1
EXHIBIT 2.1
[EXECUTION COPY]
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AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
LISN HOLDINGS, INC.,
ORIUS CORP.,
AND
ORIUS MERGER SUB., INC.
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November 8, 1999
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TABLE OF CONTENTS
PAGE
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Section 1. Authorization; Transactions...........................................................................2
1A. Authorization of Transactions Occurring on or Prior to the Closing Date.........................2
1B. Transactions Occurring on the Closing Date......................................................5
1C. Closing........................................................................................12
1D. Determination of Estimated Orius Investor Value and Estimated LISN
Investor Value.................................................................................12
1E. Post-Closing Adjustments.......................................................................13
1F. Delivery of Securities.........................................................................15
Section 2. Conditions of Obligations of LISN and Each of the LISN Shareholders and the Investors
at the Closing..........................................................................................16
2A. Representations and Warranties; Covenants......................................................16
2B. Amendment of Articles of Incorporation.........................................................16
2C. Bylaws.........................................................................................16
2D. Investor Rights Agreement......................................................................16
2E. Orius Exchange Transaction.....................................................................16
0X. Xxxxxxxx Transaction...........................................................................17
2G. New Series B Preferred Retained by HIG West....................................................17
2H. Put/Call Shares Retained by Orius Xxxxxxxxxxxx.................................................00
0X. Retained Shares................................................................................17
2J. Senior Management Agreement....................................................................18
2K. Escrow Agreement...............................................................................18
2L. Litigation.....................................................................................18
2M. Filings........................................................................................18
2N. Third Party Consents and Approvals.............................................................18
2O. Governmental Consents and Approvals............................................................18
2P. Material Adverse Change........................................................................19
2Q. Option Termination Transaction.................................................................19
2R. Opinion of Orius's Counsel.....................................................................19
2S. Opinion of Special Counsel to Orius Stockholders...............................................19
2T. Senior Debt Financing..........................................................................19
2U. Senior Subordinated Debt Financing.............................................................19
2V. Proceedings....................................................................................20
2W. Closing Documents..............................................................................20
2X. Waiver.........................................................................................20
Section 3. Conditions of the Obligations of Orius and the Orius Stockholders at the Closing.....................21
3A. Representations and Warranties; Covenants......................................................21
3B. Put/Call Shares Retained by Orius Stockholders.................................................21
3C. Litigation.....................................................................................21
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3D. Filings........................................................................................21
3E. Third Party Consents and Approvals.............................................................21
3F. Governmental Consents and Approvals............................................................22
3G. Opinion of LISN's Counsel......................................................................22
3H. Investment Transaction.........................................................................22
3I. HIG Transactions...............................................................................22
3J. Material Adverse Change........................................................................22
3K. Closing Certificates...........................................................................22
3L. Waiver.........................................................................................23
Section 4. Pre-Closing Covenants and Agreements.................................................................23
4A. General........................................................................................23
4B. Maintenance of Business........................................................................23
4C. Third Party Notices and Consents...............................................................23
4D. Governmental Notices and Consents..............................................................23
4E. Operation of Business..........................................................................23
4F. Full Access....................................................................................24
4G. Compliance with Agreements and Laws............................................................25
4H. Payment of Xxxxxxxxxxx.........................................................................00
0X. Notice of Material Developments................................................................25
4J. Exclusivity....................................................................................25
4K. Tax Matters....................................................................................26
Section 5. Representations and Warranties of Orius..............................................................27
5A. Organization, Corporate Power and Licenses.....................................................27
5B. Capital Stock and Related Matters..............................................................27
5C. Subsidiaries; Investments......................................................................28
5D. Authorization; No Breach. .....................................................................29
5E. Financial Statements...........................................................................29
5F. Absence of Undisclosed Liabilities.............................................................30
5G. Accounts Receivable............................................................................30
5H. Service Warranty; Service Xxxxxxxxxxxxxx.......................................................00
0X. Service Liability..............................................................................31
5J. No Material Adverse Effect.....................................................................31
5K. Absence of Certain Developments................................................................31
5L. Assets.........................................................................................33
5M. Tax Matters....................................................................................33
5N. Contracts and Commitments......................................................................35
5O. Intellectual Property Rights...................................................................38
5P. Litigation, etc................................................................................39
5Q. Brokerage......................................................................................40
5R. Insurance......................................................................................40
5S. Employees......................................................................................40
5T. ERISA..........................................................................................41
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5U. Compliance with Laws; Permits; Certain Operations..............................................42
5V. Environmental and Safety Matters...............................................................43
5W. Affiliated Transactions........................................................................44
5X. Suppliers and Customers........................................................................44
5Y. Real Property..................................................................................44
5Z. Regulatory Status. ............................................................................46
5AA. Merger Sub.....................................................................................46
5BB. Disclosure.....................................................................................47
5CC. Closing Date...................................................................................47
Section 6. Representations and Warranties of LISN..............................................................47
6A. Organization, Corporate Power and Licenses.....................................................48
6B. Capital Stock and Related Matters..............................................................48
6C. Subsidiaries; Investments......................................................................49
6D. Authorization; No Breach. .....................................................................49
6E. Financial Statements...........................................................................50
6F. Absence of Undisclosed Liabilities.............................................................50
6G. Accounts Receivable............................................................................51
6H. Service Warranty; Service Xxxxxxxxxxxxxx.......................................................00
0X. Service Liability..............................................................................51
6J. No Material Adverse Effect.....................................................................51
6K. Absence of Certain Developments................................................................52
6L. Assets.........................................................................................53
6M. Tax Matters....................................................................................54
6N. Contracts and Commitments......................................................................56
6O. Intellectual Property Rights...................................................................59
6P. Litigation, etc................................................................................60
6Q. Brokerage......................................................................................60
6R. Insurance......................................................................................60
6S. Employees......................................................................................61
6T. ERISA..........................................................................................61
6U. Compliance with Laws; Permits; Certain Operations..............................................63
6V. Environmental and Safety Matters...............................................................63
6W. Affiliated Transactions........................................................................64
6X. Suppliers and Customers........................................................................64
6Y. Real Property..................................................................................65
6Z. Regulatory Status. ............................................................................66
6AA. Disclosure.....................................................................................67
6BB. Closing Date...................................................................................67
Section 7. Indemnification and Certain Other Agreements........................................................67
7A. Survival of Representations and Warranties.....................................................67
7B. General Indemnification. ......................................................................68
7C. Right to Offset Indemnity Obligations Against Outstanding Securities. .........................72
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7D. Defense of Third Party Claims. ................................................................73
7E. Legend on Orius Securities Subject to Indemnification..........................................75
7F. Press Release and Announcements. ..............................................................75
7G. Confidentiality................................................................................76
7H. Further Assurances.............................................................................76
Section 8. Definitions..........................................................................................76
Section 9. Termination..........................................................................................91
9A. Conditions of Termination......................................................................91
9B. Effect of Termination..........................................................................93
Section 10. Miscellaneous..................................................................................93
10A. Fees and Expenses..............................................................................93
10B. Remedies.......................................................................................93
10C. Transfer of Restricted Securities..............................................................94
10D. Consent to Amendments..........................................................................95
10E. Successors and Assigns.........................................................................95
10F. Severability...................................................................................96
10G. Counterparts...................................................................................96
10H. Descriptive Headings; Interpretation...........................................................96
10I. Entire Agreement...............................................................................96
10J. No Third-Party Beneficiaries...................................................................96
10K. Schedules......................................................................................96
10L. Cooperation on Tax Matters.....................................................................97
10M. Schedules and Exhibits.........................................................................97
10N. Governing Law; Jurisdiction and Venue; Service of Process; Waiver of Right to Jury
Trial..........................................................................................97
10O. Notices........................................................................................99
10P. No Strict Construction........................................................................102
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EXHIBITS AND SCHEDULES
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Exhibits:
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Exhibit A - Articles of Incorporation
Exhibit B(i) - List of LISN Shareholders
Exhibit B(ii) - List of LISN Noteholders
Exhibit B(iii) - List of LISN Optionholders
Exhibit C - Form of Orius Junior Subordinated Note
Exhibit D - List of Investors
Exhibit E - Investment Agreement
Exhibit F - Certificate of Merger
Exhibit G - Note Exchange Agreement
Exhibit H - LISN Transmittal Letter
Exhibit I(iv) - Orius Joinder and Transmittal Agreement (Full Strip)
Exhibit I(v) - Orius Joinder and Transmittal Agreement (Securities Only)
Exhibit J(i) - Orius Joinder and Transmittal Agreement (Cash)
Exhibit J(ii) - Orius Joinder and Transmittal Agreement (Warrants)
Exhibit K - Orius Call Agreement
Exhibit L - Pledge and Voting Agreement
Exhibit M - Purchase Agreement
Exhibit N - Bylaws
Exhibit O - Investor Rights Agreement
Exhibit P - New Incentive Stock and Option Plan and Stock Option Agreement
Exhibit Q - Opinion of Counsel for Orius
Exhibit R - Opinion of Special Counsel to Orius Stockholders (White & Xxxxxxxx)
Exhibit S - Opinion of Special Counsel to Orius Stockholders (Xxxxx & Xxxxxxx)
Exhibit T - Bank Commitment Letter
Exhibit U - Bridge Loan Commitment Letter
Exhibit V - Orius Put Agreement
Exhibit W - Opinion of Counsel for LISN
Exhibit X - Lost Certificate Affidavit and Indemnity
Exhibit Y - Escrow Agreement
Exhibit Z(i) - HIG Put Agreement
Exhibit Z(ii) - HIG Call Agreement
Exhibit Z(iii) - HIG Pledge and Voting Agreement
Orius Stockholders Schedule
Orius Warrantholders Schedule
Orius Optionholders Schedule
LISN Shareholders Schedule
Orius Bonus Schedule
Disclosure Schedules:
Orius:
Orius Capitalization Schedule
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Orius Investments and Orius Subsidiaries Schedule
Orius Restrictions Schedule
Orius Financial Statements Schedule
Orius Liabilities Schedule
Orius Accounts Receivable Schedule
Orius Service Liability Schedule
Orius Developments Schedule
Orius Assets Schedule
Orius Taxes Schedule
Orius Contracts Schedule
Orius Intellectual Property Schedule
Orius Litigation Schedule
Orius Insurance Schedule
Orius Employees Schedule
Orius Employee Benefits Schedule
Orius Compliance Schedule
Orius Permits Schedule
Orius Environmental Schedule
Orius Affiliated Transactions Schedule
Orius Suppliers and Customers Schedule
Orius Real Property Schedule
Orius Indemnification Schedule
LISN:
LISN Organization, Corporate Power and Licenses Schedule
LISN Capitalization Schedule
LISN Investments and LISN Subsidiaries Schedule
LISN Restrictions Schedule
LISN Financial Statements Schedule
LISN Liabilities Schedule
LISN Accounts Receivable Schedule
LISN Service Liability Schedule
LISN Developments Schedule
LISN Assets Schedule
LISN Taxes Schedule
LISN Contracts Schedule
LISN Intellectual Property Schedule
LISN Litigation Schedule
LISN Insurance Schedule
LISN Employees Schedule
LISN Employee Benefits Schedule
LISN Compliance Schedule
LISN Permits Schedule
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LISN Environmental Schedule
LISN Affiliated Transactions Schedule
LISN Suppliers and Customers Schedule
LISN Real Property Schedule
LISN Indemnification Schedule
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement")
is entered into as of November 8, 1999, by and among Orius Corp., a Florida
corporation ("Orius"), Orius Merger Sub., Inc., an Ohio corporation and a
wholly-owned subsidiary of Orius ("Merger Sub"), and LISN Holdings, Inc., an
Ohio Corporation ("LISN"). Each capitalized term used and not otherwise defined
herein has the meaning given to such term in Section 8 below.
