challenging the Merger as violative of the Antitrust Laws in order to avoid
the entry of any permanent injunction or other permanent order which has
the effect of preventing the consummation of the Merger prior to the
Termination Date, and in the event that any permanent or preliminary
injunction or other order is entered or becomes reasonably foreseeable to
be entered in any proceeding that would make consummation of the
transactions contemplated hereby in accordance with the terms of this
Agreement unlawful or that would prevent or delay consummation of the
transactions contemplated hereby, Parent shall take promptly any and all
steps (including the appeal thereof or the posting of a bond) within its
control necessary to vacate, modify or suspend such injunction or order so
as to permit such consummation prior to the Termination Date.
(e) If Parent is required to take any action in order to comply
with this Section 7.6, Parent may take such action concurrently with the
closing of the Merger on the Closing Date, and nothing in this Agreement
shall require Parent to take such action prior to the Closing Date.
7.7 PARENT ANNOUNCEMENTS. Parent and the Company shall each use their
reasonable best efforts to consult with the other before issuing any press
releases or making any public statement with respect to the transactions
contemplated by this Agreement and shall not issue any such press release
or such public statement prior to such consultation, except as may be
required by applicable law or obligations pursuant to any listing agreement
with the Nasdaq Stock Market.
7.8 DIRECTORS' AND OFFICERS' INDEMNIFICATION.
(a) The Parent Parties and the Company agree that all rights to
indemnification and all limitations on liability existing in favor of any
Indemnitee as provided in the Charter Documents of the Company (and after
the Merger the Surviving Corporation) or any of its Subsidiaries or any
Indemnity Agreement disclosed in Section 7.8(a) of the Company Disclosure
Schedule shall survive the Merger and continue in full force and effect to
the fullest extent permitted by law. For the purposes of this Section 7.8,
(i) an "INDEMNITEE" shall mean any individual who on or prior to the
Effective Time was an officer or director of the Company or any of its
Subsidiaries, and the heirs, executors, trustees, fiduciaries and
administrators of any officer or director, and (ii) "INDEMNITY AGREEMENT"
shall mean any agreement which provides for indemnification by the Company
or any Subsidiary of the Company of any Indemnitee in effect on the date of
this Agreement.
(b) From and after the Effective Time, Parent shall cause the
Surviving Corporation not to alter, amend or otherwise modify the Charter
Documents of the Surviving Corporation in any manner that adversely affects
or otherwise prejudices the rights of any of the Indemnitees under this
Section 7.8.
(c) Notwithstanding any other provisions hereof, the obligations
of Parent and the Surviving Corporation contained in this Section 7.8 shall
be binding upon the successors and assigns of Parent and the Surviving
Corporation. In the event Parent or the Surviving Corporation or any of
their respective successors or assigns (i) consolidates with or merges into
any other Person or (ii) transfers all or substantially all of its
properties or assets to any Person, then, and in each case, proper
provision shall be made so that successors and assigns of Parent or the
Surviving Corporation, as the case may be, honor the indemnification
obligations set forth in this Section 7.8.
(d) The obligations of Parent and the Surviving Corporation under
this Section 7.8 shall survive the consummation of the Merger for a period
of six years after the Effective Time, and for so long thereafter as any
claim asserted prior to such time shall be pending, and shall not be
terminated or modified in such a manner as to adversely affect any
Indemnitee to whom this Section 7.8 applies without the consent of such
affected Indemnitee (it being expressly agreed that the Indemnitees to whom
this Section 7.8 applies shall be third party beneficiaries of this Section
7.8, each of whom may enforce the provisions of this Section 7.8).
7.9 PARENT TAX FILING.
(a) Parent and the surviving corporation agree to file all federal
and state income tax returns and reports consistent with: (i) the
Reorganization constituting a transaction described in Section 351(a) of
the Code; and (ii) the Merger constituting a reorganization within the
meaning of Section 368(a) of the Code, unless there has been a Final
Determination with respect to any Stockholder that (i) the Reorganization
did not constitute a transaction described in Section 351(a) of the Code;
or (ii) the Merger did not constitute a reorganization within the meaning
of Section 368(a) of the Code, in which case, Parent and the Surviving
Corporation shall be permitted to file their federal and state income tax
returns and reports in a manner consistent with such Final Determination.
Neither Parent, the Surviving Corporation nor any of their Affiliates shall
be required to contest any claim by a Governmental Entity relating to the
treatment of the Reorganization as a transaction described in Section
351(a) of the Code or the treatment of the Merger as a reorganization
within the meaning of Section 368(a) of the Code.
(b) Each Stockholder hereby agrees that it will give Parent prompt
written notice of the initiation by any Governmental Entity of any
examination, proceeding, investigation, claim or action that arises out of,
or is related directly or indirectly to, the tax treatment of the
Reorganization or the Merger.
(c) Each Stockholder hereby agrees that it shall have no recourse
against Parent or any of its Subsidiaries with respect to, and neither
Parent nor any of its Subsidiaries shall have no liability or obligation to
any Stockholder as a result of, the failure of (i) the Reorganization to
constitute a transaction described in Section 351(a) of the Code, or (ii)
the Merger to constitute a reorganization within the meaning of Section
368(a) of the Code.
7.10 SUPPLEMENTAL DISCLOSURE.
(a) Prior to the Closing, the Company shall give prompt notice to
Parent, and Parent shall give prompt notice to the Company, of (i) the
occurrence, or non-occurrence, of any event the occurrence, or
non-occurrence, of which would be likely to cause (A) any representation or
warranty made by it and contained in this Agreement to be untrue or
inaccurate in any material respect or (B) any covenant, condition or
agreement made by it contained in this Agreement not to be complied with or
satisfied and (ii) any failure of the Company or Parent, as the case may
be, to comply with or satisfy any covenant, condition or agreement made by
it and to be complied with or satisfied by it hereunder; provided, however,
that the delivery of any notice pursuant to this Section 7.10 shall not
have any effect for the purpose of determining the satisfaction of the
conditions set forth in Article 8 of this Agreement or otherwise limit or
affect the remedies available hereunder to any party.
(b) Each of Parent and the Company agrees to promptly provide the
other with copies of any and all material correspondence between such party
and Sprint PCS relating to the operation of its business during the period
prior to the Effective Time.
7.11 INVESTIGATION AND AGREEMENT BY THE PARTIES; NO OTHER
REPRESENTATIONS OR WARRANTIES.
(a) Each of the Parent Parties, on the one hand, and the Company
Parties, on the other, acknowledges and agrees that it has made its own
inquiry and investigation into, and, based thereon, has formed an
independent judgment concerning, the other party and its Subsidiaries and
their businesses and operations, and such party has requested such
documents and information from the other party as such party considers
material in determining whether to enter into this Agreement and to
consummate the transactions contemplated in this Agreement. Each of the
Parent Parties, on the one hand, and the Company Parties, on the other
hand, acknowledges and agrees that it has had an opportunity to ask all
questions of and receive answers from the other party with respect to any
matter such party considers material in determining whether to enter into
this Agreement and to consummate the transactions contemplated in this
Agreement.
(b) Each of the Parent Parties, on the one hand, and the Company
Parties, on the other, agrees that, except for the representations and
warranties made by the other party that are expressly set forth in Article
3, Article 4 and Article 5 of this Agreement, as applicable, neither the
other parties nor any of their representatives or Affiliates have made and
shall not be deemed to have made to such party or to any of its
representatives or Affiliates any representation or warranty of any kind.
Without limiting the generality of the foregoing, each party agrees that
except as expressly set forth in this Agreement, neither the other parties
nor any of their Affiliates make or have made any representation or
warranty to such party or to any of its representatives or Affiliates with
respect to:
(i) any projections, forecasts, estimates, plans or budgets of
future revenues, expenses or expenditures, future results of operations (or
any component thereof), future cash flows (or any component thereof) or
future financial condition (or any component thereof) of the other party or
any of its Subsidiaries or the future business, operations or affairs of
the other party or any of its Subsidiaries heretofore or hereafter
delivered to or made available to such party or its counsel, accountants,
advisors, lenders, representatives or Affiliates; and
(ii) any other information, statement or documents heretofore or
hereafter delivered to or made available to such party or its counsel,
accountants, advisors, lenders, representatives or Affiliates with respect
to the other party or any of its Subsidiaries or the business, operations
or affairs of the other party or any of its Subsidiaries.
7.12 RESIGNATIONS. At Closing, the Company shall deliver to Parent
written resignations of each member of the Board of Directors of the
Company and each officer of the Company and its Subsidiaries other than
those officers of the Company and its Subsidiaries designated by Parent at
least seven days prior to the Effective Time and each manager of SWGP,
L.L.C. and SWLP, L.L.C.
7.13 CONTINUATION OF EMPLOYEE BENEFITS.
(a) Following the Effective Time, Parent or a Subsidiary of Parent
shall continue to provide individuals who are employed by the Company and
its Subsidiaries as of the Effective Time and who remain employed with the
Parent or any Subsidiary of Parent (the "AFFECTED EMPLOYEES"), for so long
as such Affected Employees remain employed by Parent or any Subsidiary of
Parent, employee benefits (other than equity compensation) pursuant to
employee benefits plans, programs, policies and arrangements maintained by
Parent or a Subsidiary of Parent providing coverage and benefits, which in
the aggregate, are no less favorable than those provided to employees of
Parent in positions comparable to positions held by Affected Employees with
Parent or its Subsidiaries from time to time after the Effective Time. For
purposes of eligibility to participate and vesting in all benefits provided
to Affected Employees (and covered dependents), Affected Employees will be
credited with their years of service with the Company and its Subsidiaries
and prior employers to the extent service with the Company and its
Subsidiaries and prior employers was taken into account under plans of the
Company and its Subsidiaries. Amounts paid in the calendar year in which
the Effective Time occurs by Affected Employees (and covered dependents)
under any medical plans of the Company or its Subsidiaries shall after the
Effective Time be taken into account in applying deductible and
out-of-pocket limits applicable under the medical plan provided as of the
Effective Time to the same extent as if such amounts had been paid under
such medical plan. Parent will, or will cause a Subsidiary of Parent to,
waive all limitations as to preexisting conditions, exclusions and waiting
periods with respect to participation and coverage requirements applicable
to the Affected Employees (and covered dependents) under any welfare
benefit plans that such persons may be eligible to participate in after the
Effective Time, other than limitations or waiting periods that are already
in effect with respect to such persons and that have not been satisfied as
of the Effective Time under any welfare plan maintained for the Affected
Employees immediately prior to the Effective Time.
(b) Following the Closing Date, Parent or a Subsidiary of Parent
shall cause the Surviving Corporation to reimburse Chickasaw for all
welfare benefit plan expenses paid by Chickasaw on behalf of employees of
the Company (and covered dependents) who participate in any Company welfare
benefit plan that is maintained by Chickasaw in which Company employees
participate (each, a "COMPANY WELFARE PLAN"), provided such expenses are
attributable to claims incurred under a Company Welfare Plan on or before
the Closing Date. Parent or a Subsidiary of Parent shall make any such
reimbursement to Chickasaw within 15 days of notice from Chickasaw that
such amounts are payable. This reimbursement provision shall apply only to
welfare benefit expenses actually paid by Chickasaw and not otherwise
covered by third-party insurance maintained by Chickasaw (including any
stop-loss coverage). Except as otherwise provided in the following
sentence, a claim is deemed to have been incurred when services relating to
the claim were performed. In the case of an individual who is hospitalized
on the Closing Date, all claims relating to such hospitalization
(including, without limitation, hospital charges and physician fees) shall
be deemed to be incurred on or before the Closing Date.
(c) Notwithstanding anything in Section 7.13 to the contrary, but
subject to Section 7.13(e), if the Closing Date shall occur prior to April
1, 2001, Affected Employees (and covered dependents) shall, until April 1,
2001, continue to participate and be provided benefits under Company
Welfare Plans. Parent or a Subsidiary of Parent shall reimburse Chickasaw
for welfare benefit expenses attributable to such post Closing Date
participation in the same manner as described in Section 7.13(b), but with
April 1, 2001 being substituted for the Closing Date. In addition, Parent
shall indemnify and hold Chickasaw harmless in respect of any Damages
arising solely out of such post Closing Date participation to the extent
such Damages were not reimbursed pursuant to the immediately preceding
sentence.
(d) Nothing contained in this Section 7.13 shall create any third
party beneficiary rights in any director, officer or employee or former
director, officer or employee (including any beneficiary or dependent
thereof) of the Company, any of its Subsidiaries or the Surviving
Corporation in respect of continued employment for any specified period of
any nature or kind whatsoever.
(e) The Company covenants and agrees that, if requested in writing
by Parent at least five days prior to the Effective Time, it will
terminate, effective as of immediately prior to the Effective Time, any
Company Plan.
