COOPERATION AGREEMENT
Exhibit 2.2
This Cooperation Agreement (this “Agreement”), dated as of April 18, 2008, is made by
and among DTV HSP Merger Sub, Inc., a Delaware corporation (“Merger Sub”), 180 Connect
Inc., a Delaware corporation (the “Company”), and UniTek USA, LLC, a Delaware limited
liability company (“UniTek”).
RECITALS
WHEREAS, the Company, Merger Sub and DirecTV Enterprises, LLC, a Delaware limited liability
company and the parent of Merger Sub (“Purchaser”), are parties to that certain Agreement
and Plan of Merger, dated as of the date hereof (as amended from time to time, the “Merger
Agreement”), pursuant to which Merger Sub has agreed to merge with and into the Company, with
the Company surviving and becoming a wholly owned subsidiary of Purchaser;
WHEREAS, the Company has been advised by Merger Sub that Merger Sub and UniTek, are parties to
that certain Asset Purchase and Exchange Agreement, dated as of the date hereof (as amended from
time to time, the “Purchase Agreement”), pursuant to which UniTek and Merger Sub have
agreed to sell, purchase and exchange certain assets and liabilities following the closing of the
transactions contemplated by the Merger Agreement; and
WHEREAS, Merger Sub and UniTek desire that the Company cooperate with and provide certain
assistance to Merger Sub and UniTek in connection with the transactions contemplated by the
Purchase Agreement, and the Company is willing to so cooperate and provide such assistance in
exchange for the consideration described below and upon the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set
forth herein, Merger Sub, UniTek and the Company hereby agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.1 Certain Definitions.
For purposes of this Agreement, the following terms shall have the meanings specified in this
Section 1.1:
“180 Connect Business” means, individually or together, the 180 Connect Cable Business
and the 180 Connect Satellite Business.
“180 Connect Cable Business” means the business engaged in by the Company and/or its
Subsidiaries exclusively with respect to the provision of cable services to residential and
commercial subscribers as conducted on the date of this Agreement and as of the closing date under
the Purchase Agreement.
“180 Connect Satellite Business” means the business engaged in by the Company and/or
its Subsidiaries involving or with respect to the provision of satellite services to
residential and
commercial subscribers by the Company and/or its Subsidiaries primarily out of
those office locations set forth on Schedule 1.1 attached hereto, as conducted on the date
of this Agreement and as of the closing date under the Purchase Agreement.
Section 1.2 Other Defined Terms.
Capitalized terms used in this Agreement and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Merger Agreement.
ARTICLE II
COVENANTS
COVENANTS
Section 2.1 Access to Information. At the request of Merger Sub or UniTek, the
Company shall, and shall cause each of its Subsidiaries to, afford to UniTek and its officers,
employees, counsel, financial advisors and other representatives prompt, reasonable access during
normal business hours to all of the Company’s and its Subsidiaries’ properties, books, contracts,
commitments, personnel and records to the extent related to or used in the 180 Connect Business
and, during such period, the Company shall, and shall cause each of its Subsidiaries to, furnish as
promptly as practicable to UniTek such information concerning the businesses, properties, financial
condition, operations and personnel related to or used in the 180 Connect Business as Merger Sub or
UniTek may from time to time reasonably request; provided that the Company may restrict the
foregoing access to the extent that any Legal Requirement applicable to the Company or its
Subsidiaries requires that the Company or its Subsidiaries restrict access to any properties,
personnel or information; and provided further, that the Company may restrict the foregoing access
to the extent necessary to prevent unreasonable interference with the ongoing operations of the
Company. UniTek agrees to reimburse the Company for any reasonable out-of-pocket expenses incurred
by the Company in connection with the foregoing upon delivery by the Company to UniTek of receipts
or invoices therefor.
Section 2.2 Consents. Subject to the terms and conditions of Section 2.1, at the
request of Merger Sub or UniTek, the Company shall, and shall cause its Subsidiaries to, provide
information and access to and introduce and coordinate contacts for Merger Sub and UniTek, and
participate in any discussions with Merger Sub, UniTek and any third parties, in connection with
Merger Sub’s and UniTek’s efforts to obtain any consent, waiver, approval, Permit, authorization,
filing or notification necessary in connection with the transactions contemplated by the Purchase
Agreement. Notwithstanding the foregoing, in no event shall the Company be obligated to pay any
fees in connection with the foregoing and Merger Sub and UniTek hereby agree and acknowledge that
the Company’s compliance with the foregoing shall in no way guarantee that any consent, waiver,
approval, Permit, authorization or filing shall be obtained or approved on terms acceptable to
Merger Sub or UniTek, if at all.
Section 2.3 Publicity. At the request of Merger Sub or UniTek, the Company shall, and
shall cause each of its Subsidiaries and Affiliates to, include in any press release or any public
announcement concerning the Merger Agreement or the transactions contemplated thereby language
stating that UniTek, and not the Purchaser or Merger Sub, is acquiring the 180 Connect Business.