Subject to the terms and conditions set forth herein, the
parties hereto, and certain other Persons described herein, desire to consummate
each of the following: (i) H.I.G. Cable, Inc., a Cayman Islands corporation
("HIG Cable"), desires to sell to LISN, Inc., an Ohio corporation ("Purchaser")
for cash, and Purchaser desires to purchase from HIG for cash, certain shares of
Orius Series A Preferred Stock, par value $.01 per share ("Orius Series A
Preferred") and the Orius Convertible Note (as further described below, the
"Purchase Transaction"); (ii) H.I.G. Cable West, Inc., a Cayman Islands
corporation ("HIG West" and, collectively with HIG Cable, "HIG"), desires to
enter into an agreement with Purchaser (as further described below, the "HIG Put
Agreement") pursuant to which at HIG West's election at a future date HIG West
will be entitled to sell to Purchaser for cash all of its shares of Orius Series
B Preferred Stock, par value $.01 per share ("Orius Series B Preferred"), which
shares constitute all interests in Orius held by HIG other than those which HIG
sells to Purchaser as contemplated by clause (i), and Purchaser desires to enter
into an agreement with HIG West pursuant to which at Purchaser's election HIG
West will be obligated to sell to Purchaser for cash the Orius Series B
Preferred (as further described below, the "HIG Call Agreement"); (iii) holders
of Orius common stock, $.01 par value per share (the "Orius Common Stock"),
desire to exchange certain shares of such common stock for certain newly
authorized junior subordinated notes of Orius (as further described below, the
"Orius Junior Notes") and Orius Series C Participating Preferred Stock, par
value $.01 per share (as further described below, the "Series C Participating
Preferred") and cash; (iv) certain holders of Orius Common Stock desire to enter
into an agreement with Orius (as further described below, collectively, the
"Orius Put Agreements") pursuant to which, at each such holder's election at a
future date, such holder will be entitled to sell to Orius certain shares of
Orius Common Stock for cash, Series C Participating Preferred and Orius Junior
Notes, and Orius desires to enter into an agreement with each such holder (as
defined below, collectively, the "Orius Call Agreements") pursuant to which, at
Orius's election, each such holder will be obligated to sell to Orius such Orius
Common Stock for cash, Series C Participating Preferred and Orius Junior Notes,
as specified therein; (v) certain holders of Orius Common Stock, and the holders
of all outstanding Orius Warrants (each of such Persons listed on the Orius
Warrantholders Schedule hereto, an "Orius Warrantholder", and all of such
Persons collectively, the "Orius Warrantholders"), desire to sell to Orius for
cash, and Orius desires to purchase from such Persons for cash, all of their
shares of Orius Common Stock and Orius Warrants; (vi) Orius desires to acquire
LISN, and LISN desires to be acquired by Orius, by means of a merger of Merger
Sub with and into LISN, with LISN surviving such merger, and with all of LISN's
outstanding common stock (other than the Vanke Shares, which shall remain
outstanding after the LISN Merger), and preferred stock being converted thereby
into shares of Orius Class B Common Stock, par value $.01 per share (the "Orius
Class B Common" and, collectively with the Orius Common Stock, the "Orius
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Common") and Series C Participating Preferred (as further described below, the
"LISN Merger"), with all outstanding options to acquire LISN common stock being
converted thereby into options to acquire Orius Class B Common and Series C
Participating Preferred, and by means of an exchange of Orius Junior Notes for
all outstanding LISN junior subordinated notes, and all accrued and unpaid
interest thereon (as further described below, the "Note Exchange" and,
collectively with the New LISN Note Exchange and the LISN Merger, the "LISN
Merger Transactions"); (vii) Orius desires to terminate all outstanding Orius
employee stock options contemporaneously with the consummation of the foregoing
transactions and make certain cash payments to the holders thereof; and (viii)
Orius and LISN desire to finance the transactions contemplated hereby, including
related fees and expenses, and to refinance all of their respective existing
senior bank debt, through (A) the issuance by certain Subsidiaries of Orius and
LISN of senior debt and senior subordinated debt and (B) the issuance and sale
by LISN to Xxxxxx Xxxxx and others (collectively, as further described below,
the "Investors") of New LISN Notes (as further described below, the "Investment
Transaction"). The New LISN Notes issued to the Investors at or prior to the
Closing pursuant to the Investment Transaction will be converted into Orius
Class B Common, Series C Participating Preferred and Orius Junior Notes pursuant
to the LISN Merger (as further described below, the "New LISN Note Exchange").
NOW, THEREFORE, in consideration of the mutual covenants,
agreements and understandings herein contained, the Parties hereby agree as
follows:
Section 1. Authorization; Transactions.
1A. Authorization of Transactions Occurring on or Prior
to the Closing Date.
(i) Prior to the Closing Date, Orius shall authorize and
duly file under the laws of the State of Florida an amended and restated
articles of incorporation of Orius in the form of Exhibit A attached hereto (the
"Articles of Incorporation"), and the Articles of Incorporation shall be in full
force and effect under the laws of the State of Florida as of the Closing.
(ii) Orius shall authorize the issuance, upon consummation
of the LISN Merger, of:
(a) the number of shares of Orius Class B Common, and
the number of shares of Series C Participating Preferred, which shall
be issuable in the aggregate upon the conversion pursuant to the LISN
Merger of 90,275.68 outstanding shares of LISN Class B Common Stock,
par value $.01 per share ("LISN Common"), and 90,879.51 outstanding
shares of LISN Series A Preferred Stock, par value $.01 per share
("LISN Preferred"), with each of the foregoing amounts subject to
adjustment as described below;
(b) options to purchase the number of shares of Orius
Class B Common and the number of shares of Series C Participating
Preferred pursuant to the New Incentive Stock and Option Plan and the
Form of Stock Option Agreement attached hereto as Exhibit P (the
"Converted LISN Employee Options"), which upon consummation of the LISN
Merger shall be issuable in the aggregate upon conversion of the
2,905.55 shares of LISN
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Class A Common Stock which are subject to issuance under those
outstanding options to purchase shares of LISN Common set forth on
Exhibit B(iii) hereto (the "Existing LISN Employee Options");
(c) in exchange for the outstanding LISN 12% Junior
Subordinated Notes, which are in the form originally issued pursuant to
the LISN Recapitalization Agreement and are held by the LISN
Noteholders in the initial principal amounts set forth on Exhibit B(ii)
hereto (collectively, the "LISN Junior Notes"), including all accrued
and unpaid interest thereon, Orius Junior Notes in an aggregate
principal amount equal to the aggregate principal amount of, plus
accrued and unpaid interest on, the LISN Junior Notes exchanged
therefor; and
(d) the number of shares of Orius Class B Common and
shares of Series C Participating Preferred, and Orius Junior Notes in
the initial principal amount, issuable in the aggregate to the
Investors pursuant to the Note Exchange Agreement, in exchange for the
New LISN Notes issued to the Investors at or prior to the Closing
pursuant to the Investment Agreement.