7.14 BORROWED MONEY. Except to the extent that the lenders thereunder
have otherwise agreed, at the Closing, Parent, or a Subsidiary of Parent,
shall cause all Indebtedness of the Company reflected in the payoff letters
delivered pursuant to Section 2.4 to be paid in full.
7.15 FEES. At the Closing, Parent shall, or shall cause the Surviving
Corporation to, pay in full all legal fees and expenses of the Company's
counsel, Xxxxxx & Xxxxxx L.L.P., and financial advisory fees of the
Company's financial advisor, Bear, Xxxxxxx & Co. Inc., that have been
incurred by the Company in connection with the Merger and the
Reorganization, in each case, to the extent set forth on Schedules 7.15(a)
and 7.15(b).
7.16 VOTE BY STOCKHOLDERS. By their execution and delivery of this
Agreement, each of the Stockholders does hereby adopt this Agreement and
approve the Merger. On or before the date provided in Section 2.3 for the
Closing to occur, (a) Parent, as the sole stockholder of Merger Sub, shall
adopt this Agreement and approve the Merger in accordance with the DGCL and
(b) Parent shall cause Merger Sub to amend its certificate of incorporation
to include a provision substantially similar to Article Nine of the
Company's certificate of incorporation.
7.17 NON-FOREIGN STATUS OF STOCKHOLDERS. Each Stockholder shall
deliver a certificate (on Internal Revenue Service Form W-9 or suitable
substitute form as may be requested by Parent's counsel) on its non-foreign
status at the Closing.
7.18 ASSIGNMENT OF LEASE AND LICENSES.
(a) Prior to the Closing, at the request of Parent and in
accordance with Section 7.1, (i) the Company shall provide to Parent and to
Parent's officers, employees, financial advisors, legal counsel,
accountants, consultants and other representatives access to all Tower
Leases, leases for Leased Premises and the FCC licenses described on
Section 3.6(b) to the COMPANY DISCLOSURE SCHEDULE for the purpose of Parent
taking such action as may be necessary, at its sole cost and expense, to
transfer all Tower Leases, leases for Leased Premises and such FCC licenses
immediately after the Effective Time to a newly formed Subsidiary or newly
formed Subsidiaries of Southwest PCS, L.P. and (ii) the Company shall and
shall cause its Subsidiaries to provide reasonable assistance to Parent in
connection with such transfers; provided that nothing in this Section
7.18(a) shall (x) require the Company to prepare any documents or
instruments or otherwise pay any consent fees, filing fees, or other
amounts to any third party, (y) obtain any consent or amendment to any
financing agreement or arrangement or (z) amend the terms and conditions of
any other agreement. Any action taken by Parent under this Section 7.18(a)
shall not constitute the basis for asserting that a breach of any
representation or warranty of the Company has occurred or the assertion
that any closing condition under Article 8 has not been fulfilled.
(b) Promptly following the execution of this Agreement, and
continuing until the Effective Time, the Company shall, and shall cause
each of its Subsidiaries to, use its reasonable best efforts to obtain,
prior to the Closing, all filings, consents, approvals, authorizations,
acknowledgements and other documents (including, in the case of any such
items that may be in existence today but in the possession of other Persons
such as lessors under the Tower Leases, obtaining copies thereof) as shall
be necessary for Parent to conduct a review for purposes of verifying
compliance with the items required on the National Environmental Protection
Act checklist with respect to all towers and tower sites leased, licensed
or otherwise utilized by the Company or any of its Subsidiaries in the
conduct of their business.
7.19 TRANSFER OF COMPANY RECORDS. Prior to the Closing, the Company
shall, and following the Closing Chickasaw shall, cooperate with and assist
Parent in transferring after the Effective Time or causing to be
transferred to Parent after the Effective Time any files, books, records or
other documents relating to the business of the Company or any of its
Subsidiaries that are the property of the Company or any of its
Subsidiaries, that are located on premises which will not be occupied by
the Company or any of its Subsidiaries after the Closing and that are not
otherwise in the possession of the Company or any of its Subsidiaries.
7.20 ADDITIONAL AGREEMENTS. In case at any time after the Effective
Time any further action is necessary or desirable to carry out the purposes
of this Agreement, the proper officers and directors of each party to this
Agreement and their respective Subsidiaries shall take all such necessary
action as may be reasonably requested by Parent (at Parent's sole cost and
expense), on the one hand, or the Stockholders, on the other.
7.21 CREDIT AGREEMENT. No later than 11:59 a.m. Central Standard Time
on March 30, 2001, Parent shall cause the condition in Section 8.2(k) to be
satisfied.
7.22 CHICKASAW OBLIGATIONS.
(a) Except as set forth in subsections (b), (c) and (d) below or
Section 7.13 of this Agreement, each of Chickasaw and the Company shall,
and shall cause their respective Affiliates to, enter into such agreements
and do all such other things necessary to terminate as of the Effective
Time all agreements and arrangements entered into by and between Chickasaw
and any of its Affiliates, on the one hand, and the Company or any of its
Subsidiaries, on the other hand, including, without limitation, the Master
Servicing Agreement, dated as of June 1, 2000 by and among the Company and
Chickasaw, and any agreement or arrangement entered into thereunder, any
lease for automobiles and any lease for office space or floor space.
(b) With respect to the Lease Agreement (the "LEASE AGREEMENT"),
dated as of September 1, 2000, by and between Indian Nations Fiberoptics,
Inc. and SWPCS Holdings, L.L.C., for that certain property located at
000/000 Xxxxxxxxx 0xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx, such Lease Agreement
shall be terminated and the parties thereto shall enter into a new lease
agreement (the "NEW LEASE") as of the Effective Time pursuant to which
Southwest PCS, L.P. ("LP") shall lease from Chickasaw the switch room and
the telco room and any area necessary to provide Parent with 24-hour access
thereto. The New Lease shall be subject to the following terms:
(i) The New Lease shall be for a fixed initial term of five (5)
years commencing on the Closing Date. The term of the New Lease may be
renewed by LP for three successive additional five-year terms by giving
Chickasaw written notice on or before the 90th day prior to the expiration
of the then-current term of such New Lease.
(ii) During the initial term of the New Lease, LP shall pay
Chickasaw rent in an amount of $1,500 per month. Such rent shall be
increased by 15% in each successive five-year term.
(c) Notwithstanding the provisions of Section 7.22(a) above, all
agreements for the provision of telecommunications services and facilities
by and between LP and Indian Nations Fiberoptics, Inc. set forth under Item
1 (Circuit Leases) of Section 3.21(a) of the Company Disclosure Schedule
shall continue in full force and effect in accordance with their terms from
and after the Effective Time.
(d) As of the Effective Time, LP and Chickasaw shall enter into a
sublease agreement (the "SUB LEASE AGREEMENT") covering all equipment
described in Schedule No. 001, dated December 31, 1998, to the Master Lease
Agreement (the "MASTER LEASE AGREEMENT"), dated December 31, 1998, between
General Electric Capital Corporation, as lessor, and Chickasaw, as lessee,
as amended. The Sub Lease Agreement shall have terms not less favorable to
LP as those contained in the Master Agreement.
(e) If any distribution of the shares of Parent Stock received by
Chickasaw or SPCS LLC pursuant to the Merger is made at any time, such
distributee shall agree in writing to (i) guarantee its pro rata portion of
Chickasaw's or SPCS LLC's, as the case may be, indemnification obligations
pursuant to Article 10 of this Agreement and (ii) be bound by all the terms
and provisions of the Registration Rights Agreement.
7.23 MASSMUTUAL DISTRIBUTION. If any distribution of the shares of
Parent Stock received by MassMutual pursuant to the Merger is made at any
time, such distributee shall agree in writing to (i) guarantee its pro rata
portion of MassMutual's indemnification obligations pursuant to Article 10
of this Agreement and (ii) be bound by all the terms and provisions of the
Registration Rights Agreement.
7.24 PARIBAS DISTRIBUTION. If any distribution of the shares of
Parent Stock received by Paribas pursuant to the Merger is made at any
time, such distributee shall agree in writing to (i) guarantee its pro rata
portion of Paribas' indemnification obligations pursuant to Article 10 of
this Agreement and (ii) be bound by all the terms and provisions of the
Registration Rights Agreement.
7.25 TRANSFER OF PROPERTY. On or prior to the Closing Date, the
Company shall transfer by quit-claim deed all of its rights, title and
interest in and to the property listed on Section 3.21(b)(i) of the COMPANY
DISCLOSURE SCHEDULE to Chickasaw in consideration of the assumption by
Chickasaw of any and all obligations and liabilities of the Company
attributable to such property.
ARTICLE 8
CONDITIONS TO CONSUMMATION OF THE MERGER
8.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligations of each party to effect the Merger shall be subject
to the satisfaction or waiver at or prior to the Closing Date of the
following conditions:
(a) GOVERNMENTAL APPROVALS. All authorizations, consents, orders,
declarations or approvals of, or filings with, or terminations or
expirations of waiting periods imposed by, any Governmental Entity, except
the FCC, which the failure to obtain, make or occur would have the effect
of making the Merger or any of the transactions contemplated hereby illegal
or would have a Material Adverse Effect on Parent or the Company (as the
Surviving Corporation), shall have been obtained, shall have been made or
shall have occurred.
(b) WAITING PERIODS. The waiting period (and any extension
thereof) under the HSR Act with respect to the Merger shall have expired or
been terminated and clearance thereunder shall have been obtained.
(c) SPRINT CONSENT. The Company shall have received all approvals
or consents required under the terms of the agreement described in Section
3.20(c) to the consummation of the transactions contemplated herein.
(d) NO INJUNCTION. No Governmental Entity having jurisdiction over
the Company or Parent, or any of their respective Subsidiaries, shall have
enacted, issued, promulgated, enforced or entered any law, rule,
regulation, executive order, decree, injunction or other order (whether
temporary, preliminary or permanent) which is then in effect and has the
effect of making the Merger illegal or otherwise prohibiting consummation
of the Merger.
8.2 CONDITIONS TO OBLIGATION OF THE PARENT PARTIES TO EFFECT THE
MERGER. The obligation of the Parent Parties to effect the Merger shall be
subject to the satisfaction at or prior to the Effective Time of the
following additional conditions, unless waived in writing by Parent:
(a) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Each of the
representations and warranties made by the Company in Sections 3.1, 3.2,
3.3, 3.4, 3.5, 3.7(b), 3.16, 3.17, 3.18, 3.25, 3.27 and 3.28 of this
Agreement shall be true and correct in accordance with their respective
terms as of the date of this Agreement and (except to the extent such
representations and warranties speak expressly as of an earlier date) as of
the Effective Time as though made on and as of the Effective Time. Each of
the representations and warranties of the Company set forth in Article 3
other than those contemplated by the immediately preceding sentence shall
be true and correct in all material respects as of the date of this
Agreement and (except to the extent such representations and warranties
speak expressly as of an earlier date) as of the Effective Time as though
made on and as of the Effective Time; provided, however, that this
condition shall be deemed to have been satisfied unless the individual or
aggregate impact of all inaccuracies of such representations and warranties
(without regard to any materiality or Material Adverse Effect qualifier(s)
contained in any and each such representation or warranty) would have a
Material Adverse Effect on the Company.
(b) REPRESENTATION AND WARRANTIES OF THE STOCKHOLDERS. Each of the
representations and warranties of the Stockholders set forth in Article 5
shall be true and correct in all material respects as of the date of this
Agreement and (except to the extent such representations and warranties
speak expressly as of an earlier date) as of the Effective Time as though
made on and as of the Effective Time, and Parent shall have received a
certificate signed by each Stockholder to such effect.
(c) PERFORMANCE OF OBLIGATIONS OF THE COMPANY PARTIES. Each of the
Company Parties shall have performed in all material respects all
obligations required to be performed by it under this Agreement at or prior
to the Effective Time, and, in respect of the Company, Parent shall have
received a certificate signed on behalf of the Company by the Chief
Executive Officer or the Chief Financial Officer of the Company to such
effect.
(d) MATERIAL ADVERSE EFFECT. There has not occurred any change or
development or combination of changes and/or developments that,
individually or in the aggregate, has had or could reasonably be expected
to have a Material Adverse Effect on the Company.
(e) RELEASE. Each Stockholder shall have executed a release in the
form of EXHIBIT D attached hereto.
(f) RESIGNATION OF DIRECTORS. The Company shall have delivered to
Parent a written resignation effective as of the Effective Time from each
member of the Board of Directors of the Company and each officer of the
Company and its Subsidiaries other than officers of the Company and its
Subsidiaries designated by Parent at least seven days prior to the
Effective Time and each manager of SWGP, L.L.C. and SWLP, L.L.C.