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Section 2.4 Cooperation with UniTek Financing. Subject to the terms and conditions of
Section 2.1, at the request of Merger Sub or UniTek the Company shall (a) provide to UniTek data
and information (in the forms then-maintained by the Company) in connection with UniTek’s
modification of its existing senior credit facilities, or any new or additional financing desired
by UniTek to be undertaken, in connection with the transactions contemplated by the Purchase
Agreement and (b) respond on a timely basis to reasonable inquiries relating to such data and
information in connection therewith.
Section 2.5 Notification of Certain Actions and Proceedings; Monthly Financial
Statements. The parties hereto agree that Merger Sub may provide to UniTek (a) copies of the
Proxy Statement, any related proxy materials or any amendment or supplement thereto, prepared
pursuant to Section 5.2 of the Merger Agreement and delivered to Merger Sub or Purchaser, (b)
copies of all written documentation, including Actions, Merger Sub or Purchaser receives from the
Company pursuant to Sections 5.11 or 5.12 of the Merger Agreement, and (c) the monthly financial
statements provided by the Company to Purchaser pursuant to Section 5.13 of the Merger Agreement.
Section 2.6 Consideration; Payment. In consideration of the covenants and agreements
set forth herein, UniTek shall pay to the Company, on or before April 25, 2008, the sum of One
Thousand Dollars (US$1,000), by wire transfer of immediately available funds into the account set
forth on Exhibit A attached hereto.
Section 2.7 Coordination. To the extent reasonably practicable, Merger Sub and UniTek
shall coordinate any of their respective requests under this Agreement and the Merger Agreement.
ARTICLE III
TERMINATION
TERMINATION
Section 3.1 Termination. Prior to the Effective Time, this Agreement will
automatically be terminated and cease to have any force or effect on the earlier of (a) the date on
which the Company is notified by Merger Sub or UniTek that the Purchase Agreement has been
terminated for any reason, or (b) the termination of the Merger Agreement for any reason.
ARTICLE IV
MISCELLANEOUS
MISCELLANEOUS
Section 4.1 Specific Performance. The obligations of the Company under this Agreement
shall be enforceable by a decree of specific performance issued by any court of competent
jurisdiction, and appropriate injunctive relief may be applied for and granted in connection
therewith. The Company agrees that if it contests any such application for relief applied for by
Merger Sub or UniTek that the Company, and not Merger Sub or UniTek, shall have the burden of proof
that its breach of this Agreement has not caused or will not cause irreparable harm to Merger Sub
or UniTek, as applicable, and that neither Merger Sub or UniTek have other adequate remedies at
law. The foregoing remedies shall be cumulative and not exclusive and shall be in addition to any
other remedies which Merger Sub or UniTek may have under this Agreement or otherwise.
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Section 4.2 Entire Agreement; Conflicts. This Agreement constitutes the entire
agreement of the parties hereto and supersedes any and all prior and contemporaneous agreements,
memoranda, arrangements and understandings, both written and oral, between the parties, or either
of them, with respect to the subject matter hereof. No representation, warranty, promise,
inducement or statement of intention has been made by any party which is not contained in this
Agreement and no party shall be bound by, or be liable for, any alleged representation, promise,
inducement or statement of intention not contained herein or therein. The parties hereto
acknowledge and agree that a breach of any provision of this Agreement by the Company shall not
constitute a breach under the Merger Agreement.
Section 4.3 Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given to a party if delivered
in person or sent by overnight delivery (providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as shall be specified by like notice) on
the date of delivery, or if by facsimile, upon confirmation of receipt:
| If to Merger Sub: | DirecTV, Inc. | |||
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| Attention: J. Xxxxxxx Xxxxxx | ||||
| Telecopier: 000-000-0000 | ||||
| With a copy (which shall not | O’Melveny & Xxxxx LLP | |||
| constitute notice) to: | 000 Xxxxx Xxxx Xx. | |||
| Xxx Xxxxxxx, XX 00000 | ||||
| Attention: Xxxx X. Xxxx, Esq. and Xxxxxxxxx Xxx, Esq. | ||||
| Telecopier: 000-000-0000 | ||||
| If to the Company: | 180 Connect Inc. | |||
| 0000 Xxxx Xxxxxxxxx Xxx. | ||||
| Xxxxx 000 | ||||
| Xxxxxxxxx, XX 00000 | ||||
| Attention: Xxxxx Xxxxxxxxx | ||||
| Telecopier: 000-000-0000 | ||||
| With a copy (which shall not | XxXxxxxxx, Will & Xxxxx, LLP | |||
| constitute notice) to: | 000 Xxxxxxx Xxx. | |||
| Xxx Xxxx, XX 00000 | ||||
| Attention: Xxxx X. Xxxxxxxx, Esq. | ||||
| Telecopier: 000-000-0000 | ||||
| If to UniTek: | UniTek USA, LLC | |||
| Gwynedd Hall | ||||
| 0000 Xxxxxx Xxxxxxx Xxxx, Xxxxx 000 | ||||
| Blue Xxxx, Pennsylvania 19422 | ||||
| Attention: Xxxxx Xxxxx | ||||
| Facsimile: (000) 000-0000 |
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| With a copy (which shall not | Weil, Gotshal & Xxxxxx LLP | |||
| constitute notice) to: | 000 Xxxxxxxx Xxxxx, Xxxxx 000 | |||
| Xxxxxx, Xxxxx 00000-0000 | ||||
| Attention: S. Xxxxx Xxxxx | ||||
| Facsimile: (000) 000-0000 |
Section 4.4 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties and their respective successors and
permitted assigns. No party to this Agreement may assign its rights or delegate its obligations
under this Agreement, whether by operation of law or otherwise, to any other Person without the
express prior written consent of the other party hereto; provided that Merger Sub may assign its
rights under this Agreement to another Subsidiary or Affiliate of Purchaser and UniTek may assign
its rights under this Agreement to a Subsidiary or Affiliate of UniTek (so long as UniTek has also
made an assignment of its rights under the Purchase Agreement to such Subsidiary or Affiliate).