(iii) Orius shall authorize the issuance and delivery to
the Persons listed on the Orius Stockholders Schedule attached hereto (such
Persons, collectively with HIG, the "Orius Stockholders", and each of the Orius
Stockholders individually, an "Orius Stockholder"), the number of shares of
Series C Participating Preferred and Orius Junior Notes in an initial principal
amount, and an amount of cash, which will be issuable hereunder in the aggregate
in exchange for delivery to Orius by such Persons pursuant to the Full Strip
Joinder Agreements of an aggregate of 12,221,939.72 shares of Orius Common
(including in such aggregate amount the 4.5% of such number of shares of Orius
Common Stock which will be delivered but retained by and returned to the holder
thereof following such exchange), the number of shares of Series C Participating
Preferred and Orius Junior Notes in an initial principal amount which will be
issuable hereunder in the aggregate in exchange for delivery to Orius by such
Persons pursuant to the Securities Only Joinder Agreements of an aggregate of
41,443.67 shares of Orius Common Stock (including in such aggregate amount the
9% of such number of shares of Orius Common Stock which will be delivered but
retained by and returned to the holder thereof following such exchange), and the
aggregate amount of cash which will be issuable hereunder in the aggregate in
exchange for delivery to Orius by such Persons pursuant to the Cash Joinder
Agreements of an aggregate of 1,088,467.61 shares of Orius Common Stock;
(iv) Orius shall authorize the delivery to the
Warrantholders of the aggregate amount of cash which will be issuable hereunder
in the aggregate in exchange for delivery to Orius by such Persons pursuant to
the Warrant Joinder Agreements of an aggregate of Orius Warrants exercisable for
an aggregate of 371,853.11 shares of Orius Common Stock;
(v) Orius shall authorize the issuance, pursuant to the
New Incentive Stock and Option Plan and the form of Stock Option
Agreement attached hereto as Exhibit P, an aggregate number of shares
of Orius Common Stock, including shares of Orius Common Stock subject
to issuance upon exercise of options (the "New Orius Options"), equal
to
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5.00% of the Orius Common issued and outstanding upon consummation of
the LISN Merger and the other transactions contemplated by this
Agreement (after giving effect to the consummation of the repurchase of
shares which are subject to the HIG Call Agreement and the HIG Put
Agreement, the repurchase of shares which are subject to Orius Call
Agreements and Orius Put Agreements and the repurchase of the Vanke
Shares, and treating all shares of Orius stock which are held by
Purchaser or any of Orius's other Subsidiaries as not outstanding) as
follows: (x) New Orius Options for shares representing 1.25% of the
Orius Common (calculated as described above) shall be reserved for
grant to employees of Orius and its Subsidiaries which are hired after
the Effective Time, and (y) New Orius Options for shares representing
3.0% of the Orius Common (calculated as described above) shall be
reserved for issuance to current employees of Orius, in each case as
recommended by Orius's chief executive officer and subject to approval
by Orius's board of directors, and (z) Orius Common representing 0.75%
of the Orius Common (calculated as described above) shall be reserved
for issuance to Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx") pursuant to the terms
of the Senior Management Agreement (the "Xxxxxxxx Employment and Stock
Agreement") to be executed by Orius and Xxxxxxxx at or prior to the
Closing.
(vi) Orius shall authorize and reserve for issuance upon
conversion of the shares of Series C Participating Preferred issuable at the
Closing and the shares of Series C Participating Preferred issuable upon
exercise of the Orius Call Agreements and (without duplication) the Orius Put
Agreements, as well as the shares of Series C Participating Preferred issuable
upon exercise of the Converted LISN Employee Options, the aggregate number of
shares of Orius Series D Preferred and Orius Common, and the aggregate amount of
Orius Junior Notes, issuable upon conversion thereof.
(vii) LISN shall authorize the issuance to the Investors,
pursuant to the Investment Agreement, in exchange for the Investment Amount in
cash, LISN Notes in the form of Exhibit D hereto in an aggregate initial
principal amount equal to the Investment Amount (the "New LISN Notes").
(viii) LISN shall cause the Purchaser, its indirectly held
Subsidiary, to authorize the execution of the HIG Put Agreement in the form of
Exhibit Z(i) hereto (the "HIG Put Agreement") with HIG West, dated as of the
date hereof, pursuant to which at HIG West's election at a future date HIG West
will be entitled to sell to Purchaser for cash all of outstanding shares of
Orius Series B Preferred, as well as the HIG Call Agreement in the form of
Exhibit Z(ii) hereto (the "HIG Call Agreement") pursuant to which at Purchaser's
election HIG West will be obligated to sell to Purchaser for cash the Orius
Series B Preferred, and the performance by Purchaser of its obligations
thereunder.
(ix) LISN's articles of incorporation were amended to
authorize 60,000 shares of Class C Common Stock, par value $.01 per share (the
"LISN Class C Common"), for issuance to Xxxxxx X. Xxxxx as trustee of the Xxxxxx
X. Xxxxx Revocable Electing Small Business Trust (dated December 25, 1998)
("Vanke") in exchange for the 56,746.90 shares of LISN common stock held by
Vanke subject to repurchase by LISN pursuant to Section 2.2(d) of the
Recapitalization Agreement dated as of May 28, 1999 between and among LISN,
LISN, Inc., Xxxxx, Xxxxx X.
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Xxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxx Xxxxx & Partners II, L.P., Xxxxxx Xxxxx &
Partners Dutch, L.P.,and the other parties listed on the signature pages
thereto, as amended, such issuance and exchange to occur prior to the LISN
Merger (the "Vanke Exchange").
1B. Transactions Occurring on the Closing Date.
(i) Investment Transaction. Pursuant to, and on the terms
and subject to the conditions of the Investment Agreement in the form
attached hereto as Exhibit E and dated as of the date hereof, by and
among LISN and the Investors (the "Investment Agreement"), immediately
prior to the Closing LISN shall sell to each Investor, and each
Investor shall purchase from LISN, New LISN Notes in the initial
principal amount set forth opposite such Person's name on Exhibit D
hereto, in each case in exchange for the amount of cash set forth
opposite such Investor's name on the Exhibit D attached hereto, payable
in the manner set forth in the Investment Agreement (the "Investment
Transaction").
(ii) The Vanke Exchange. Prior to the Closing, LISN and
Vanke may consummate the Vanke Exchange.
(iii) The LISN Merger Transactions.
(a) The LISN Merger. At the Closing, and upon
satisfaction of the conditions to closing set forth below, Orius,
Merger Sub and LISN shall execute and file with the Secretary of State
in the State of Ohio the Certificate of Merger attached hereto as
Exhibit F (the "Certificate of Merger"). Upon the filing of such
Certificate of Merger with the Secretary of State of the State of Ohio
(the date and time of such filing, the "Effective Time"), the Merger
Sub shall be merged with and into LISN, the separate corporate
existence of Merger Sub shall cease, and LISN, as the surviving
corporation of such merger (the "LISN Merger"), shall continue to exist
under the corporate name it possesses immediately prior to the
Effective Time. At the Effective Time, (x) the outstanding shares of
LISN Common will convert by operation of law into an aggregate number
of shares of Orius Class B Common equal to the LISN Common Stockholders
Common Share Number and an aggregate number of shares of Series C
Participating Preferred equal to the LISN Common Stockholders Preferred
Share Number, with each outstanding share of LISN Common converting
into a proportionate amount of the LISN Common Stockholders Common
Share Number of shares (or fraction thereof) of Orius Class B Common
and a proportionate amount of the LISN Common Stockholders Preferred
Share Number of shares (or fraction thereof) of Series C Participating
Preferred, (y) the outstanding shares of LISN Preferred will convert by
operation of law into an aggregate number of shares of Series C
Participating Preferred equal to the LISN Preferred Stockholders
Preferred Share Number, with each outstanding share of LISN Preferred
converting into a proportionate amount of the LISN Preferred
Stockholders Preferred Share Number of shares (or fraction thereof) of
Series C Participating Preferred, and (z) the Existing LISN Employee
Options will convert by operation of law into the Converted LISN
Employee Options. For the avoidance of doubt, the parties acknowledge
that if the Vanke Exchange has been consummated prior to the Closing,
then the Vanke Shares will be LISN Class C Common and, notwithstanding
any other provision hereof, will
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not convert into any other security or consideration upon consummation
of the LISN Merger and shall remain outstanding thereafter subject to
repurchase by LISN pursuant to the LISN Recapitalization Agreement. For
the avoidance of doubt, the sum of the LISN Common Stockholders
Preferred Share Number and the LISN Preferred Stockholders Preferred
Share Number issued at the Effective Time shall not exceed the LISN
Shareholders Preferred Share Number.