(g) COMPANY DOCUMENTS. The Company shall have delivered to Parent
and Merger Sub (a) a certificate, validly executed by the Secretary of the
Company and dated as of the date of the Effective Time, certifying as to
(i) the terms and effectiveness of the Company's Charter Documents, and
(ii) the valid adoption of resolutions of the Board of Directors of the
Company and the resolutions validly adopted by written consent of the
stockholders of the Company approving and adopting this Agreement and the
consummation of the transactions contemplated hereby, and (b) certificates,
issued not more than two days prior to the date of the Closing, (i) from
the Secretary of State of the State of Delaware, evidencing that the
Company is validly existing under the laws of such state, and (ii) from
every jurisdiction where the Company is qualified, authorized, registered
or licensed to do business as a foreign entity, as set forth in Section
3.1(a) of the COMPANY DISCLOSURE SCHEDULE, evidencing that the Company is
qualified, authorized, registered or licensed to do business as a foreign
entity in such jurisdictions.
(h) SUBSIDIARY DOCUMENTS. Each Subsidiary of the Company shall
deliver to Parent and Merger Sub (a) a certificate, validly executed by a
duly authorized officer, general partner or managing member of such
Subsidiary, and dated as of the date of the Effective Time, certifying as
to the terms and effectiveness of such Subsidiary's Charter Documents, and
(b) certificates, issued not more than two days prior to the date of the
Closing, (i) from the Secretary of State of the State of Oklahoma,
evidencing that each Subsidiary is validly existing under the laws of such
state, and (ii) from every jurisdiction where such Subsidiary is qualified,
authorized, registered or licensed to do business as a foreign entity, as
set forth in Section 3.1(a) of the COMPANY DISCLOSURE SCHEDULE, evidencing
that such Subsidiary is qualified, authorized, registered or licensed to do
business as a foreign entity in such jurisdiction.
(i) TERMINATION OF LISTED AGREEMENTS. Each of the parties to the
Listed Agreements shall have executed and delivered an agreement or
agreements, in form and substance reasonably satisfactory to Parent,
terminating and extinguishing, as of the Effective Time, all of such
Person's rights and obligations under such Listed Agreement or Listed
Agreements.
(j) FCC APPROVAL. The FCC shall have authorized (pursuant to a
Special Temporary Authorization or otherwise) the transfer of all the
licenses listed on Section 3.6(b) of the Company Disclosure Schedule in
connection with and as a result of the Merger (it being understood and
agreed that to the extent that it shall be necessary for the Company or any
Subsidiary to make application to the FCC for approval of any other
licenses in addition to and/or in substitution for those set forth on
Section 3.6(b) of the Company Disclosure Schedule, or to make any filings
with the FCC to correct any previous filings made with the FCC with respect
to such licenses, then such application and/or filings shall have been
made).
(k) LENDER CONSENT. Parent and the Lenders (as defined in the
Credit Agreement (the "CREDIT AGREEMENT"), dated as of February 14, 2001,
among Parent, Alamosa (Delaware), Inc., Alamosa Holdings, LLC, the Lenders,
Export Development Corporation, as Co-Documentation Agent, First Union
National Bank, as Documentation Agent, Toronto Dominion (Texas), Inc., as
Syndication Agent, and Citicorp USA, Inc., as Administrative Agent and
Collateral Agent), shall have executed and delivered an amendment and
consent under the Credit Agreement containing such terms as are necessary
to provide for the consummation of the Merger as contemplated by the terms
of this Agreement without the occurrence of any Event of Default under the
Credit Agreement.
8.3 CONDITIONS TO OBLIGATION OF THE COMPANY TO EFFECT THE MERGER. The
obligation of the Company to effect the Merger shall be subject to the
satisfaction at or prior to the Effective Time of the following additional
conditions, unless waived in writing by the Company:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties made by Parent in Sections 4.1, 4.2, 4.3, 4.4, 4.8 and 4.9
of this Agreement shall be true and correct in accordance with their
respective terms as of the date of this Agreement and (except to the extent
such representations and warranties speak expressly as of an earlier date)
as of the Effective Time as though made at and as of the Effective Time.
Each of the representations and warranties of the Parent Parties set forth
in Article 4 other than those contemplated by the immediately preceding
sentence shall be true and correct in all material respects as of the date
of this Agreement and (except to the extent such representations and
warranties speak expressly as of an earlier date) as of the Effective Time
as though made on and as of the Effective Time; provided, however, that
this condition shall be deemed to have been satisfied unless the individual
or aggregate impact of all inaccuracies of such representations and
warranties (without regard to any materiality or Material Adverse Effect
qualifier(s) contained in any and each such representation or warranty)
would have a Material Adverse Effect on Parent.
(b) PERFORMANCE OF OBLIGATIONS OF THE PARENT PARTIES. Each of the
Parent Parties shall have performed in all material respects all
obligations required to be performed by it under this Agreement at or prior
to the Effective Time, and the Company shall have received a certificate
signed on behalf of Parent by the Chief Executive Officer and the Chief
Financial Officer of Parent to such effect.
(c) BORROWED MONEY. Parent, or a Subsidiary of Parent, shall have
performed the obligations under Section 7.14.
(d) FEES. Parent shall have performed its obligations under
Section 7.15.
(e) MATERIAL ADVERSE EFFECT. There has not occurred any change or
development or combination of changes and/or developments that,
individually or in the aggregate, has had or could reasonably be expected
to have a Material Adverse Effect on Parent.
ARTICLE 9
TERMINATION
9.1 TERMINATION. This Agreement may be terminated, and the Merger and
the other transactions contemplated hereby may be abandoned, at any time
prior to the Effective Time, under the following circumstances:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company, if the Merger shall not have
been consummated on or before May 1, 2001, as such date may be extended by
the 15-day cure period provided for in Sections 9.1(d) and (e) (the
"TERMINATION DATE"); provided that the party seeking to terminate this
Agreement pursuant to this Section 9.1(b) shall not have breached in any
material respect its obligations under this Agreement in any manner that
shall have proximately contributed to the failure to consummate the Merger
on or before the Termination Date;
(c) by either Parent or the Company, if any permanent injunction,
order, decree or ruling by any Governmental Entity of competent
jurisdiction preventing the consummation of the Merger shall have become
final and nonappealable; provided, however, that the party seeking to
terminate this Agreement pursuant to this Section 9.1(c) shall have used
reasonable best efforts to remove such injunction or overturn such action;
(d) by the Company, if there has been a material breach of (i) the
representations or warranties made by Parent in Sections 4.1, 4.2, 4.3,
4.4, 4.8 and 4.9 of this Agreement; (ii) the representations and warranties
made by Parent in Article 4 other than those contemplated by Section
9.1(d)(i); or (iii) the covenants or agreements of any of the Parent
Parties set forth in this Agreement, which breach, in each case, is not
curable or, if curable, is not cured within fifteen (15) days after written
notice of such breach is given by the Company to the Parent Parties;
provided, however, that in the case of breaches contemplated by Section
9.1(d)(ii), the termination right under this Section 9.1(d) shall not be
available unless the individual or aggregate impact of all inaccuracies of
such representations and warranties (determined without regard to any
materiality or Material Adverse Effect qualifier(s) contained in any and
each such representation or warranty) would have a Material Adverse Effect
on Parent.
(e) by Parent, if there has been a material breach of (i) the
representations or warranties made by the Company in Sections 3.1, 3.2,
3.3, 3.4, 3.5, 3.7(b), 3.16, 3.17, 3.18, 3.25, 3.27, and 3.28 of this
Agreement; (ii) the representations and warranties made by the Company in
Article 3 other than those contemplated by Section 9.1(e)(i); or (iii) the
covenants or agreements of any of the Company Parties set forth in this
Agreement, which breach, in each case, is not curable or, if curable, is
not cured within fifteen (15) days after written notice of such breach is
given by Parent to the Company; provided, however, that in the case of
breaches contemplated by Section 9.1(e)(ii), the termination right under
this Section 9.1(e) shall not be available unless the individual or
aggregate impact of all inaccuracies of such representations and warranties
(determined without regard to any materiality or Material Adverse Effect
qualifier(s) contained in any and each such representation or warranty)
would have a Material Adverse Effect on the Company;
(f) by Parent, if there occurs any change or development or
combination of changes and/or developments that, individually or in the
aggregate, has or could reasonably be expected to have a Material Adverse
Effect on the Company; or
(g) by the Company, if there occurs any change or development or
combination of changes and/or developments that, individually or in the
aggregate, has or could reasonably be expected to have a Material Adverse
Effect on the Parent.
9.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement pursuant to this Article 9, the Merger shall be deemed abandoned
and this Agreement shall forthwith become void, except that the provisions
of this Section 9.2, Article 11 and the terms of the Confidentiality
Agreements shall survive any termination of this Agreement; provided,
however, that nothing in this Agreement shall relieve any party from
liability for any breach of this Agreement (which at a minimum shall be the
reasonable expenses incurred by the non-breaching party in connection with
the transactions contemplated herein).
ARTICLE 10
INDEMNIFICATION
10.1 SURVIVAL. All representations and warranties of the Company and
the Stockholders contained in this Agreement shall terminate as of the
Effective Time except for the representations and warranties contained in
Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.7(b), 3.13, 3.25, 3.27 and 3.28, and
Article V hereof, which shall survive the Effective Time for the time
period and for the purposes specified in Sections 10.2 and 10.3. In
addition, all representations and warranties of Parent contained in this
Agreement shall terminate as of the Effective Time except the
representations and warranties of Parent contained in Sections 4.1, 4.2,
4.3(a), 4.8 and clause (a) of Section 4.9 shall survive the Effective Time
and any claims thereunder may be asserted at any time on or before 11:59
p.m. (Dallas, Texas time) on the 365th day following the Effective Time.
All covenants contained in this Agreement shall terminate as of the
Effective Time except for such covenants that expressly provide for the
performance thereunder after the Effective Time. The right to
indemnification, payment of Damages or other remedy based on such
representations, warranties and agreements will not be affected by any
investigation conducted with respect to, or any knowledge acquired (or
capable of being acquired) at any time, whether before or after the
execution and delivery of this Agreement or the Closing Date, with respect
to the accuracy or inaccuracy of or compliance with, any such
representation, warranty or agreement. The waiver of any condition based on
the accuracy of any representation or warranty, the consummation of the
Merger, or on the performance of or compliance with any covenant or
obligation, will not affect the right to indemnification, payment of
Damages, or other remedy based on such representations, warranties and
agreements.
10.2 INDEMNIFICATION BY STOCKHOLDERS AND OTHERS.
(a) Subject to the limitations set forth in this Article 10, from
and after the Closing, the Stockholders, jointly and severally, will
indemnify and hold harmless Parent, the Surviving Corporation and their
respective directors, officers, employees, stockholders, agents, advisors,
attorneys, accountants, consultants and affiliates (collectively, the
"INDEMNIFIED PARTIES") from and against, and will reimburse the Indemnified
Parties for, any and all Article 3 Parent Indemnified Damages, to the
extent that notice of such Article 3 Parent Indemnified Damages and the
factual basis therefor has been provided by Parent to the Stockholder
Representative on or before 11:59 p.m. (Dallas, Texas time) on the 365th
day following the Effective Time. Notwithstanding the foregoing, the
Stockholders shall have no liability to the Indemnified Parties under this
Section 10.2(a) for Article 3 Parent Indemnified Damages until the
aggregate amount of such Article 3 Parent Indemnified Damages exceeds
$3,000,000, at which time the Stockholders shall be liable to the extent
that such Article 3 Parent Indemnified Damages exceed such amount.
(b) Subject to the limitations set forth in this Article 10, from
and after the Closing, the Stockholders, jointly and severally, will
indemnify and hold harmless the Indemnified Parties from and against, and
will reimburse the Indemnified Parties for, any and all Article 3 Parent
Tax Indemnified Damages, to the extent that notice of such Article 3 Parent
Tax Indemnified Damages and the factual basis therefor has been provided by
Parent to the Stockholder Representative on or before 11:59 p.m. (Dallas,
Texas time) on the day that is fifteen days following the last day of the
applicable statute of limitations period.
(c) Subject to the limitations set forth in this Article 10, from
and after the Closing, each Stockholder, individually for itself and not
jointly, shall indemnify and hold harmless the Indemnified Parties from and
against, and shall reimburse the Indemnified Parties for, any and all
Article 5 Parent Indemnified Damages.
(d) Subject to the limitations set forth in this Article 10, from
and after the Closing, each Stockholder, jointly and severally, shall
indemnify and hold harmless the Indemnified Parties from and against, and
shall reimburse the Indemnified Parties for, the Excess Fee Amount (less
any Excess Fee Amount for which Parent reduced the Aggregate Merger
Consideration paid pursuant to Article II hereof).