Any such assignment or transfer made without the prior written consent of the other party hereto
shall be null and void.
Section 4.5 No Third Party Rights. Nothing in this Agreement, whether express or
implied, is intended to or shall confer any rights, benefits or remedies under or by reason of this
Agreement on any Persons other than the parties and their respective successors and permitted
assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or
liability of any third Persons to any party hereto, nor shall any provisions give any third Persons
any right or subrogation over or action against any party.
Section 4.6 Confidentiality. Any and all information provided to UniTek by the
Company pursuant to this Agreement shall be subject in all respects to the provisions of the
Amended and Restated Confidentiality Agreement between the Company and UniTek dated as of February
29, 2008.
Section 4.7 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without giving effect to the
conflicts of law provisions thereof. Each of the parties hereto irrevocably and unconditionally
agrees to be subject to, and hereby consents and submits to, the jurisdiction of federal and state
courts in the State of Delaware for the purposes of any suit, action or other proceeding arising
out of this Agreement or any of the transactions contemplated hereby
Section 4.8 Severability. If any provision or any part of any provision of this
Agreement shall be void or unenforceable for any reason whatsoever, then such provision shall be
stricken and of no force and effect. However, unless such stricken provision goes to the essence
of the consideration bargained for by a party, the remaining provisions of this Agreement shall
continue in full force and effect and, to the extent required, shall be modified to preserve their
validity. Upon such determination that any term or other provision or any part of any provision is
void or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent possible.
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Section 4.9 Headings. The Article, Section and paragraph headings contained in this
Agreement are for reference purposes only and do not form a part of this Agreement and do not in
any way modify, interpret or construe the intentions of the parties.
Section 4.10 Amendments; Waivers. This Agreement may only be amended pursuant to a
written agreement executed by each of the parties, and no waiver of compliance with any provision
or condition of this Agreement and no consent provided for in this Agreement shall be effective
unless evidenced by a written instrument executed by the party against whom such waiver or consent
is to be effective. No waiver of any term or provision of this Agreement shall be construed as a
further or continuing waiver of such term or provision or any other term or provision.
Section 4.11 Counterparts. To facilitate execution, this Agreement may be executed in
any number of counterparts (including by facsimile transmission), each of which shall be deemed to
be an original, but all of which together shall constitute one binding agreement on the parties,
notwithstanding that not all parties are signatories to the same counterpart.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their duly
authorized representatives.
| DTV HSP MERGER SUB, INC. | ||||||
| By: | /s/ J. Xxxxxxx Xxxxxx | |||||
| Name: J. Xxxxxxx Xxxxxx | ||||||
| Title: Senior Vice President | ||||||
| 180 CONNECT INC. | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: Chief Executive Officer | ||||||
| UNITEK USA, LLC | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Name: Xxxxx X. Xxxxxxx | ||||||
| Title: Authorized Signatory | ||||||
[Signature Page to Cooperation Agreement]
SCHEDULE 1.1
| 1. | 0000 Xxxx Xxxxx, Xxxxx 0 Xxxxxxxx, XX 00000 | |
| 2. | 00000 X. 00xx Xxxxxx Xxxxx 000, Xxxxxxx, XX 00000 | |
| 3. | 000 X Xxxxxx, Xxxxxx, XX 00000 | |
| 4. | 0000 X. 00xx Xxxxxx, Xxxx X, Xxxx XX 00000 | |
| 5. | 000 Xxxxxxx Xxxxxx, Xxxx X, Xxxxxxxx, XX 00000 | |
| 6. | 0000 X Xxxx Xxxx, Xxxxxx 000 & 000, Xxxxxxx, XX 00000 | |
| 7. | 3707-A SW, XX 00 Xxx Xxxxxxxxx, Xxxx Xxxxxxx, XX 00000 | |
| 8. | 0000 X. Xxxx Xxxxx Xxx., Suites X-00 & X-00, Xxx Xxxxx, XX 00000 | |
| 9. | 0000 Xxxxx Xxxx, Units 14,15 and 16, Xxxx, XX 00000 | |
| 10. | 0000 Xxxxxx Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000 | |
| 11. | 00 Xxxxx Xxxxxxxx Xxx, Xxxxx 0, Xxxxxxxxx, XX 00000 | |
| 12. | 000 Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 |