(b) The Note Exchanges. On the terms and subject to
the conditions set forth in the Note Exchange Agreement in the form
attached hereto as Exhibit G (the "Note Exchange Agreement"), as of the
Effective Time Orius shall issue:
(1) to each of the Persons listed on Exhibit
B(ii) attached hereto (collectively, the "LISN Noteholders" and each
individually a "LISN Noteholder") who is party thereto and delivers to
Orius LISN Junior Notes to Orius in the aggregate initial principal
amount set forth opposite such Person's name on Exhibit B(ii) hereto in
accordance with such Agreement, Orius Junior Notes in an aggregate
principal amount equal to the aggregate principal amount of, plus
accrued and unpaid interest on, the LISN Junior Notes so exchanged,
calculated through the Effective Time (such exchange of LISN Junior
Notes for Orius Junior Notes, the "Junior Note Exchange"), and
(2) against delivery of the New LISN Notes
issued to the Investors pursuant to the Investment Agreement, and to
the holders thereof in exchange therefor, (A) an aggregate number of
shares of Orius Class B Common equal to the quotient determined by
dividing (i) nine percent (9%) of the aggregate principal amount of the
New LISN Notes issued at or prior to the Closing pursuant to the
Investment Agreement by (ii) the Orius Common Value Per Share, (B) an
aggregate number of shares of Series C Participating Preferred equal to
the Investor Preferred Number, and (C) Orius Junior Notes in the
aggregate initial principal amount equal to the Investor Note Amount
(the "New LISN Note Exchange" and, collectively with the Junior Note
Exchange and the LISN Merger, the "LISN Merger Transactions").
(c) Issuance and Delivery of LISN Merger Transactions
Consideration. As of the Effective Time, to each Person holding LISN
Common or LISN Preferred (collectively, the "LISN Shareholders") who
delivers a LISN Transmittal Letter and Agreement in the form attached
hereto as Exhibit H (the "LISN Transmittal Letter") and, in accordance
with the terms and conditions set forth in the instructions thereto,
surrenders to Orius therewith the number of shares of LISN Common and
the number of shares of LISN Preferred set forth opposite such Person's
name on Exhibit B(i) hereto, as well as LISN Junior Notes in the
aggregate initial principal amount to be exchanged by such Person as
set forth opposite such Person's name on Exhibit B(i) hereto pursuant
to the Note Exchange, in each case under the caption "LISN Securities",
Orius shall issue the shares of Orius Class B Common and shares of
Series C Participating Preferred into which such shares of LISN Common
converted in the LISN Merger, the number of shares of Series C
Participating Preferred into which such shares of LISN Preferred
converted in the LISN Merger, and Orius Junior Notes in an aggregate
initial principal amount equal to the aggregate principal amount
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of, plus accrued and unpaid interest on, such LISN Junior Notes so
delivered. At the written request of any such LISN Shareholder that
Orius deliver to such LISN Shareholder prior to the final determination
of Closing LISN Investor Value pursuant to Section 1E below,
certificates for the securities issued to such Person in accordance
with the foregoing, Orius shall (x) promptly deliver to such Person
Orius Junior Notes issued to such Person pursuant to the Note Exchange
Agreement, and (y) certificates representing the shares of Orius Class
B Common and shares of Series C Participating Preferred issued upon
conversion of such shares of LISN Common and LISN Preferred held by
such Person immediately prior to the Effective Time, in amounts
estimated pursuant to Section 1D, but only if such Person has executed
and delivered to Orius a written agreement satisfactory to Orius to
return such certificates to Orius upon final determination of the
Closing LISN Investor Value pursuant to Section 1E if so requested by
Orius in exchange for new certificates representing amounts of
securities adjusted as contemplated by Section 1E. Each certificate
issued pursuant to this subsection in an amount estimated pursuant to
Section 1D shall bear a legend stating that the amount of securities
represented thereby is subject to such adjustment and that such
certificate shall be surrendered to Orius at such time as the amount of
such securities is finally determined in accordance with Section 1E.
Further, by operation of law each outstanding LISN Option shall become
a Converted LISN Employee Option.
(iv) Exchange of Orius Common for "Full Strips". To each of
the Orius Stockholders who has executed and delivered to Orius on or prior to
the date hereof an Orius Joinder and Transmittal Agreement (Full Strip) in the
form attached hereto as Exhibit I(iv) and dated as of the date hereof (each a
"Full Strip Joinder Agreement", and all such Full Strip Joinder Agreements,
collectively, the "Full Strip Joinder Agreements"), and who has delivered to
Orius at or prior to the Closing the certificates, duly endorsed for transfer as
required by such Full Strip Joinder Agreements, representing the number of
outstanding shares of Orius Common set forth opposite such Person's name on the
Orius Stockholders Schedule hereto under the heading "Full Strip Exchange",
Orius shall, at the Closing:
(a) deliver cash in an amount equal to 95% of the
Full Strip Cash Consideration Per Old Common Share, as estimated
pursuant to Section 1D, multiplied by such number of outstanding shares
of Orius Common Stock set forth opposite such Person's name on the
Orius Stockholders Schedule hereto under the heading "Full Strip
Exchange;
(b) issue the number of shares of Series C
Participating Preferred equal to the Full Strip Preferred Consideration
Per Old Common Share multiplied by such number of outstanding shares of
Orius Common Stock set forth opposite such Person's name on the Orius
Stockholders Schedule hereto under the heading "Full Strip Exchange";
(c) issue Orius Junior Notes in an aggregate
principal amount equal to the Full Strip Junior Note Consideration Per
Old Common Share multiplied by such number of outstanding shares of
Orius Common Stock set forth opposite such Person's name on the Orius
Stockholders Schedule hereto under the heading "Full Strip Exchange";
and
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(d) promptly after the determination of Closing Orius
Investor Value and Closing LISN Investor Value pursuant to Section 1E,
Orius shall return to such Orius Stockholder the number of shares of
Orius Common Stock equal to four and one-half percent (4.5%) multiplied
by such number of outstanding shares of Orius Common Stock set forth
opposite such Person's name on the Orius Stockholders Schedule hereto
under the heading "Full Strip Exchange" and originally tendered by such
Orius Stockholder to Orius.
At the Closing, contemporaneously with delivering to each of the Orius
Stockholders the cash consideration described in (a) above, Orius will
deliver to the Escrow Agent pursuant to subsection (ix) below, 5% of
the Full Strip Cash Consideration Per Old Common Share, as estimated
pursuant to Section 1D, multiplied by the number of outstanding shares
of Orius Common Stock set forth opposite such Person's name on the
Orius Stockholders Schedule hereto under the heading "Full Strip
Exchange."
FOR EXAMPLE: If (i) the Orius Common Value Per Share is $10,
the Note Proportion is 35% and the Preferred Stock Proportion
is 55%, and (ii) the number of outstanding shares of Orius
Common Stock set forth opposite the name of an Orius
Stockholder on the Orius Stockholders Schedule hereto under
the heading "Full Strip Exchange" is 100, and such Orius
Stockholder executes and delivers to Orius a Full Strip
Joinder Agreement in respect of such 100 shares, and at the
Closing delivers to Orius certificates representing such 100
shares, endorsed as required under the Joinder Agreement, then
Orius will deliver to such Orius Stockholder at the Closing,
$475 in cash (i.e., 95% of the product of 50% multiplied by
100 shares multiplied by $10 per share) and, after final
determinations pursuant to Section 1E, Orius Junior Notes in
an aggregate initial principal amount equal to $175 (i.e., 35%
multiplied by 50% multiplied by 100 shares multiplied by $10
per share) and 0.275 shares of Series C Participating
Preferred (i.e., 55% multiplied by 50% multiplied by 100
shares multiplied by $10 per share, divided by $1,000). Orius
would return to such Orius Stockholder 4.5 shares of Orius
Common Stock. At the Closing, Orius would also deliver $25 in
cash (i.e., 5% of the product of 50% multiplied by 100 shares
multiplied by $10 per share) to the Escrow Agent pursuant to
subsection (ix) below. If the assumptions set forth in clause
(i) are confirmed pursuant to the procedures described in
Section 1E, upon confirmation thereof the Escrow Agent will
pay to such Orius Stockholder the $25, subject only to the
other restrictions on distribution set forth in the Escrow
Agreement. If, pursuant to the procedures described in Section
1E, it is determined that the Orius Common Value Per share is
$9.90 and the other assumptions stated above are correct, the
Escrow Agent would immediately refund to Orius $5 in respect
of such Orius Stockholder (i.e., the excess of $500, the
aggregate cash paid by Orius to such Orius Stockholder and to
the Escrow Agent in respect of such
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Orius Stockholder, over $495, the total amount of cash to
which such Orius Stockholder is entitled (i.e., 50% multiplied
by 100 shares multiplied by $9.90 per share). Also, upon such
a determination, the number of shares of Series C
Participating Preferred and amount of Orius Junior Notes
issuable to such Orius Stockholder would be recalculated (to
be .27225 share and $173.25 principal amount) and delivered in
lieu of the amounts previously delivered.
(v) Exchange of Orius Common for "Securities Only". To each of
the Orius Stockholders who has executed and delivered to Orius on or prior to
the date hereof an Orius Joinder and Transmittal Agreement (Securities Only) in
the form attached hereto as Exhibit I(v) and dated as of the date hereof (each a
"Securities Only Joinder Agreement", and all such Securities Only Joinder
Agreements, collectively, the "Securities Only Joinder Agreements"), and who has
delivered to Orius at or prior to the Closing the certificates, duly endorsed
for transfer as required by such Securities Only Joinder Agreements,
representing the number of outstanding shares of Orius Common Stock set forth
opposite such Person's name on the Orius Stockholders Schedule hereto under the
heading "Securities Only Exchange", and who has deposited (or for whom a deposit
has been made) with the Escrow Agent, cash in an amount equal to 2.5% of the
value at Closing of the Orius securities to be issued to such Stockholder
pursuant to subparagraphs (a), (b) and (c) below, Orius shall, at the Closing:
(a) issue the number of shares of Series C
Participating Preferred equal to the Securities Only Preferred
Consideration Per Old Common Share multiplied by such number of
outstanding shares of Orius Common Stock set forth opposite such
Person's name on the Orius Stockholders Schedule hereto under the
heading "Securities Only Exchange";
(b) issue Orius Junior Notes in an aggregate
principal amount equal to the Securities Only Junior Note Consideration
Per Old Common Share multiplied by such number of outstanding shares of
Orius Common Stock set forth opposite such Person's name on the Orius
Stockholders Schedule hereto under the heading "Securities Only
Exchange"; and
(c) promptly after the determination of Closing Orius
Investor Value and Closing LISN Investor Value pursuant to Section 1E,
Orius shall return to such Orius Stockholder the number of shares of
Orius Common Stock equal to nine percent (9%) multiplied by such number
of outstanding shares of Orius Common Stock set forth opposite such
Person's name on the Orius Stockholders Schedule hereto under the
heading "Securities Only Exchange" and originally tendered by such
Orius Stockholder to Orius.