(e) Subject to the limitations set forth in this Article 10, from
and after the Closing, Chickasaw shall indemnify and hold harmless the
Indemnified Parties from and against, and shall reimburse the Indemnified
Parties for, any and all Tower Indemnified Damages, to the extent that
notice of such Tower Indemnified Damages and the factual basis therefor has
been provided by Parent to Chickasaw on or before 11:59 p.m. (Dallas, Texas
time) on the 365th day following the Effective Time. Notwithstanding the
foregoing, (i) the maximum aggregate liability of Chickasaw pursuant to
this Section 10.2(e) for Tower Indemnified Damages shall not exceed
$7,500,000 (the "TOWER INDEMNIFIED DAMAGES CAP") and (ii) Tower Indemnified
Damages otherwise payable by Chickasaw pursuant to the terms of this
Section 10.2(e) shall be determined net of any amounts recovered by the
Indemnified Parties from any third parties based on claims any Indemnified
Party has against such third parties which reduce the amount of Tower
Indemnified Damages incurred or suffered by the Indemnified Parties.
Notwithstanding any other provision to the contrary contained herein, in no
event shall any Indemnified Party compromise or settle any claim against
such Indemnified Party for Tower Indemnified Damages, unless either (x) the
amount of the compromise or settlement does not exceed $20,000 in cash or
(y) Chickasaw consents in writing to such compromise or settlement (which
consent shall not be unreasonably withheld). Any settlement or compromise
in violation of the immediately preceding sentence shall not be recoverable
from Chickasaw pursuant to this Section 10.2(e). If any Indemnified Party
has any potential claims or rights against any third party which, if
pursued, would reduce the amount of Tower Indemnified Damages otherwise
incurred or suffered by such Indemnified Party, the Indemnified Party shall
assign any such claims or rights to Chickasaw promptly after the
Indemnified Party has received payment from Chickasaw of all Tower
Indemnified Damages incurred in respect of such a claim or right, by way of
subrogation or otherwise, and shall assist and cooperate fully with
Chickasaw in asserting such claims or rights.
(f) Subject to the limitations set forth in this Article 10, from
and after the Closing, the Stockholders, jointly and severally, shall
indemnify and hold harmless the Indemnified Parties from and against, and
will reimburse the Indemnified Parties for, any and all Covenant Parent
Indemnified Damages.
(g) Subject to the limitations set forth in this Article 10, from
and after the Closing, Chickasaw and SPCS LLC, jointly and severally, shall
indemnify and hold harmless the Indemnified Parties from and against, and
shall reimburse the Indemnified Parties for, any and all Chickasaw Parent
Indemnified Damages.
(h) Subject to the limitations set forth in this Article 10, from
and after the Closing, MassMutual shall indemnify and hold harmless the
Indemnified Parties from and against, and shall reimburse the Indemnified
Parties for, any and all MassMutual Parent Indemnified Damages.
(i) Subject to the limitations set forth in this Article 10, from
and after the Closing, Paribas shall indemnify and hold the Indemnified
Parties from and against, and shall reimburse the Indemnified Parties for,
any and all Paribas Parent Indemnified Damages.
(j) Subject to the limitations set forth in this Article 10, from
and after the Closing, each Stockholder, individually as to itself and not
jointly, shall indemnify and hold harmless the Indemnified Parties from and
against, and shall reimburse the Indemnified Parties for, any and all
Section 7.20 Parent Indemnified Damages.
(k) Notwithstanding the foregoing, the maximum aggregate liability
of any Stockholder pursuant to Sections 10.2(a), 10.2(b), 10.2(c), 10.2(f),
10.2(g), 10.2(h), 10.2(i) and 10.2(j) for Damages shall not exceed the
amount of Aggregate Merger Consideration received by such Stockholder.
10.3 PROCEDURE FOR INDEMNIFICATION -- THIRD-PARTY CLAIMS. Promptly
after receipt by an Indemnified Party under Section 10.2 of written notice
of a claim or the commencement of any action or proceeding against it (a
"THIRD-PARTY CLAIM"), such Indemnified Party shall, if a claim in respect
thereof is to be made against any Stockholder (an "INDEMNIFYING PARTY"),
give written notice to the Indemnifying Party of the commencement thereof,
but the failure so to notify the Indemnifying Party shall not relieve it of
any liability that it may have to any Indemnified Party except to the
extent the Indemnifying Party demonstrates that the defense of such action
is materially prejudiced thereby. In case any such action or proceeding
shall be brought against an Indemnified Party and it shall give notice to
the Indemnifying Party of the commencement thereof, the Indemnifying Party
shall be entitled to participate therein and, to the extent that it shall
wish (unless (i) the Indemnifying Party is also a party to such action or
proceeding and the Indemnified Party determines in good faith that joint
representation would be inappropriate or (ii) the Indemnifying Party fails
to provide reasonable assurance to the Indemnified Party of its financial
capacity to defend such proceeding and provide indemnification with respect
to such proceeding) to assume the defense thereof with counsel reasonably
satisfactory to such Indemnified Party and, after notice from the
Indemnifying Party to such Indemnified Party of its election so to assume
the defense thereof, the Indemnifying Party shall not be liable to such
Indemnified Party under such Section for any fees or other expenses of
counsel or any other expenses with respect to the defense of such action or
proceeding, in each case, subsequently incurred by such Indemnified Party
in connection with the defense thereof, so long as the Indemnifying Party
is diligently defending the same. If an Indemnifying Party assumes the
defense of such action or proceeding, (a) the Indemnified Party shall be
entitled, at its own expense, to participate in the defense thereof, (b) no
compromise or settlement thereof may be effected by the Indemnifying Party
without the Indemnified Party's consent unless (i) there is no finding or
admission of any violation of law or any violation of the rights of any
Person and no effect on any other claims that may be made against the
Indemnified Party, (ii) the sole relief provided is monetary damages that
are paid in full by the Indemnifying Party and (iii) such judgment or
settlement includes as an unconditional term thereof the giving by each
claimant or plaintiff to each Indemnified Party of a release from all
liability in respect of such action or proceeding and (c) the Indemnifying
Party shall have no liability with respect to any compromise or settlement
thereof effected without its consent which shall not be unreasonably
withheld. If notice is given to an Indemnifying Party of the commencement
of any action or proceeding and it does not, within 10 business days after
the Indemnified Party's notice is given, give notice to the Indemnified
Party of its election to assume the defense thereof, the Indemnifying Party
shall be bound by any determination made in such action or (if the
Indemnifying Party was entitled to but did not assume the defense of such
action or proceeding) any compromise or settlement thereof effected in good
faith by the Indemnified Party. As to any such action or proceeding as to
which the Indemnifying Party was not entitled to assume the defense
thereof, no compromise or settlement of any such action or proceeding may
be effected by an Indemnified Party without the Indemnifying Party's
consent, which consent will not be unreasonably withheld.
10.4 PROCEDURE FOR INDEMNIFICATION - OTHER CLAIMS. A claim for
indemnification for any matter not involving a Third-Party Claim may be
asserted by notice to the party from whom indemnification is sought.
10.5 CONTRIBUTION. The Stockholders hereby agree that, as among the
Stockholders, the obligations and liabilities arising under Section
10.2(a), 10.2(b), 10.2(d) and 10.2(f) shall be borne among the Stockholders
based upon each Stockholder's Company Ownership Percentage, and that each
Stockholder shall have the right to seek contribution from the Stockholders
with respect to such obligations. No Stockholder shall not have a right of
contribution from any of the other Stockholders in respect of its
obligations and liabilities under Sections 10.2(c), 10.2(e), 10.2(g),
10.2(h), 10.2(i), or 10.2(j), as the case may be.
10.6 SATISFACTION OF LIABILITY. Any Stockholder may satisfy its
liability under this Article 10 by (a) delivering shares of Parent Stock
valued at the Parent Stock Price or (b) cash payments, at the sole option
of such party.
10.7 EXCLUSIVITY. From and after the Closing, the indemnification
provisions of this Article 10 shall be the exclusive remedy that may be
asserted against any Stockholder by Parent, the Surviving Corporation or
their respective Affiliates for any loss, expense, damage, deficiency,
liability, claim or obligation, including investigative costs, costs of
defense, settlement costs and attorneys' and accountants' fees incurred in
connection with this Agreement. Notwithstanding the foregoing, the
liability of any party under this Article 10 shall be in addition to, and
not exclusive of any other liability that such party may have under Section
10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5
promulgated thereunder, based on such party's fraudulent acts or omissions.
None of the provisions set forth in this Agreement shall be deemed a waiver
by any party to this Agreement of any right or remedy which such party may
have at law or equity based on any other party's fraudulent acts or
omissions. None of the provisions of this Section 10.7 shall be deemed a
waiver of any defenses which may be available in respect of actions or
claims under Section 10(b) of the Securities Exchange Act of 1934, as
amended, Rule 10b-5 promulgated thereunder or for fraud, including but not
limited to, defenses of statutes of limitations or limitations of damages.
ARTICLE 11
GENERAL PROVISIONS
11.1 AMENDMENT AND MODIFICATION. At any time prior to the Effective
Time, this Agreement may be amended, modified or supplemented by written
agreement (referring specifically to this Agreement) of the parties hereto
with respect to any of the terms contained herein.
11.2 WAIVER. At any time prior to the Effective Time, Parent, on the
one hand, and the Company, on the other hand, may (a) extend the time for
the performance of any of the obligations or other acts of the other, (b)
waive any inaccuracies in the representations and warranties of the other
contained herein or in any documents delivered pursuant hereto and (c)
waive compliance by the other with any of the agreements or conditions
contained herein which may legally be waived. Any such extension or waiver
shall be valid only if set forth in an instrument in writing specifically
referring to this Agreement and signed on behalf of such party.
11.3 NOTICES. All notices and other communications hereunder shall be
in writing and shall be delivered personally or by next-day courier or
telecopied with confirmation of receipt, to the parties at the addresses
specified below (or at such other address for a party as shall be specified
by like notice; provided that notices of a change of address shall be
effective only upon receipt thereof). Any such notice shall be effective
upon receipt, if personally delivered or telecopied, or one day after
delivery to a courier for next-day delivery.
If to the Parent Parties, to:
Alamosa Holdings, Inc.
0000 X. Xxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Chief Executive Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, III
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Company, to:
Southwest PCS Holdings, Inc.
0 X. XxXxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copies to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: A. Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Stockholders, to the addresses shown on the signature
pages hereto.
11.4 DESCRIPTIVE HEADINGS; INTERPRETATION. The headings contained in
this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. References in this
Agreement to Sections, Exhibits or Articles mean a Section, Exhibit or
Article of this Agreement unless otherwise indicated. References to this
Agreement shall be deemed to include the Exhibits hereto and the applicable
DISCLOSURE SCHEDULE, unless the context otherwise requires. The disclosure
of any matter in any section of such DISCLOSURE SCHEDULE shall not be
deemed to constitute an admission by any party or to otherwise imply that
any such matter is material or may have a Material Adverse Effect on such
party for purposes of this Agreement.
11.5 ENTIRE AGREEMENT. This Agreement (including the Exhibits, the
DISCLOSURE SCHEDULES and the Registration Rights Agreement), together with
the Confidentiality Agreements, constitutes the entire agreement between
the parties and supersedes all other prior agreements and understandings,
both written and oral, among the parties or any of them, with respect to
the subject matter hereof.
11.6 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect
to the provisions thereof relating to conflicts of law.
11.7 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 agreement.
11.8 ASSIGNMENT; THIRD-PARTY BENEFICIARIES. This Agreement and the
rights, interests and obligations hereunder shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns;
provided, however, that no party hereto may assign or otherwise transfer
its rights, interests or obligations hereunder without the prior written
consent of the other parties hereto. Except for the provisions of Section
7.8, nothing in this Agreement is intended to confer upon any Person other
than the parties hereto any rights or remedies hereunder.
11.9 NO RECOURSE AGAINST OTHERS. Each of the following is herein
referred to as a "COMPANY AFFILIATE": (a) any direct or indirect holder of
any equity interests or securities in the Company (whether limited or
general partners, members or otherwise), or (b) any director, officer,
employee, representative or agent, in their respective capacities as such,
of the Company or any such holder of equity interests or securities
referred to in clause (a) above. Except for any Company Affiliate that is a
signatory party thereto (or, with respect to the Registration Rights
Agreement, becomes a Holder), no Company Affiliate shall have any liability
or obligation of any nature whatsoever in connection with or under this
Agreement or the Registration Rights Agreement or the transactions
contemplated hereby or thereby, and the Parent Parties hereby waive and
release all claims of any such liability and obligation.