FOR EXAMPLE: If (i) the Orius Common Value Per Share as
finally determined is $10, the Note Proportion as finally
determined is 35% and the Preferred Stock Proportion as
finally determined is 55%, and (ii) the number of outstanding
shares of Orius Common Stock set forth opposite the name of an
Orius Stockholder on the Orius Stockholders Schedule hereto
under the heading "Securities Only
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Exchange" is 100, and such Orius Stockholder executes and
delivers to Orius a Securities Only Joinder Agreement in
respect of such 100 shares, and at the Closing delivers to
Orius certificates representing such 100 shares, endorsed as
required under the Joinder Agreement, then Orius will deliver
to such Orius Stockholder at the Closing, Orius Junior Notes
in an aggregate initial principal amount equal to $350 (i.e.,
35% multiplied by 100 shares multiplied by $10 per share) and
0.55 shares of Series C Participating Preferred (i.e., 55%
multiplied by 100 shares multiplied by $10 per share, divided
by $1,000), and Orius will return to such Orius Stockholder 9
shares of Orius Common Stock.
[LANGUAGE TO COME FROM A&S OR W&W RE: ESCROW DEPOSIT]
(vi) Sale of Orius Common Stock and Orius Warrants for
Cash. To each of the Orius Stockholders who has executed and delivered to Orius
on or prior to the date hereof an Orius Joinder and Transmittal Agreement (Cash)
in the form attached hereto as Exhibit J(i) and dated as of the date hereof
(each a "Cash Joinder Agreement", and all such Cash Joinder Agreements,
collectively, the "Cash Joinder Agreements"), and who has delivered to Orius at
or prior to the Closing the certificates, duly endorsed for transfer as required
by such Cash Joinder Agreements, representing the aggregate number of
outstanding shares of Orius Common Stock set forth opposite such Person's name
on the Orius Stockholders Schedule hereto under the heading "Cash Exchange", and
to each of the Orius Warrantholders who has executed and delivered to Orius on
or prior to the date hereof an Orius Joinder and Transmittal Agreement
(Warrants) in the form attached hereto as Exhibit J(ii) and dated as of the date
hereof (each a "Warrant Joinder Agreement", and all such Warrant Joinder
Agreements, collectively, the "Warrant Joinder Agreements"), and who has
delivered to Orius at or prior to the Closing Orius Warrants exercisable for the
aggregate number of shares of Orius Common Stock set forth opposite such
Person's name on the Orius Stockholders Schedule hereto under the heading "Cash
Exchange", Orius shall deliver at the Closing:
(a) for each such share of Orius Common Stock, cash in an
amount equal to 95% of the Orius Common Value Per Share, as estimated
pursuant to Section 1D; and
(b) for each such Orius Warrant, cash in an amount equal
to 95% of the product of (1) the Orius Common Value Per Share, as estimated
pursuant to Section 1D, less the exercise price per share of Orius Common Stock
set forth opposite such person's name on the Orius Stockholders Schedule for
such Orius Warrant, multiplied by (2) the Share Number for such Orius Warrant.
At the Closing, contemporaneously with delivering to each of
such Orius Stockholders and Orius Warrantholders the cash consideration
described in (a) or (b) above, Orius will deliver to the Escrow Agent pursuant
to subsection (xi) below, (y) with respect to each such Orius Stockholder, 5% of
the Orius Common Value Per Share, as estimated pursuant to Section 1D,
multiplied by the number of outstanding shares of Orius Common Stock set forth
opposite such Person's name on the Orius Stockholders Schedule hereto under the
heading "Cash Exchange", and
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(z) with respect to each Orius Warrant held by an Orius Warrantholder, Orius
will deliver to the Escrow Agent pursuant to subsection (xi) below, 5% of the
product of (1) the Orius Common Value Per Share, as estimated pursuant to
Section 1D, less the exercise price per share of Orius Common Stock set forth
opposite such person's name on the Orius Stockholders Schedule for such Orius
Warrant, multiplied by (2) the Share Number for such Orius Warrant.
(vii) Orius Put/Call Transactions. Each of the Orius
Stockholders who has executed and delivered to Orius prior to the Closing a Call
Agreement in the form attached hereto as Exhibit K and dated as of the date
hereof (a "Orius Call Agreement" and each Orius Call Agreement executed by an
Orius Stockholder collectively, the "Orius Call Agreements") with respect to the
number of shares of Orius Common Stock set forth opposite such Person's name on
the Orius Stockholders Schedule hereto under the heading "Orius Put/Call", shall
execute and deliver to Orius at or prior to the Closing a Pledge and Voting
Agreement in the form of Exhibit L hereto and dated as of the date hereof (a
"Pledge and Voting Agreement" and, collectively with all such agreements
executed by Orius Stockholders, including by HIG West in connection with the HIG
Put Agreement and the HIG Call Agreement, the "Pledge and Voting Agreements")
with respect to such number of outstanding shares of Orius Common Stock set
forth opposite such Person's name on the Orius Stockholders Schedule hereto
under the heading "Orius Put/Call", as well as the certificates, duly endorsed
for transfer as required by such Pledge and Voting Agreement.
(viii) Purchase Transaction. Pursuant to, and on the terms
and subject to the conditions of the Purchase Agreement by and between Purchaser
and HIG Cable, which agreement is attached hereto as Exhibit M (the "Purchase
Agreement"), HIG Cable shall deliver to Purchaser the certificates representing
the 10,000 outstanding shares of Orius Series A Preferred, duly endorsed for
transfer or accompanied by duly executed stock powers as required pursuant to
the Purchase Agreement, and the Orius Convertible Note, also endorsed for
transfer as required pursuant to the Purchase Agreement, in exchange for (the
"Purchase Transaction") cash in an amount equal to 95% of the sum of (a) the
product of (y) 3,809,455.35 (i.e., the aggregate number of shares of Orius
Common issuable upon conversion of the Orius Series A Preferred plus the
aggregate number of shares of Orius Common Stock issuable upon conversion of the
Orius Convertible Note), multiplied by (z) the Orius Common Value Per Share, as
estimated pursuant to Section 1D, plus (b) the aggregate of the amount of
dividends and interest which have accrued and are unpaid with respect to such
stock and Orius Convertible Note as of the Closing, and a payment to the Escrow
Agent of cash in an amount equal to 5% of the sum of (a) and (b) immediately
preceding. As provided in the Purchase Agreement, at such time as Orius Common
Value Per Share is finally determined pursuant to Section 1E, the amounts paid
pursuant to the preceding sentence shall be adjusted in the manner set forth in
Schedule 1E. Immediately following the expiration of the exercise periods set
forth in the HIG Call Agreement and the HIG Put Agreement, the Purchaser shall
deliver to Orius, for retirement and cancellation without payment or other
consideration therefor, the certificates representing such 10,000 shares of
Orius Series A Preferred and the Orius Convertible Note.
(ix) HIG Call Agreement. Immediately following the
exercise of the HIG Call Agreement or the HIG Put Agreement, the Purchaser shall
deliver to Orius, for retirement and cancellation without payment or other
consideration therefor, the certificates representing such 7,596.38 shares of
Orius Series B Preferred.
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(x) Termination of Existing Orius Options. Pursuant to
Section 6(k) of the Existing Stock Option Plan and Section 10 of each of the
Existing Option Agreements pursuant to which Orius has granted employee stock
options, effective as of the Effective Time Orius shall terminate each then
outstanding Existing Orius Option to the extent it has not theretofore been
exercised in full. At such time as the Orius Option Spread Value for each
Existing Orius Option has been finally determined pursuant to Section 1E below,
against delivery to Orius of any canceled Existing Orius Option, Orius shall
deliver (A) to the Escrow Agent an amount in cash equal to the Escrow Amount Per
Share multiplied by the Share Number in respect of such option, and (B) to the
holder of such canceled option an aggregate cash amount equal to the excess of
Orius Option Spread Value for such option (as finally determined pursuant to
Section 1E ) over the amount to be delivered to the Escrow Agent in respect of
such option pursuant to clause (A) foregoing. The transactions described in this
subparagraph are collectively referred to herein as the "Option Termination
Transaction."
(xi) Escrow Arrangements. At the Closing, Orius and
Purchaser will deliver to SunTrust Bank, South Florida, N.A. (the "Escrow
Agent"), in its capacity as escrow agent pursuant to the Escrow Agreement in the
form of Exhibit Y hereto (the "Escrow Agreement") dated as of November 8, 1999
by and among H.I.G. Capital Management, Inc., HIG Cable, HIG West, the other
Orius Stockholders, Purchaser, Orius and the Escrow Agent, cash as specified in
subsections (iv), (v), (vi), (viii), and (x) above.
1C. Closing. Unless this Agreement has previously been
terminated in accordance with Section 9 below, the closing of the LISN Merger
Transactions, the Exchange Transaction and the Purchase Transaction (the
"Closing") shall take place at the offices of Xxxxxxxx & Xxxxx, located at 000
Xxxx Xxxxxxxx, Xxxxxxx, Xxxxxxxx, or at such other place as may be mutually
agreeable to each of the Parties, at 10:00 a.m., local time, on December 15,
1999, or, if any of the conditions to Closing set forth in Section 2 and Section
3 below have not been satisfied or waived by the Party entitled to the benefit
thereof on or prior to such date, on the second business day following the
satisfaction or waiver of such conditions (the "Closing Date").
1D. Determination of Estimated Orius Investor Value and
Estimated LISN Investor Value.
(i) Estimated Orius Net Indebtedness. Not more than five
(5) Business Days, but in no event less than two (2) Business Days, before the
Closing Date, Orius shall deliver to LISN a balance sheet of Orius as of the
close of business on the day before the Closing Date prepared in accordance with
GAAP based on Orius's then available financial information and reasonable
estimates of Orius's chief financial officer (the "Estimated Orius Closing
Balance Sheet"), and a certificate of Orius's chief financial officer setting
forth his estimate of Orius's Net Indebtedness as of the close of business on
the day before the Closing Date and supporting detail, including each item of
such Indebtedness, and confirming that the aggregate amount of cash payable to
Orius upon exercise of all Existing Orius Options which, as of the Effective
Time, are outstanding and unexercised (the "Aggregate Orius Option Exercise
Price") is $4,228,402.50. If the LISN Shareholder Representative or the LISN
Investor Representative disagrees with any amount set forth on such certificate,
Orius's chief financial officer and such Representatives will negotiate in good
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faith to resolve their differences, each such amount will be revised to be
mutually acceptable to such persons and the resulting estimate of Orius's Net
Indebtedness shall be deemed to be "Estimated Orius Net Indebtedness".
(ii) Estimated LISN Net Indebtedness. Not more than five (5)
Business Days, but in no event less than two (2) Business Days, before the
Closing Date, LISN shall deliver to the Orius Stockholders Representative a
balance sheet of LISN as of the close of business on the day before the Closing
Date prepared in accordance with GAAP based on LISN's then available financial
information and reasonable estimates of LISN's chief financial officer (the
"Estimated LISN Closing Balance Sheet"), and a certificate of LISN's chief
financial officer setting forth his estimate of LISN's Net Indebtedness as of
the close of business on the day before the Closing Date and supporting detail,
including each item of such Indebtedness. If the Orius Stockholders
Representative disagrees with any amount set forth on such certificate, LISN's
chief financial officer and such Representatives will negotiate in good faith to
resolve their differences, each such amount will be revised to be mutually
acceptable to such persons and the resulting estimate of LISN's Net Indebtedness
shall be deemed to be "Estimated LISN Net Indebtedness".
(iii) Definition of Net Indebtedness. For purposes hereof,
"Net Indebtedness" of any Person means the aggregate amount of such Person's
Indebtedness determined on a consolidated basis in accordance with GAAP,
assuming for such purposes that the full amount thereof shall be repaid on such
date, less the aggregate amount of cash or Cash Equivalents held by such Person
and its Subsidiaries on a consolidated basis, as reflected in its books and
records in accordance with GAAP, in each case determined as of the close of
business on the day before the Closing Date and without giving effect to the
Investment Transaction, the Purchase Transaction, or the transactions
contemplated by any of Orius Put Agreements, Orius Call Agreements, the HIG Put
Agreement and the HIG Call Agreement.
(iv) Definition of Estimated Investor Value. For purposes of
this Agreement:
(a) "Estimated Orius Investor Value" means (i) the
product of 8.42 times $57.55 million (Orius's estimated EBITDA for the
twelve-month period ending December 31, 1999) less (ii) the Estimated
Orius Net Indebtedness, plus (iii) the Aggregate Orius Option Exercise
Price.
(b) "Estimated LISN Investor Value" means the product
of 8.42 times $30.0 million (LISN's estimated EBITDA for the
twelve-month period ending December 31, 1999) less the Estimated LISN
Net Indebtedness
1E. Post-Closing Adjustments.
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(i) Determination of Closing Orius Investor Value and Closing
LISN Investor Value.
(a) Within 10 business days after the Closing Date, Orius will
prepare, and deliver to the Representatives its calculation of Orius's Net
Indebtedness and LISN's Net Indebtedness, the Aggregate Orius Option Exercise
Price, and the resulting Closing Orius Investor Value and Closing
LISN Investor Value (the "Orius Notice"). Orius will make available to the
Representatives and their advisors all records and work papers used in preparing
the materials so delivered to such Representative. If any Representative
disagrees with the computation of Orius's Net Indebtedness or LISN's Net
Indebtedness, or with any other determination, such Representative may, within
five (5) days after receipt of Orius Notice to such Representative, deliver a
notice (an "Objection Notice") to Orius setting forth such Representative's
objection to Orius's calculation which is the subject of the Objection Notice,
and the basis for such objection. Upon receipt of any Objection Notice relating
to Orius's Net Indebtedness from any Representative, Orius will promptly deliver
copies thereof to each other Representative, and upon receipt of any Objection
Notice relating to the LISN Net Indebtedness from the Orius Stockholders
Representative, the LISN Shareholder Representative or the Investor
Representative, Orius will promptly deliver copies thereof to each of the other
of such three Representatives. Orius and the Representatives will use reasonable
efforts to resolve any disagreements as to the computation of Orius's Net
Indebtedness, LISN's Net Indebtedness or any other amount, as applicable, but if
they do not obtain a final resolution within ten (10) days after Orius has
delivered the Objection Notices (if any are so received) in accordance with the
foregoing sentence, Orius and the Representatives will jointly retain either of
Deloitte & Touche LLP or Xxxxxx Xxxxxxxx (such selected firm, the "Firm") to
resolve any remaining disagreements. Orius and the Representatives will direct
the Firm to render a determination within 10 days of its retention and Orius,
the Representatives and their respective agents will cooperate with the Firm
during its engagement. The Firm will consider only those items and amounts
identified in the Objection Notices which Orius and the Representatives are
unable to resolve. In resolving any disputed item, the Firm may not assign a
value to any item greater than the greatest value for such item claimed by Orius
or any Representative or less than the smallest value for such item claimed by
Orius or any Representative. The Firm's determination will be based solely on
presentations by Orius and the Representatives (i.e., not on independent
review), and in accordance with GAAP. The determination of the Firm will be
conclusive and binding upon Orius, the Representatives, the LISN Shareholders,
the Orius Stockholders and the Investors. The costs and expenses of the Firm
shall be allocated by the Firm, on the basis deemed to be equitable by the Firm,
to Orius or LISN and, for purposes of the adjustments contemplated hereby,
treated as Net Indebtedness of Orius or LISN as of the end of the day
immediately preceding the Closing Date. The amount of Orius's Net Indebtedness
and LISN's Net Indebtedness, as each is finally determined pursuant to this
Section, is referred to herein as the "Final Orius Net Indebtedness" and the
"Final LISN Net Indebtedness," respectively.
(ii) For purposes of this Agreement:
(a) "Closing Orius Investor Value" means (i) the
product of 8.42 times $57.55 million (Orius's estimated EBITDA for the
twelve-month period ending December 31, 1999) less (ii) the Final Orius
Net Indebtedness, plus (iii) the Aggregate Orius Option Exercise Price.
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(b) "Closing LISN Investor Value" means the product
of 8.42 times $30.0 million (LISN's estimated EBITDA for the
twelve-month period ending December 31, 1999) less the Final LISN Net
Indebtedness.
(iii) Adjustments Based Upon Closing LISN Investor Value and
Closing Orius Investor Value. If and to the extent that Closing LISN Investor
Value deviates from Estimated LISN Investor Value, or Closing Orius Investor
Value deviates from Estimated Orius Investor Value, Orius shall deliver notice
thereof (the "Final Consideration Notice") to each of the Representatives,
stating (a) Closing Orius Investor Value, the Orius Common Value Per Share and
Closing LISN Investor Value, as finally determined, (b) the number of shares of
Orius Common, the number of shares of Series C Participating Preferred and the
aggregate initial principal amount of Orius Junior Notes to which each LISN
Shareholder was entitled at the Closing pursuant to this Agreement and the other
agreements contemplated hereby (the "Final LISN Consideration), (c) the number
of shares of Series C Participating Preferred, the aggregate initial principal
amount of Orius Junior Notes and the aggregate amount of cash to which each
Orius Stockholder and each Orius Warrantholder was entitled at the Closing
pursuant to this Agreement and the other agreements contemplated hereby,
including without limitation the HIG Call Agreement and the Purchase Agreement
(the "Final Orius Consideration"), (d) the Orius Option Spread Value in respect
of each Existing Orius Option, (e) if any of the Orius Stockholders or Orius
Warrantholders (or the Escrow Agent, as applicable) has theretofore received
cash, shares of Series C Participating Preferred or Orius Junior Notes, the
amount of any reconciling payment or delivery by Orius to such Orius Stockholder
or Orius Warrantholder (or the Escrow Agent, as applicable) that will be
necessary to ensure that such Orius Stockholder or Orius Warrantholder (or the
Escrow Agent, applicable) has received or will receive cash, shares of Series C
Participating Preferred and Orius Junior Notes in aggregate amounts equal to,
and not more than or less than, such Orius Stockholder's or Orius
Warrantholder's Final Orius Consideration subject to the terms of the Escrow
Agreement, and (f) if any of the LISN Shareholders has theretofore received
shares of Orius Class B Common, shares of Series C Participating Preferred or
Orius Junior Notes, the amount of any reconciling payment or delivery by Orius
or such LISN Shareholder that will be necessary to ensure that such LISN
Shareholder has received or will receive shares of Orius Class B Common, shares
of Series C Participating Preferred and Orius Junior Notes in aggregate amounts
equal to, and not more than or less than, such LISN Shareholder's Final LISN
Consideration. Orius and each of the Orius Stockholders and LISN Shareholders
will, and the Escrow Agent will agree pursuant to the Escrow Agreement to, make
such deliveries and payments promptly, and in any event within five business
days, following receipt of, and in accordance with the instructions set forth
in, the Final Consideration Notice.