11.10 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement in any other jurisdiction. If any
provision of this Agreement is so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
11.11 ATTORNEYS' FEES. If any action at law or equity, including an
action for declaratory relief, is brought to enforce or interpret any
provision of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and expenses from the other party, which
fees and expenses shall be in addition to any other relief which may be
awarded.
11.12 EXPENSES. Except as otherwise set forth in Section 7.15, each
party hereto (including each Stockholder) shall bear its own costs and
expenses in connection with this Agreement and the transactions
contemplated hereby. In the event of a dispute between the parties hereto
in connection with this Agreement and the transactions contemplated hereby,
each of the parties hereto hereby agrees that the prevailing party shall be
entitled to reimbursement by the other party of reasonable legal fees and
expenses incurred in connection with any action or proceeding.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives, on the date first
written above.
PARENT:
ALAMOSA HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board
and Chief Executive
Officer
MERGER SUB:
FORTY ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
COMPANY:
SOUTHWEST PCS HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
---------------------------
Xxxxxx X. Xxxxx, Xx.
President
STOCKHOLDERS:
Notice Address: CHICKASAW HOLDING COMPANY
--------------
0 X. XxXxxxxxx
Xxxxxxxx Xxxx, XX 00000 By: /s/ Xxxxxx X. Xxxxx, Xx.
Attention: Xxxxxx X. Xxxxx, Xx. ---------------------------
Telephone: 000-000-0000 Xxxxxx X. Xxxxx, Xx.
Facsimile: 000-000-0000 Executive Vice President
SOUTHWEST PCS, L.L.C.
5 X. XxXxxxxxx By: Chickasaw Holding Company,
Xxxxxxxx Xxxx, XX 00000 its managing member
Attention: Xxxxxx X. Xxxxx, Xx.
Telephone: 000-000-0000
Facsimile: 000-000-0000 By: /s/ Xxxxxx X. Xxxxx, Xx.
---------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: EVP
Notice Address: XXXXXX X. XXXXX, XX.
--------------
/s/ Xxxxxx X. Xxxxx, Xx.
c/o Southwest PCS Holdings, Inc. --------------------------------
0 X. XxXxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Telephone: 000-000-0000
Facsimile: 000-000-0000
Notice Address: PARIBAS CAPITAL FUNDING LLC
--------------
Paribas Capital Funding LLC
000 Xxxxxxx Xxxxxx By: /s/ X.X. Xxxxxxxxx
Xxx Xxxx, XX 00000 ---------------------------
Attention: Xxxxxx Xxxxxxx Name: X.X. Xxxxxxxxx
Tel: 000-000-0000 Title: Director
Fax: 000-000-0000
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxxxxxxx Xxxxxx, Esq.
Notice Address: MASSACHUSETTS MUTUAL LIFE
-------------- INSURANCE COMPANY
Massachusetts Mutual Life
Insurance Company By: Xxxxx X. Xxxxxx & Company,
0000 Xxxxx Xxxxxx Xxx.,xxx investment advisor
Xxxxxxxxxxx, XX 00000-0000
Tel: 000-000-0000
Fax: 000-000-0000 By: /s/ Xxxx X. Xxxxx
Attention: Xxxx X. Xxxxx ---------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
Notice Address: MASSMUTUAL HIGH YIELD
-------------- PARTNERS II LLC
Massachusetts Mutual Life
Insurance Company By: HYP Management, Inc.,
0000 Xxxxx Xxxxxx its managing member
Xxxxxxxxxxx, XX 00000-0000
Tel: 000-000-0000
Fax: 000-000-0000 By: /s/ Xxxx X. Xxxxx
Attention: Xxxx X. Xxxxx ---------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
Notice Address: PIONEER TELECOMMUNICATIONS, INC.
--------------
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 By: /s/ Xxxxxxx Xxxx
Tel: 000-000-0000 ---------------------------
Fax: 000-000-0000 Name: Xxxxxxx Xxxx
Attention: Xxxxxxx Xxxx Title: General Manager
Notice Address: CENTRAL CELLULAR, INC.
--------------
000 Xxxxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxx Guest
Tel: 000-000-0000 ---------------------------
Fax: 000-000-0000 Name: Xxxxx Guest
Attention: Xxxxx Guest Title: Pres.
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") dated as of
March 9, 2001, is entered into by and among Alamosa Holdings, Inc., a
Delaware corporation ("PARENT"), and the other persons set forth on the
signature pages hereto (the "INITIAL HOLDERS").
WHEREAS, this Agreement is being entered into in connection with
the signing of that certain Agreement and Plan of Merger dated as of even
date herewith by and among Parent, Forty Acquisition, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("MERGER SUB"),
Southwest PCS Holdings, Inc., a Delaware corporation (the "COMPANY") and
all of the stockholders of the Company listed as such on the signature
pages thereto (the "MERGER AGREEMENT").
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS.
"ADVICE" shall have the meaning provided in Section 2.4 hereof.
"AGREEMENT" means this Registration Rights Agreement, as such from
time to time may be amended.
"CLOSING" shall have the meaning set forth for such term in the
Merger Agreement.
"CLOSING DATE" shall have the meaning set forth for such term in
the Merger Agreement.
"COMMON STOCK" means shares of the common stock, $.01 par value
per share, of Parent, and any capital stock of Parent, or any successor
entity, into which such Common Stock hereafter may be changed.
"COMPANY" shall have the meaning set forth in the introductory
recitals hereof.
"EFFECTIVE PERIOD" shall have the meaning provided in Section 2.1
hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"HOLDER" means (i) any Initial Holder, (ii) any direct or indirect
holder of an equity interest in any Initial Holder who becomes a transferee
of any Registrable Shares held by any Initial Holder as a result of a
distribution in kind of Registrable Shares and (iii) in the case of
Paribas, up to ten individuals to whom Paribas (or any transferee of
Paribas as contemplated by clause (ii) above) may distribute its
Registrable Shares, provided that Paribas shall in no event transfer to
such individuals more than 10% of the Registrable Shares received by
Paribas in the Merger.
"HOLDER AFFILIATES" shall have the meaning provided in Section
2.6(a) hereof.
"INITIAL HOLDERS" shall have the meaning set forth in the
introductory paragraph hereof.
"MAJORITY IN INTEREST" shall mean Holders who hold a majority of
the Registrable Shares.
"MATERIAL ADVERSE EFFECT" shall have the meaning provided in
Section 2.2(b) hereof.
"MERGER" shall mean the merger of the Company and Merger Sub
contemplated by the Merger Agreement.
"MERGER AGREEMENT" shall have the meaning set forth in the
introductory recitals hereof.
"MERGER SUB" shall have the meaning set forth in the introductory
recitals hereof.
"NASD" shall have the meaning provided in Section 2.3(m) hereof.
"PARENT" shall have the meaning set forth in the introductory
paragraph hereof, and shall include the issuer of any capital stock into
which the Common Stock is changed.
"PARIBAS" means Paribas Capital Funding LLC.
"PERSON" means any natural person, corporation, company, limited
or general partnership, joint stock company, joint venture, association,
limited liability company, trust, bank, trust company, land trust, business
trust or other entity or organization.
"REGISTRABLE SHARES" means at any time the Common Stock owned by
the Holders and acquired pursuant to the transactions contemplated in the
Merger Agreement, together with any shares of Common Stock or other
securities issued as a dividend on the Common Stock and any other shares of
Common Stock or other securities distributable on, or with respect to, or
in substitution for such Registrable Shares; provided, however, that
Registrable Shares shall not include any shares of Common Stock or other
securities (a) the sale of which by a Holder has been registered pursuant
to the Securities Act and which shares have been sold pursuant to such
registration, (b) which have been sold pursuant to Rule 144 promulgated
under the Securities Act or (c) which are eligible to be sold without
restriction as contemplated by Rule 144(k).
"REGISTRATION EXPENSES" shall have the meaning provided in Section
2.5 hereof.
"REGISTRATION STATEMENT" means a registration statement on Form
S-1 or, if available, a registration statement on Form S-3 (or any
successor form) that is to be filed with the SEC under the Securities Act
for the purpose of registering the proposed resale and distribution of the
Registrable Shares.
"RULE 144" means Rule 144 (or any successor rule of similar
effect) promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"SELLING EXPENSES" shall have the meaning provided in Section 2.5
hereof.
"SELLING HOLDER" means any Holder who is selling Registrable
Shares pursuant to a public offering registered hereunder.
"SHELF REGISTRATION" shall have the meaning provided in Section
2.1 hereof.
"SUSPENSION NOTICE" shall have the meaning provided in Section 2.4
hereof.
ARTICLE 2
REGISTRATION RIGHTS
2.1 SHELF REGISTRATION. Parent agrees that it shall file with the
SEC the Registration Statement pursuant to Rule 415 of the Securities Act
(a "SHELF REGISTRATION") covering the offer and resale by the Holders of
all the Registrable Shares and shall use its reasonable best efforts to
cause the Shelf Registration to be declared effective by the SEC within six
months after the Closing. Parent agrees that it will not knowingly engage
in any transaction that would reasonably be expected to prevent, or
materially delay beyond the date that is six months after the effective
time of the Merger, the effectiveness of the Shelf Registration. The offer
and resale of such shares shall be pursuant to a plan of distribution
substantially similar to that attached as EXHIBIT A hereto; provided that
(a) in no event shall such plan of distribution include an underwritten
public offering and (b) prior to the first anniversary of the Closing Date,
each Holder agrees that it shall limit sales under the Shelf Registration
of its Registrable Shares to an amount that shall not exceed 50% of the
Registrable Shares (subject to adjustment as provided in the definition of
Registrable Shares) initially held by such Holder following the effective
time of the Merger. Subject to Section 2.4, Parent shall be required to
maintain the effectiveness of the Shelf Registration until the earlier of
(i) such time as all of the Registrable Shares have been resold, or (ii)
such time as all of the Holders can sell all of the Registrable Shares
without restriction pursuant to Rule 144(k) under the Securities Act (the
"EFFECTIVE PERIOD"); provided that, at any time when there is no
registration statement filed by Parent pursuant to Rule 415 that is
effective with the SEC other than the Shelf Registration, Parent shall not
be required to maintain the effectiveness of the Shelf Registration after
the second anniversary of the Closing Date as to any Registrable Shares
held by a Holder that otherwise could then be sold pursuant to Rule 144(k),
but may not be sold pursuant to Rule 144(k) because the Holder(s) of such
shares is an "affiliate" (as such term is defined in Rule 144 under the
Securities Act) solely because such Holder is the beneficial owner of
additional shares of Common Stock acquired not in connection with the
Merger, which has caused such Holder to be deemed an affiliate for purposes
of Rule 144. Each Holder agrees to furnish promptly to Parent in writing
all information requested by Parent for inclusion in the Registration
Statement (including the intended method of disposition of the Registrable
Shares held by such Holder) or required from time to time to be disclosed
in order to make the information previously furnished to Parent by such
Holder not misleading.
2.2 PIGGYBACK REGISTRATION.
(a) If at any time during the Effective Period Parent
proposes to file a registration statement under the Securities Act
with respect to an underwritten offering of its equity securities
for its own account or for the account of another Person or
Persons (other than a registration statement on Form S-4 or S-8
(or any substitute form, respectively, that may be adopted by the
SEC)), Parent shall give written notice of such proposed filing to
the Holders at the addresses set forth in the share register of
Parent as soon as reasonably practicable (but in no event less
than 10 days before the anticipated filing date), undertaking to
provide each Holder the opportunity to register on the same terms
and conditions all or any portion of such Holder's Registrable
Shares (a "PIGGYBACK REGISTRATION"). Each Holder will have ten
business days after receipt of any such notice to notify Parent as
to whether it wishes to participate in a Piggyback Registration;
provided that should a Holder fail to provide timely notice to
Parent, such Holder will forfeit any rights to participate in the
Piggyback Registration with respect to such proposed offering. If
Parent shall determine in its sole discretion not to register or
to delay the proposed offering, Parent may, at its election,
provide written notice of such determination to the Holders and
(i) in the case of a determination not to effect the proposed
offering, shall thereupon be relieved of the obligation to
register such Registrable Shares in connection therewith, and (ii)
in the case of a determination to delay a proposed offering, shall
thereupon be permitted to delay registering such Registrable
Shares for the same period as the delay in respect of the proposed
offering. As between Parent and the Selling Holders, Parent shall
be entitled to select the underwriters in connection with any
Piggyback Registration.