1F. Delivery of Securities. Notwithstanding the foregoing
provisions requiring issuance by Orius of securities at the Closing, Orius will
not deliver any certificates or notes representing any securities issued at the
Closing until the amounts so issued are finally determined pursuant to Section
1E above; provided that at the written request of any Orius Stockholder, LISN
Shareholder or Investor to whom Orius has issued securities pursuant to Section
1B at the Closing that Orius deliver to such Person prior to the final
determinations pursuant to Section 1E above certificates for the securities
issued to such Person in accordance with such subsection, Orius shall, upon
receipt from such Person of a written agreement satisfactory to Orius to return
such certificate(s) to Orius upon final determination pursuant to Section 1E if
so requested by Orius in
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exchange for new certificates representing amounts of securities adjusted as
contemplated thereby, certificates representing the shares of Orius Common,
shares of Series C Participating Preferred and Orius Junior Notes issued in
exchange for such shares of Orius Common held by such Person immediately prior
to the Effective Time, in amounts estimated pursuant to Section 1D. Each
certificate issued pursuant to this subsection in an amount estimated pursuant
to Section 1D shall bear the legend set forth in Section 7E as well as a legend
stating that the amount of securities represented thereby is subject to such
adjustment and that such certificate shall be surrendered to Orius at such time
as the amount of such securities is finally determined in accordance with
Section 1E.
Section 2. Conditions of Obligations of LISN and Each of the
LISN Shareholders and the Investors at the Closing. The obligations of each LISN
Shareholder and each Investor who executes the Note Exchange Agreement to
consummate the Note Exchange or the New LISN Note Exchange shall be subject to
the condition that the LISN Merger shall have been, or shall contemporaneously
be, consummated in accordance with the terms of this Agreement. The obligation
of LISN to consummate the LISN Merger at the Closing is subject to the
satisfaction as of the Effective Time of the following conditions:
2A. Representations and Warranties; Covenants. The
representations and warranties contained in Section 5 hereof shall be true and
correct in all material respects at and as of the Closing as though then made
and as though the Closing Date was substituted for the date of this Agreement
throughout such representations and warranties, and Orius and the Orius
Stockholders shall have performed in all material respects all of the covenants
required to be performed by Orius and each of the Orius Stockholders prior to
the Closing.
2B. Amendment of Articles of Incorporation. Orius's Articles
of Incorporation shall have been amended, shall be in full force and effect
under the laws of the State of Florida as of the Closing and shall not have been
further amended or modified.
2C. Bylaws. Orius's Bylaws (the "Bylaws") shall have been
adopted by Orius in the form of Exhibit N attached hereto, shall be in full
force and effect as of the Closing and shall not have been amended or modified.
2D. Investor Rights Agreement. Orius and the Orius Continuing
Stockholders shall have entered into the investor rights agreement in the form
of Exhibit O attached hereto (the "Investor Rights Agreement"), and the Investor
Rights Agreement shall be in full force and effect as of the Closing and shall
not have been amended or modified.
2E. Orius Exchange Transaction. Orius, each of the Orius
Stockholders (other than HIG) shall have executed and delivered to Orius (a) a
Full Strip Joinder Agreement with respect to the number of outstanding shares of
Orius Common Stock set forth opposite its name on the Orius Stockholders
Schedule hereto under the heading "Full Strip Exchange" (except that no such
Person shall be required to execute and deliver a Full Strip Joinder Agreement
if such number is zero), (b) a Securities Only Joinder Agreement with respect to
the number of outstanding shares of Orius Common Stock set forth opposite its
name on the Orius Stockholders Schedule hereto under the
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heading "Securities Only Exchange" (except that no such Person shall be
required to execute and deliver a Securities Only Joinder Agreement if such
number is zero), and (c) a Cash Joinder Agreement with respect to the aggregate
number of outstanding shares of Orius Common Stock set forth opposite such
Person's name on the Orius Stockholders Schedule hereto under the heading "Cash
Exchange" (except that no such Person shall be required to execute and deliver a
Cash Joinder Agreement if such number is zero), and each of the Orius
Warrantholders shall have executed and delivered to Orius Orius Warrants
exercisable to acquire the aggregate number of shares of Orius Common Stock set
forth opposite such Person's name on the Orius Warrantholders Schedule hereto,
and the Joinder Agreements shall be in full force and effect as of the Closing.
The transactions contemplated by each Joinder Agreement shall have been
consummated simultaneously with the closing of the LISN Merger hereunder in
accordance with the terms and conditions of such Joinder Agreement.
0X. Xxxxxxxx Transaction. HIG Cable shall have entered into
the Purchase Agreement with Purchaser, and the Purchase Agreement shall be in
full force and effect as of the Closing. All of the conditions to the
Purchaser's obligations under the Purchase Agreement shall have been satisfied,
and the Purchase Agreement shall have been consummated simultaneously with the
closing of the LISN Merger hereunder in accordance with the terms and conditions
of the Purchase Agreement.
2G. New Series B Preferred Retained by HIG West. HIG West
shall have (i) executed and delivered to Purchaser the HIG Call Agreement with
respect to all 7,596.38 shares of Orius Series B Preferred, and such agreement
shall be in full force and effect as of the Closing, (ii) pledged to Purchaser,
to secure its obligations under the HIG Call Agreement, all of such shares of
Orius Series B Preferred, and (iii) executed and delivered to Purchaser and
Orius the Pledge and Voting Agreement in the form attached hereto as Exhibit
Z(iii) (the "HIG Pledge and Voting Agreement" with respect to the retained New
Series B Preferred in form and substance satisfactory to the Investor
Representative and its special counsel, and such agreement shall be in full
force and effect as of the Closing. In addition, all of the conditions to the
Purchaser's obligations under the HIG Put Agreement shall have been satisfied,
and all of the conditions to HIG West's obligations under the HIG Call Agreement
shall have been satisfied.
2H. Put/Call Shares Retained by Orius Stockholders. Each of
the Orius Stockholders with a number of shares set forth opposite its name on
the Orius Stockholders Schedule attached hereto under the heading "Orius
Put/Call" (i) shall have executed and delivered to Orius an Orius Call Agreement
in the form attached hereto as Exhibit K with respect to the number of shares of
Orius Common Stock set forth opposite such Person's name on the Orius
Stockholders Schedule attached hereto under the heading "Orius Put/Call", and
such agreement shall be in full force and effect as of the Closing, (ii) shall
have executed and delivered to Orius a Pledge and Voting Agreement with respect
to such retained shares of Orius Common Stock in form and substance satisfactory
to the LISN Shareholder Representative and its special counsel, and such
agreement shall be in full force and effect as of the Closing, and (iii) to
secure its obligations under such Orius Call Agreement, shall have pledged to
Orius and Purchaser, in accordance with such Pledge and Voting Agreement, such
number of shares of Orius Common Stock which are not subject to transfer to
Orius pursuant to a Joinder Agreement.
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2I. Retained Shares. Other than (i) the shares of Orius Common
Stock which are subject to sale to Orius pursuant to an Orius Call Agreement
which is in full force and effect and pledged to Orius pursuant to a Pledge and
Voting Agreement which is in full force and effect, (ii) the shares of Orius
Common Stock and Orius Warrants which are subject to transfer to Orius pursuant
to a Joinder Agreement which is in full force and effect, (iii) the shares of
Orius Series A Preferred and Orius Convertible Note which are subject to sale to
Purchaser pursuant to the Purchase Agreement, (iv) the shares of Orius Series B
Preferred which are subject to sale to Purchaser pursuant to the HIG Call
Agreement which is in full force and effect and pledged to Purchaser pursuant to
a Pledge and Voting Agreement which is in full force and effect, (v) the
Existing Orius Options, and (vi) shares of Orius Common Stock held by each Orius
Stockholder in an aggregate amount which, for any such Person, does not exceed
the amount set forth opposite such Orius Stockholder's name on the Orius
Stockholders Schedule hereto under the heading "Orius Put/Call", no shares of
Orius capital stock shall be outstanding or directly or indirectly issuable upon
exercise or conversion of, or upon exchange for, any outstanding securities or
other rights.