(b) If any Person (including Parent) requests, pursuant
to Section 2.2 or in connection with similar piggyback
registration rights, that Registrable Shares be included in a
registration statement for an underwritten offering and Parent
shall determine, based upon advice of the managing underwriter or
underwriters, that the inclusion of such Registrable Shares would
materially and adversely affect the price or success of the
offering (a "MATERIAL ADVERSE EFFECT"), then to the extent
necessary to eliminate such Material Adverse Effect, Parent will
include in such registration (i) first, (x) if the proposed
offering is for a primary issuance by Parent, the shares of Common
Stock that Parent proposes to sell for its own account, or (y), if
the proposed offering is the result of a demand registration right
held by another Person, the shares of Common Stock that such
Person proposes to sell for its own account, and (ii) second, as
to each Holder, only a portion of the remaining shares to be
registered equal to the ratio which such Holder's requested shares
bears to the total number of shares requested to be included in
such registration statement by all Persons (other than the Person
or Persons initiating such registration request) who have
requested that their shares be included in such registration
statement. If as a result of the provisions of this Section 2.2(b)
any Holder shall not be entitled to include all Registrable Shares
in a registration that such Holder has requested to be so
included, such Holder may withdraw such Holder's request to
include Registrable Shares in such registration statement prior to
its effectiveness.
(c) No Holder may participate in any Piggyback
Registration hereunder unless such Holder (x) agrees to sell such
Holder's Registrable Shares on the basis provided in any
underwriting arrangements approved by Parent, (y) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements, and other documents reasonably required
under the terms of such underwriting arrangements or otherwise in
connection with such Piggyback Registration; and (z) agrees to pay
its pro-rata share of all Selling Expenses (including all fees and
expenses of its own counsel if any), provided, however, that no
such Holder shall be required to make any representations or
warranties in connection with any such registration other than
representations and warranties as to (i) such Holder, (ii) such
Holder's ownership of his or its Registrable Shares to be sold or
transferred free and clear of all liens, (iii) such Holder's power
and authority to effect such transfer and its intended method of
distribution, and (iv) such matters pertaining to compliance with
securities laws and other applicable laws and governmental rules
and regulations, if any, as may be reasonably requested; provided
further, however, that the obligation of any such Holder to
indemnify pursuant to any such underwriting arrangements shall be
individual as to itself, not joint, among such Holders selling
securities, and the liability of each such Holder will be in
proportion to (in the case where more than one Holder is liable),
and provided further that such liability will be limited to, the
net amount received by such Holder from the sale of his or its
Registrable Shares pursuant to such registration.
2.3 REGISTRATION PROCEDURES. In connection with any
registrations of Registrable Shares pursuant to Sections 2.1 or 2.2 hereof
(subject to Section 2.2(a)), Parent will:
(a) prepare and file with the SEC a registration
statement on any appropriate form under the Securities Act with
respect to the Registrable Shares included therein and, except as
otherwise provided in Section 2.1, use its reasonable efforts to
cause such registration statement to become effective;
(b) prepare and file with the SEC such amendments,
post-effective amendments, and supplements to the registration
statements and the prospectuses used in connection therewith as
may be necessary to keep the registration statements effective
for, in the case of the Shelf Registration, the Effective Period
and, in the case of a Piggyback Registration, such period as may
be specified by the underwriting agreement;
(c) comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by the
registration statements during such periods in accordance with the
intended methods of disposition by the sellers thereof set forth
in the registration statements;
(d) furnish to each Holder of Registrable Shares, and, if
applicable, each underwriter of securities being registered, such
number of copies of the registration statements, each amendment
and supplement thereto, the prospectus included in the
registration statements (including each preliminary prospectus),
any documents incorporated by reference therein and such other
documents as such Holder may reasonably request in order to
facilitate the disposition of the Registrable Shares owned by such
Holder (it being understood that, subject to Section 2.4 and the
requirements of the Securities Act and applicable state securities
laws, Parent consents to the use of the prospectus and any
amendment or supplement thereto (in each case in the form filed by
Parent pursuant to the Securities Act and delivered to such Holder
for distribution) by each Holder and, if applicable, each
underwriter, in connection with the offering and sale of the
Registrable Shares covered by the registration statement of which
such prospectus, amendment or supplement is a part);
(e) use reasonable efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of
such jurisdictions as the Holders or, if applicable, the managing
underwriter, reasonably request to the extent such registration or
qualification is required; use reasonable best efforts to keep
each such registration or qualification (or exemption therefrom)
effective during the period in which the registration statements
are required to be kept effective; and do any and all other acts
and things which may be reasonably necessary or advisable to
enable each Holder to consummate the disposition of the
Registrable Shares owned by such Holder in such jurisdictions
(provided, however, that Parent will not be required to (i)
qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this
subparagraph, (ii) consent to general service of process in any
such jurisdiction), or (iii) subject itself to taxation in any
such jurisdiction;
(f) promptly notify each Holder and, if applicable, each
underwriter, and (if requested by any such Person(s)) confirm such
notice in writing (i) when a prospectus or any prospectus
supplement or post-effective amendment has been filed and, with
respect to a registration statement or any post-effective
amendment, when the same has become effective, (ii) of the
issuance by any state securities or other regulatory authority of
any order suspending the qualification or exemption from
qualification of any of the Registrable Shares under state
securities or "blue sky" laws or the initiation of any proceedings
for that purpose, and (iii) of the happening of any event which
makes any statement made in a registration statement or related
prospectus untrue in any material respect or which requires the
making of any changes in such registration statement, prospectus
or documents so that they will not contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and subject to Section 2.4, as soon as possible
thereafter, prepare and file with the SEC (and deliver such filing
to each Holder) and furnish a supplement or amendment to such
prospectus so that, as thereafter deliverable to the purchasers of
such Registrable Shares, such prospectus will not contain any
untrue statement of a material fact or omit a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(g) make generally available to Parent's securityholders
an earnings statement satisfying the provisions of Section 11(a)
of the Securities Act no later than 30 days after the end of the
12-month period beginning with the first day of Parent's first
fiscal quarter commencing after the effective date of a
registration statement, which earnings statement shall cover said
12-month period, and which requirement will be deemed to be
satisfied if Parent timely files complete and accurate information
on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise
complies with Rule 158 under the Securities Act;
(h) promptly incorporate in a prospectus supplement or
post-effective amendment in connection with the Shelf Registration
such information as any Holder reasonably requests to be included
therein (including without limitation the naming of additional
Holders therein and specifying the number of Registrable Shares
held by each such Holder), and promptly make all required filings
of such prospectus supplement or post-effective amendment;
(i) cooperate with the Holders and, if applicable, the
underwriters, to facilitate the timely preparation and delivery of
certificates (which shall not bear any restrictive legends unless
required under applicable law) representing securities sold under
any registration statement, and enable such securities to be in
such denominations and registered in such names as the managing
underwriter or such Holders may request and keep available and
make available to Parent's transfer agent prior to the
effectiveness of such registration statement a supply of such
certificates;
(j) to the extent provided to Parent or the underwriters,
furnish to each Holder a signed counterpart of (i) an opinion or
opinions of counsel to Parent, and (ii) a comfort letter or
comfort letters from Parent's independent public accountants, each
in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case
may be, as the Holders or managing underwriter reasonably
requests;
(k) use its best efforts to cause the Registrable Shares
included in the Shelf Registration, and use all its reasonable
best efforts to cause the Registrable Shares included in any other
registration statement, to be (i) listed on each securities
exchange, if any, on which securities of the same class issued by
Parent are then listed, or (ii) authorized to be quoted and/or
listed (to the extent applicable) on the Nasdaq Stock Market if
the securities of the same class of Parent as the Registrable
Shares are so authorized;
(l) provide a CUSIP number for the Registrable Shares
included in any registration statement not later than the
effective date of such registration statement;
(m) cooperate with each Holder and, if applicable, each
underwriter, participating in the disposition of such Registrable
Shares and their respective counsel in all reasonable respects in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. ("NASD");
(n) during the period when the prospectus is required to
be delivered under the Securities Act, file within the required
time periods all documents required to be filed by Parent with the
SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act;
(o) notify each Holder promptly of any request by the SEC
for the amending or supplementing of such registration statement
or prospectus or for additional information; and
(p) advise each Holder, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop
order by the SEC suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for
such purpose and promptly use all commercially reasonable efforts
to prevent the issuance of any stop order or to obtain its
withdrawal at the earliest possible moment if such stop order
should be issued.
2.4 SUSPENSION OF DISPOSITIONS; HOLDBACK AGREEMENTS.
(a) Each Holder agrees that, upon receipt of any notice
(a "SUSPENSION NOTICE") from Parent of the happening of any event
of the kind described in Section 2.3(f)(iii) (and such event is
not otherwise attributable to a matter that is contemplated by
Section 2.4(b)), such Holder will forthwith discontinue
disposition of Registrable Shares pursuant to any prospectus until
such Holder's receipt of the copies of the supplemented or amended
prospectus, or until it is advised in writing (the "ADVICE") by
Parent that the use of the prospectus may be resumed, and has
received copies of any additional or supplemental filings which
are incorporated by reference in the prospectus, and, if so
directed by Parent, such Holder will deliver to Parent all copies,
other than permanent file copies then in such Holder's possession,
of the prospectus covering such Registrable Shares current at the
time of receipt of such notice. Parent shall use its reasonable
best efforts and take such actions as are necessary to render the
Advice as soon as possible.
(b) At any time, Parent may suspend sales under the Shelf
Registration and refuse to permit any Holder to resell any
Registrable Shares pursuant to the Shelf Registration if
suspension of the sale of the Registrable Shares under the Shelf
Registration is deemed necessary by Parent, in its good faith
judgment, as a result of the existence of a matter that Parent has
determined would not be in the best interest of Parent to disclose
at such time or a material fact the disclosure of which would have
a material adverse effect on any proposal or plan by Parent or any
of its Subsidiaries to engage in any acquisition or sale of assets
(other than in the ordinary course of business) or any merger,
consolidation, tender offer, securities offering or other
significant transaction. In such an event, Parent shall provide
written notice to the Holders of any such suspension promptly
after Parent makes such determination, and each Holder agrees to
keep the fact of its receipt of such notice confidential if
requested by Parent in such notice. Notwithstanding the foregoing,
(1) Parent shall only be entitled to exercise its right to suspend
sales under the Shelf Registration pursuant to the second
immediately preceding sentence three times in any 12-month period
following the effective date of the Shelf Registration, (2) in no
event may any one period for which sales are suspended under the
Shelf Registration pursuant to the second immediately preceding
sentence exceed sixty (60) consecutive days, and (3) in no event
shall the aggregate number of days for which sales are suspended
under the Shelf Registration in any 12-month period following the
effective date of the Shelf Registration pursuant to the second
immediately preceding sentence exceed one hundred twenty (120). In
addition to the foregoing, Parent may suspend resales under the
Shelf Registration at any time and from time to time to the extent
deemed necessary by Parent, in its sole discretion, in connection
with the filing of a post-effective amendment to the Registration
Statement for the purpose of including information contained in
any report or statement filed or to be filed by Parent under the
Exchange Act (provided that in no event shall the period of such
suspension (i) begin prior to the filing date and (ii) end later
than the effective date, in each case, of such post-effective
amendment). Parent agrees to use its reasonable best efforts to
cause any such amendment to be declared effective as promptly as
possible and to promptly notify the Holders following such time as
Parent has been advised by the SEC that it has declared such
amendment effective. Each Holder hereby covenants and agrees that
it will not dispose of any Registrable Shares pursuant to the
Shelf Registration during the periods for which sales under the
Shelf Registration have been suspended as set forth in this
Section 2.4(b) or until such earlier time as Parent shall have
notified the Holders in writing that sales may resume under the
Shelf Registration.
(c) In connection with any underwritten offering
of Registrable Shares made during the Effective Period, each
Holder hereby agrees, at the request of the underwriters, to enter
into a customary holdback agreement with respect to such Holder's
Registrable Shares, provided, however, that the terms of such
holdback agreement shall be no less favorable than any holdback
agreement executed by any other holders of securities of the
Company in connection with such underwritten offering.
2.5 REGISTRATION EXPENSES. Any expenses incident to Parent's
performance of or compliance with this Agreement, which may include without
limitation (i) all registration and filing fees, (ii) all fees and expenses
associated with filings required to be made with the NASD, as may be
required by the rules and regulations of the NASD, (iii) fees and expenses
of compliance with securities or "blue sky" laws (including reasonable fees
and disbursements of counsel in connection with "blue sky" qualifications
of the Registrable Shares), (iv) rating agency fees, (v) printing expenses
(including expenses of printing certificates for the Registrable Shares in
a form eligible for deposit with Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by a Holder),
(vi) messenger and delivery expenses, (vii) Parent's internal expenses
(including without limitation all salaries and expenses of its officers and
employees performing legal or accounting duties), (viii) the fees and
expenses incurred in connection with any listing of the Registrable Shares,
(ix) fees and expenses of counsel for Parent and its independent certified
public accountants, (x) securities acts liability insurance (if Parent
elects to obtain such insurance), (xi) the fees and expenses of any special
experts retained by Parent in connection with such registration, and (xii)
the fees and expenses of other Persons retained by Parent ("REGISTRATION
EXPENSES") will be borne by Parent; provided that in no event shall
Registration Expenses include any underwriting fees, discounts or
commissions, selling fees or commissions, transfer taxes or the fees and
expenses of counsel for any Holder or for the Holders (collectively,
"SELLING EXPENSES").
2.6 INDEMNIFICATION.
(a) Parent agrees to indemnify and reimburse, to the
fullest extent permitted by law, each Holder, and each of its
employees, officers, and directors and each Person who controls
such Holder (within the meaning of the Securities Act or the
Exchange Act) and any agent or investment advisor thereof
(collectively, the "HOLDER AFFILIATES") (i) against any and all
losses, claims, damages, liabilities, and expenses, joint or
individual (including, without limitation, any legal or other
expenses incurred in connection with defending or investigating
any such action or claim except as limited by Section 2.6(c),
based upon, arising out of or resulting from any untrue or alleged
untrue statement of a material fact contained in any registration
statement or any amendment thereof, prospectus, or preliminary
prospectus relating to the offer and sale of Registrable Shares or
any amendment thereof or supplement thereto, or any omission or
alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii)
against any and all loss, liability, claim, damage, and expense
whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement (effected with Parent's consent) of any
litigation or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim
whatsoever based upon, arising out of or resulting from any such
untrue statement or omission or alleged untrue statement or
omission, and (iii) against any and all costs and expenses
(including reasonable fees and disbursements of counsel) as may be
reasonably incurred in investigating, preparing, or defending
against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon, arising out of or resulting from any such
untrue statement or omission or alleged untrue statement or
omission, to the extent that any such expense or cost is not paid
under clause (i) or (ii) above; except insofar as the same are
made in reliance upon and in conformity with information furnished
in writing to Parent by or on behalf of such Holder or any Holder
Affiliate expressly for use in the preparation of any registration
statement or any amendment thereof, prospectus, or preliminary
prospectus relating to the offer and sale of Registrable Shares or
any amendment thereof or supplement thereto. The reimbursements
required by this Section 2.6(a) will be made by periodic payments
during the course of the investigation or defense, as and when
bills are received or expenses incurred.
(b) In connection with any registration statement in
which a Holder is participating, each such Holder will furnish to
Parent in writing such information and affidavits as Parent
reasonably requests for use in connection with any such
registration statement or prospectus and, to the fullest extent
permitted by law, each such Holder will indemnify and reimburse
Parent and its directors and officers and each Person who controls
Parent (within the meaning of the Securities Act or the Exchange
Act) against any and all losses, claims, damages, liabilities, and
expenses (including, without limitation, any legal or other
expenses) reasonably incurred in connection with defending or
investigating any such claim except as limited by Section 2.6(c),
based upon, arising out of or resulting from any untrue statement
or alleged untrue statement of a material fact contained in the
registration statement or any amendment thereof, prospectus, or
any preliminary prospectus relating to the offer and sale of
Registrable Shares or any amendment thereof or supplement thereto
or any omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with any information or
affidavit so furnished in writing by such Holder or any of its
Holder Affiliates specifically for use in the preparation of the
registration statement or any amendment thereof, prospectus, or
any preliminary prospectus relating to the offer and sale of
Registrable Shares or any amendment thereof or supplement thereto;
provided that the obligation to indemnify will be individual as to
each Holder, not joint, among such Holders, and the liability of
each such Holder will be in proportion to (in the case where more
than one Holder is liable), and provided further that such
liability will be limited to, the net amount received by such
Holder from the sale of Registrable Shares pursuant to such
registration statement; provided, however, that such Holder shall
not be liable in any such case to the extent that prior to the
filing of any such registration statement or prospectus or
amendment thereof or supplement thereto, such Holder has furnished
in writing to Parent information expressly for use in such
registration statement or prospectus or any amendment thereof or
supplement thereto which corrected or made not misleading
information previously furnished to Parent.
(c) Any Person entitled to indemnification hereunder will
(i) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification (provided
that the failure to give such notice shall not limit the rights of
such Person except to the extent that the indemnifying party is
materially prejudiced thereby, and in no event shall such failure
relieve the indemnifying party from any other liability that it
may have to such indemnified party) and (ii) unless such
indemnified party has been advised by counsel in writing that a
conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party;
provided, however, that any Person entitled to indemnification
hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such
indemnified Person unless (A) the indemnifying party has expressly
agreed in writing to pay such fees or expenses, (B) the
indemnifying party shall have failed to timely assume the defense
of such claim and employ counsel reasonably satisfactory to such
Person, (C) the named parties to any such action or proceeding
(including any impleaded parties) include both such indemnified
party and the indemnifying party, and such indemnified party shall
have been advised by counsel in writing that there is a conflict
of interest on the part of counsel employed by the indemnifying
party to represent such indemnified party, or (D) the indemnified
party's counsel shall have advised the indemnified party that
there are defenses available to the indemnified party that are
different from or in addition to those available to the
indemnifying party and that the indemnifying party is not able to
assert on behalf of or in the name of the indemnified party (in
which case of either (A), (B), (C) or (D), if such indemnified
party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party,
(in which case of either (C) or (D)), the indemnifying party shall
not have the right to assume the defense of such action or
proceeding on behalf of such indemnified party but shall have the
right to participate through its own counsel). If such defense is
not assumed by the indemnifying party as permitted hereunder, the
indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but
such consent will not be unreasonably withheld). If such defense
is assumed by the indemnifying party pursuant to the provisions
hereof, such indemnifying party shall not settle or otherwise
compromise the applicable claim unless (1) such settlement or
compromise contains a full and unconditional release of the
indemnified party or (2) the indemnified party otherwise consents
in writing (such consent not to be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim
, unless any indemnified party shall have been advised by counsel
in writing that a conflict of interest exists between such
indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party shall
be obligated to pay the reasonable fees and disbursements of such
additional counsel or counsels.
(d) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 2.6(a) or
Section 2.6(b) are unavailable to or insufficient to hold harmless
an indemnified party in respect of any losses, claims, damages,
liabilities, or expenses (or actions in respect thereof) referred
to therein, then (i) each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, liabilities, or expenses (or actions in
respect thereof) in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and the indemnified
party in connection with the actions which resulted in the losses,
claims, damages, liabilities or expenses or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material
fact relates to information supplied by such indemnifying party or
indemnified party, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not
be just and equitable if contribution pursuant to this Section
2.6(d) were determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in this Section 2.6(d). The amount paid
or payable by an indemnified party as a result of the losses,
claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or, except as provided in
Section 2.6(c), defending any such action or claim.
Notwithstanding the provisions of this Section 2.6(d), no Holder
shall be required to contribute an amount greater than the dollar
amount by which the proceeds received by such Holder with respect
to the sale of any Registrable Shares exceeds the amount of
damages which such Holder has otherwise been required to pay by
reason of such statement or omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
The Holders' obligations in this Section 2.6(d) to contribute
shall be individual in proportion to the amount of Registrable
Shares registered by them and not joint.
If sufficient indemnification is available under this
Section 2.6, the indemnifying parties shall indemnify each
indemnified party to the full extent provided in Section 2.6(a)
and Section 2.6(b) without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 2.6(d).
(e) The indemnification and contribution provided for
under this Agreement will remain in full force and effect
regardless of the termination of this Agreement or any
investigation made by or on behalf of the indemnified party or any
officer, director, or controlling Person of such indemnified party
and will survive the transfer of securities.
(f) The obligations of the parties under this Section 2.6
shall be in addition to any liability which any party may
otherwise have to any other party.
ARTICLE 3
MISCELLANEOUS
3.1 NOTICES. All notices and other communications hereunder shall
be in writing and shall be delivered personally or by next-day courier or
telecopied with confirmation of receipt, to the parties at the addresses
specified below (or at such other address for a party as shall be specified
by like notice; provided that notices of a change of address shall be
effective only upon receipt thereof). Any such notice shall be effective
upon receipt, if personally delivered or telecopied, or one day after
delivery to a courier for next-day delivery.
If to Parent, to:
Alamosa Holdings, Inc.
0000 X. Xxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Chief Executive Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, III
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to any Holder, to the address set forth for such Holder on the
signature pages attached hereto.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
3.2 RULE 144. Parent covenants that it will file any reports
required to be filed by it under the Securities Act and the Exchange Act
and that it will take such further action as the Holders may reasonably
request to the extent required from time to time to enable the Holders to
sell Registrable Shares without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC. Upon the request
of any Holder, Parent will deliver to such Holder a written statement as to
whether it has complied with such reporting requirements.
3.3 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
3.4 GOVERNING LAW. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
3.5 DUPLICATE ORIGINALS. All parties may sign any number of copies
of this Agreement. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
3.6 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws in effect
during the term of this Agreement, such provision shall be fully severable;
this Agreement shall be construed and enforced as if such illegal, invalid,
or unenforceable provision had never comprised a part of this Agreement;
and the remaining provisions of this Agreement shall remain in full force
and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of such illegal, invalid, or unenforceable provision,
there shall be added automatically as a part of this Agreement a provision
as similar in terms of such illegal, invalid, or unenforceable provision as
may be possible and be legal, valid, and enforceable.
3.7 NO WAIVERS; AMENDMENTS.
3.7.1 No failure or delay on the part of Parent or any
Holder in exercising any right, power or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such
right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to Parent or any Holder at law or in equity.
3.7.2 Any provision of this Agreement may be amended,
waived or modified; provided that such amendment, waiver or modification is
in writing and is signed by Parent and a Majority in Interest; and provided
further, that any amendment, waiver, or modification of this Agreement that
(a) adversely affects a Holder's rights hereunder or (b) increases a
Holder's obligations, liabilities or duties hereunder, shall require such
Holder's written approval.
3.8 ASSIGNMENT OF REGISTRATION RIGHTS. Each Holder may assign all
or any part of its rights under this Agreement to any other Holder to whom
such Holder sells, transfers or assigns such Registrable Shares. Any such
assignee of Registrable Shares shall agree in writing to be bound by the
terms of this Agreement to the same extent as each Holder is so bound. In
the event that the Holder shall assign its rights pursuant to this
Agreement in connection with the transfer of less than all its Registrable
Shares to another Holder, the Holder shall also retain his rights with
respect to its remaining Registrable Shares.
SIGNATURES TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Registration
Rights Agreement to be executed by their duly authorized representatives,
on the date first written above.
ALAMOSA HOLDINGS, INC.
By: _______________________________
Name: _____________________________
Title:_____________________________
Notice Address: CHICKASAW HOLDING COMPANY
--------------
0 X. XxXxxxxxx
Xxxxxxxx Xxxx, XX 00000 By:_______________________________
Attention: Xxxxxx X. Xxxxx, Xx. Xxxxxx X. Xxxxx, Xx.
Telephone: 000-000-0000 Executive Vice President
Facsimile: 000-000-0000
Notice Address: SOUTHWEST PCS, L.L.C.
--------------
0 X. XxXxxxxxx
Xxxxxxxx Xxxx, XX 00000 By: Chickasaw Holding Company,
Attention: Xxxxxx X. Xxxxx, Xx. its managing member
Telephone: 000-000-0000
Facsimile: 000-000-0000
By:_______________________________
Name: ____________________________
Title: ___________________________
Notice Address: XXXXXX X. XXXXX, XX.
--------------
c/o Southwest PCS Holdings, Inc.
0 X. XxXxxxxxx
Xxxxxxxx Xxxx, XX 00000
__________________________________
Attention: Xxxxxx X. Xxxxx, Xx.
Telephone: 000-000-0000
Facsimile: 000-000-0000
Notice Address: PARIBAS CAPITAL FUNDING LLC
--------------
Paribas Capital Funding LLC
000 Xxxxxxx Xxxxxx Xx:_______________________________
Xxx Xxxx, XX 00000 Name: ____________________________
Attention: Xxxxxx Xxxxxxx Title: ___________________________
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxxxxxxx Xxxxxx, Esq.
Notice Address: MASSACHUSETTS MUTUAL LIFE
--------------
INSURANCE COMPANY
Massachusetts Mutual Life
Insurance Company By: Xxxxx X. Xxxxxx & Company, Inc.,
0000 Xxxxx Xxxxxx its investment advisor
Xxxxxxxxxxx, XX 00000-0000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxx X. Xxxxx By:_______________________________
Name: ____________________________
Title: ___________________________
Notice Address: MASSMUTUAL HIGH YIELD
-------------- PARTNERS II LLC
Massachusetts Mutual Life
Insurance Company By: HYP Management, Inc.,
0000 Xxxxx Xxxxxx its managing member
Xxxxxxxxxxx, XX 00000-0000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxx X. Xxxxx By:_______________________________
Name: ____________________________
Title: ___________________________
Notice Address: PIONEER TELECOMMUNICATIONS, INC.
--------------
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 By:_______________________________
Tel: 000-000-0000 Name: ____________________________
Fax: 000-000-0000 Title: ___________________________
Attention: Xxxxxxx Xxxx
Notice Address: CENTRAL CELLULAR, INC.
--------------
000 Xxxxxxxx
Xxxxxxxxx, XX 00000 By:_______________________________
Tel: 000-000-0000 Name: ____________________________
Fax: 000-000-0000 Title: ___________________________
Attention: Xxxxx Guest
EXHIBIT A
PLAN OF DISTRIBUTION
The selling stockholders may offer the common stock from time to
time:
o in one or more types of transactions (which may include block
transactions) on the Nasdaq National Market;
o in the over-the counter market;
o in negotiated transactions;
o through put or call options transactions relating to the shares of
common stock;
o through short sales of shares of common stock; or
o a combination of such methods of sale.
Sales may be made at market prices, prevailing at the time of
sale, or at negotiated prices. The selling stockholders may sell shares
directly to purchasers or to or through broker-dealers, which may act as
agents or principals. The shares may also be sold by pledgees, donees,
transferees or other successors in interest of a selling stockholder.
Broker-dealers may receive compensation in the form of discounts,
concessions, or commissions from the selling stockholders and/or the
purchasers of shares of common stock for whom such broker-dealers may act
as agents or to whom they sell as principal, or both (which compensation as
to a particular broker-dealer might be in excess of customary commissions).
The selling stockholders and any broker-dealers that act in
connection with the sale of shares might be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act, and any
commissions received by such broker-dealers and any profit on the resale of
the shares sold by them while acting as principals might be deemed to be
underwriting discounts or commissions under the Securities Act.
The selling stockholders may agree to indemnify any agent, dealer
or broker-dealer that participates in transactions involving sales of the
shares of common stock against certain liabilities, including liabilities
arising under the Securities Act of 1933.
Because selling stockholders may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act of 1933, the
selling stockholders will be subject to the prospectus delivery
requirements of the Securities Act of 1933. Selling stockholders also may
resell all or a portion of the shares of common stock in open market
transactions in reliance upon Rule 144 under the Securities Act of 1933,
provided they meet the criteria and conform to the requirements of such
rule.
EXHIBIT B
CELL TOWERS SUBJECT TO INDEMNITY
Oklahoma Towers
1. Site 007
2. Site 008
3. Site 009
4. Site 011
5. Site 012
6. Site 41 (Sprint Tower #0D03XC402)
7. Site 208
8. Site 209
9. Site 210
10. Site 213
11. Site 214
12. Site 216
13. Site 217
14. Site 218
15. Site 220
16. Site 229
17. Site 230
18. Site 234
19. Site 236
20. Site 245
21. Site 246
22. Site 252
23. Site 256
24. Site 269R
25. Site 280
26. Site 284
27. Site 293
28. Site 295
29. Site 296
30. Site 297
31. Site 317
32. Site 321
33. Site 328
34. Site 338
35. Site 345
36. Site 409
37. Site 410
38. Site 412
39. Site 413
40. Site 437
Texas Towers
1. Site 304
2. Site 305
3. Site 306
4. Site 308
5. Site 403
6. Site 311
Kansas Towers
1. Site 353
2. Site 363
3. Site 364
4. Site 366
5. Site 372
6. Site 501
7. Site 502
8. Site 504
Arkansas Towers
1. Site 100
2. Site 102
3. Site 104
4. Site 107
5. Site 108
6. Site 268
7. Site 395
8. Site 396
9. Site 417
10. Site 423
11. Site 424
12. Site 000
XXXXXXX X
Xxxxx xx Xxxxxxxx
Office of the Secretary of State Page 1
I, XXXXXXX XXXXX WINDSOR, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE
CERTIFICATE OF INCORPORATION OF "FORTY ACQUISITION, INC.", FILED IN THIS
OFFICE ON THE SECOND DAY OF MARCH, A.D. 2001, AT 3 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[LOGO] /s/ Xxxxxxx Xxxxx Windsor
-----------------------------
Xxxxxxx Xxxxx Windsor, Secretary of State
3304488 8100 Authentication: 1001877
010106546 Date: 03-02-01
CERTIFICATE OF INCORPORATION
OF
FORTY ACQUISITION, INC.
FIRST: The name of the corporation is Forty Acquisition, Inc.
(hereinafter the "Corporation").
SECOND: The address of the registered office of the Corporation
in the State of Delaware is 0000 Xxxxxx Xxxxxx, in the City of Wilmington,
County of New Castle. The name of its registered agent at that address is
The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware as set forth in Title 8 of
the Delaware Code (the "GCL").
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 5,000 shares of Common Stock,
each having a par value of one cent ($.01).
FIFTH: The name and mailing address of the Sole Incorporator is
as follows:
Name Address
Xxxx Xxxxxxx X.X. Xxx 000
Xxxxxxxxxx, XX 00000
SIXTH: The following provisions are inserted for the management
of the business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
(1) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the
stockholders to make, alter, amend, change, add to or repeal the
By-Laws of the Corporation.
(3) The number of directors of the Corporation shall be as from
time to time fixed by, or in the manner provided in, the By-Laws of
the Corporation. Election of directors need not be by written ballot
unless the By-Laws so provide.
(4) No director shall be personally liable to the Corporation
or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the GCL or (iv) for any transaction from
which the director derived an improper personal benefit. Any repeal
or modification of this Article SIXTH by the stockholders of the
Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to
such repeal or modification.
(5) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby
empowered to exercise all such powers and do all such acts and things
as may be exercised or done by the Corporation, subject,
nevertheless, to the provisions of the GCL, this Certificate of
Incorporation, and any By-Laws adopted by the stockholders; provided,
however, that no By-Laws hereafter adopted by the stockholders shall
invalidate any prior act of the directors which would have been valid
if such By-Laws had not been adopted.
SEVENTH: Meetings of stockholders may be held within or without
the State of Delaware, as the By-Laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the GCL)
outside the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the By-Laws of the
Corporation.
EIGHTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and
all rights conferred upon stockholders herein are granted subject to this
reservation.
I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the GCL, do
make this Certificate, hereby declaring and certifying that this is my act
and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 2nd day of March, 2001.
/s/ Xxxx Xxxxxxx
-----------------------------------------------
Xxxx Xxxxxxx
Sole Incorporator
EXHIBIT D
FORM OF RELEASE
THIS RELEASE ("Release") is being executed and delivered as of
, 2000, on behalf of [ ] (the "Releasor") to and in favor of, and for
the benefit of, [ ], a Delaware corporation ("Company"), [ ], a
Delaware corporation ("Parent"), Forty Acquisition, Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), and the
other Releasees (as defined in Section 2).
WHEREAS, pursuant to an Agreement and Plan of Merger (the
"Agreement"), dated as of March __, 2001, among Parent, Merger Sub, the
Company and the stockholders of the Company (the "Stockholders"), Merger
Sub will merge (the "Merger") with and into the Company, with the Company
surviving as the surviving corporation;
WHEREAS, upon consummation of the Merger, and
contemporaneously with the execution and delivery of this Release, the
undersigned will receive cash and/or shares of common stock, par value $.01
per share, of Parent (the "Merger Shares") in exchange for shares of common
stock, par value $.001 per share, of the Company; and
WHEREAS, Parent and Merger Sub have required, as a condition to
consummating the Merger and the other transactions contemplated by the
Agreement, that the Releasor execute and deliver this Release.
NOW, THEREFORE, in order to induce Parent and Merger Sub to
consummate the Merger and the other transactions contemplated by the
Agreement, and for other valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by the Releasor), the Releasor
hereby covenants and agrees as follows:
1. Release. Effective as of the Effective Time, Releasor, for itself and
for each of Releasor's Associated Parties (as defined below), hereby
generally, irrevocably, unconditionally and completely releases and
forever discharges each of the Releasees (as defined below) from, and
hereby irrevocably, unconditionally and completely waives and
relinquishes, any and all Released Claims (as defined below).
2. Definitions.
a. The term "Associated Parties," when used herein with respect to
Releasor, shall mean and include, to the extent that a Releasor
has the power and authority to do so, Releasor's predecessors,
successors, executors, administrators, assignees, heirs and
estate.
b. The term "Releasees" shall mean and include: (A) Parent; (B)
Merger Sub; (C) the Company; (D) each of the direct and
indirect Subsidiaries of Parent, Merger Sub and the Company;
(E) each other controlled Affiliate of Parent, Merger Sub and
the Company; and (F) the successors and past, present and
future assigns, directors, managers, officers, employees,
consultants, agents, attorneys and representatives of the
respective entities identified or otherwise referred to in
clauses (A) through (E) of this sentence (including all
officers, directors, employees, managers, managing members and
general partners of the Company and its Subsidiaries).
c. The term "Released Claims" shall mean and include each and
every dispute, claim, controversy, demand, right, obligation,
liability, action and cause of action of every kind and nature,
including any unknown, unsuspected or undisclosed claim, that
Releasor or any Associated Party of Releasor may have had in
the past, may now have or may have in the future, arising
directly or indirectly out of, or relating directly or
indirectly to, (A) Releasor's capacity or standing as a
stockholder, partner, member or manager of, or Releasor's
ownership of capital stock, partnership interests, membership
interests or other equity interests in, the Company or any of
its Subsidiaries or any of their respective predecessors, or
(B) any of the Charter Documents of the Company or any of its
Subsidiaries or any of their respective predecessors or any of
the Listed Agreements; provided that the above release shall
not apply to (A) any right that party may hereafter have as
stockholder of the Parent or (B) any right that a party may
have under the Agreement or the Registration Rights Agreement.
d. Capitalized terms not otherwise defined in this Release shall
have the meaning assigned to them in the Agreement.
3. Representations and Warranties. Releasor represents and warrants that:
a. Releasor has not assigned, transferred, conveyed or otherwise
disposed of any Released Claim against any of the Releasees, or
any direct or indirect interest in any such Released Claim, in
whole or in part;
b. to the best of Releasor's knowledge, no other person or entity
has any interest in any of the Released Claims being released
by Releasor or its Associated Parties; and
c. no Associated Party of Releasor has or had any Released Claim
against any of the Releasees.
4. Miscellaneous.
a. This Release sets forth the entire understanding of the parties
relating to the subject matter hereof and supersedes all prior
agreements and understandings among or between Releasor and any
of the Releasees relating to the subject matter hereof.
b. If any provision of this Release or any part of any such
provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (i) such provision or
part thereof shall, with respect to such circumstances and in
such jurisdiction, be deemed amended to conform to applicable
laws so as to be valid and enforceable to the fullest possible
extent, (ii) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such
jurisdiction shall not affect the validity or enforceability of
such provision or part thereof under any other circumstances or
in any other jurisdiction, and (iii) such invalidity or
enforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such
provision or the validity or enforceability of any other
provision of this Release. Each provision of this Release is
separable from every other provision of this Release, and each
part of each provision of this Release is separable from every
other part of such provision.
c. This Release shall be construed in accordance with, and
governed in all respects by, the laws of the State of Delaware
as such laws apply to an agreement made and performed in such
state between Delaware residents (without giving effect to
principles of conflicts of laws).
d. This Release may be executed in several counterparts, each of
which shall constitute an original and all of which, when taken
together, shall constitute one agreement.
e. Each Releasor shall execute and/or cause to be delivered to
each Releasee such instruments and other documents, and shall
take such other actions, as such Releasee may reasonably
request for the purpose of carrying out or evidencing any of
the actions contemplated by this Release.
f. If any legal action or other legal proceeding relating to this
Release or the enforcement of any provision hereof is brought
by any Releasor or Releasee, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and
disbursements to the extent actually incurred (in addition to
any other relief to which the prevailing party may be
entitled).
g. Whenever required by the context, the singular number shall
include the plural, and vice versa; the masculine gender shall
include the feminine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
h. Any rule of construction to the effect that ambiguities are to
be resolved against the drafting party shall not be applied in
the construction or interpretation of this Release.
i. As used in this Release, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of
limitation, and shall be deemed to be followed by the words
"without limitation."
j. The section headings herein are for convenience only and shall not
affect the construction or interpretation of this Release.
IN WITNESS WHEREOF, the Releasor has caused this Release to be
executed as of the date first above written.
[RELEASOR]
By: ________________________
(Signature)
Name of Releasor: ___________________________
(Please Print)
Name of Signatory: __________________________
(if Releasor is an Entity)
Title of Signatory: _________________________
(if Releasor is an Entity)