2J. Senior Management Agreement. Each of Xxxxxxxx and Orius
shall have executed and delivered the Xxxxxxxx Employment and Stock Agreement,
and the Xxxxxxxx Employment and Stock Agreement shall be in full force and
effect.
2K. Escrow Agreement. Each of the parties to the Escrow
Agreement shall have executed and delivered the Escrow Agreement, and the Escrow
Agreement shall be in full force and effect.
2L. Litigation. No suit, action or other proceeding shall be
pending before any court or governmental or regulatory official, body or
authority in which it is sought to restrain or prohibit the transactions
contemplated hereby or that could have a Material Adverse Effect (other than any
such suit, action or proceeding brought by any of the Parties against any of the
other Parties), and no injunction, judgment, order, decree or ruling with
respect thereto shall be in effect.
2M. Filings. Orius shall have made all material filings
required to be made by them and shall have obtained all material permits and
other authorizations required to be obtained by them under all applicable laws
(including federal and state securities laws) to consummate the transactions
contemplated by this Agreement in compliance with such laws (other than any
securities law filings required to be made after the Closing, which filings
shall be made promptly after the Closing).
2N. Third Party Consents and Approvals. Orius shall have
received or obtained all consents and approvals necessary for the consummation
of the transactions contemplated by this Agreement and the other agreements
contemplated hereby or that are required in order to prevent a breach of or
default under, a termination or modification of, or acceleration of the terms
of, any contract, agreement or document required to be listed on the attached
Orius Contracts Schedule, except in such cases in which the failure to obtain
any such consent does not or could not reasonably be expected to have a Material
Adverse Effect, but in any event shall have received or obtained consents and
approvals in respect of each of the items listed on the Orius Restrictions
Schedule
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which are marked with an asterisk (*), in each case on terms and conditions
reasonably satisfactory to the LISN Shareholder Representative and its special
counsel.
2O. Governmental Consents and Approvals. The Parties shall
have received or obtained all material governmental and regulatory consents and
approvals that are necessary for the consummation of the transactions
contemplated hereby (and in any event Orius shall have received or obtained each
of such consents and approvals which is marked with an asterisk (*) on the Orius
Restrictions Schedule), in each case on terms and conditions satisfactory to the
LISN Shareholder Representative and the Investor Representative, and the waiting
period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "Xxxx-Xxxxx-Xxxxxx Act"), shall have expired or been terminated.
2P. Material Adverse Change. Since June 30, 1999, there shall
have been no material adverse change or development in the business, financial
condition, operating results, assets, operations, business prospects, cash flow,
net worth or customer, supplier or employee relations of Orius and its
Subsidiaries on a consolidated basis which has had or could reasonably be
expected to have a Material Adverse Effect.
2Q. Option Termination Transaction. The Option Termination
Transactions shall have been consummated simultaneously with the closing of the
LISN Merger hereunder, and no options to acquire Orius Common Stock shall have
been exercised or be outstanding or exercisable.
2R. Opinion of Orius's Counsel. Orius and LISN shall have
received from counsel for Orius an opinion with respect to the matters set forth
in Exhibit Q attached hereto, which shall be addressed to Orius and LISN, dated
as of the Closing Date and in form and substance reasonably satisfactory to the
LISN Shareholder Representative and the Investor Representative and their
special counsel, and the lenders to Orius and its Subsidiaries shall be entitled
to rely thereon.
2S. Opinion of Special Counsel to Orius Stockholders. Orius
and LISN shall have received from White and Xxxxxxxx LLP, counsel for certain
Orius Stockholders (as indicated on the Orius Stockholders Schedule hereto) an
opinion with respect to the matters set forth in Exhibit S attached hereto, and
shall have received from Xxxxx & Xxxxxxx, counsel for certain Orius Stockholders
as indicated on the Orius Stockholders Schedule hereto) an opinion with respect
to the matters set forth in Exhibit S attached hereto, each of which shall be
addressed to Orius and LISN, dated as of the Closing Date and in form and
substance reasonably satisfactory to the LISN Shareholder Representative and the
Investor Representative and their special counsel, and the lenders to Orius and
its Subsidiaries shall be entitled to rely thereon.
2T. Senior Debt Financing. NATG Holdings, L.L.C., a Delaware
limited liability company and a wholly-owned Subsidiary of Orius ("NATG") and
LISN, L.L.C., a Delaware limited liability company and a wholly-owned Subsidiary
of LISN ("LISN Sub") shall have entered into with Bankers Trust Company and Bank
of America, N.A. (the "Banks") the definitive agreements contemplated by the
letter agreement by and among NATG, LISN Sub and the Banks dated November 8,
1999 attached as Exhibit T hereto (the "Bank Commitment Letter") and shall have
obtained proceeds from the senior debt financing contemplated thereby (the
"Senior Debt
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Financing") in an aggregate amount not less than $375 million (consisting of a
term loan or loans in an aggregate amount not less than $275 million and a
revolving credit facility in an aggregate amount not less than $100 million on
terms and subject to conditions substantially as set forth in the Bank
Commitment Letter and other usual and customary terms reasonably satisfactory to
the LISN Shareholder Representative and the Investor Representative.
2U. Senior Subordinated Debt Financing. NATG and LISN Sub
shall have entered into with Bankers Trust Corporation and NationsBank, L.L.C.
(the "Bridge Lenders") the definitive agreements contemplated by the letter
agreement between NATG, LISN Sub and the Bridge Lenders dated November 8, 1999
attached as Exhibit U hereto (the "Bridge Loan Commitment Letter") and shall
have obtained proceeds of the subordinated debt financing contemplated thereby
(the "Senior Subordinated Debt Financing") in an aggregate amount not less than
$100 million on terms and subject to conditions substantially as set forth in
the Bridge Loan Commitment Letter and other usual and customary terms reasonably
satisfactory to the LISN Shareholder Representative and the Investor
Representative.
2V. Proceedings. All corporate and other proceedings taken or
required to be taken by Orius, the Orius Stockholders and Merger Sub at or prior
to the Closing in connection with the transactions contemplated hereby and by
the Other Reorganization Agreements shall have been taken and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
LISN Shareholder Representative and the Investor Representative and its
respective special counsel.
2W. Closing Documents. At the Closing, Orius and Merger Sub,
as applicable, shall have delivered to LISN all of the following documents:
(i) a certificate of Orius, dated the Closing Date, stating
that the conditions specified in Section 1 and Sections 2A through 2Q have been
fully satisfied;
(ii) certified copies of the resolutions duly adopted by the
board of directors of Orius and, as applicable, each Orius Subsidiary,
authorizing the execution, delivery and performance of this Agreement and each
of the other agreements contemplated hereby (including without limitation the
Other Reorganization Agreements), the Exchange Transaction, the Orius Put/Call
Transactions, the Option Termination Transaction, the LISN Merger Transactions,
the Senior Debt Financing, the Senior Subordinated Debt Financing, the adoption
of the Articles of Incorporation, amending and restating Orius's Articles of
Incorporation, and the other transactions contemplated hereby and thereby;
(iii) certified copies of the resolutions duly adopted by
Orius's stockholders approving the adoption of the Articles of Incorporation;
(iv) certified copies of the Articles of Incorporation and the
Bylaws, each as in effect at the Closing;
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(v) copies of all consents and approvals required to be
obtained as contemplated by Section 2M or Section 2N, including in respect of
the matters marked with an asterisk (*) on the Orius Restrictions Schedule
(including all blue sky law filings and waivers of all preemptive rights and
rights of first refusal);
(vi) good standing certificates of Orius and each of its
Subsidiaries from its respective jurisdiction of incorporation and each
jurisdiction in which it is qualified to do business as a foreign corporation,
in each case dated as of a recent date prior to the Closing Date; and
(vii) such other documents relating to the transactions
contemplated by this Agreement as the LISN Shareholder Representative or its
special counsel may reasonably request.
2X. Waiver. Any condition specified in Sections 2, 4, 5 and 9
may be waived if consented to in writing by the LISN Shareholder Representative.
Section 3. Conditions of the Obligations of Orius and the
Orius Stockholders at the Closing. The obligations of Orius and of the Orius
Stockholders (other than HIG) to consummate the transactions contemplated by the
Joinder Agreements is subject to the satisfaction as of the Closing of the
following conditions:
3A. Representations and Warranties; Covenants. The
representations and warranties contained in Section 6 shall be true and correct
in all material respects at and as of the Closing as though then made and as
though the Closing Date was substituted for the date of this Agreement
throughout such representations and warranties, and LISN and the LISN
Shareholders shall have performed in all material respects all of the covenants
required to be performed by LISN and the LISN Shareholders hereunder prior to
the Closing.
3B. Put/Call Shares Retained by Orius Stockholders. Each of
the Orius Stockholders listed on the Orius Stockholders Schedule attached hereto
who has executed and delivered to Orius (x) an Orius Call Agreement, (y) an
Orius Put Agreement in the form attached hereto as Exhibit V (an "Orius Put
Agreement" and each Orius Put Agreement executed by an Orius Stockholder, other
than HIG West, collectively, the "Orius Put Agreements") and (z) a Pledge and
Voting Agreement with respect to the number of shares of Orius Common Stock set
forth opposite such Person's name on the Orius Stockholders Schedule attached
hereto under the heading "Orius Put/Call" shall have received from Orius an
irrevocable bank letter of credit, in form and substance reasonably satisfactory
to the Orius Stockholders Representative, and in an aggregate amount equal to
the product of such number of shares of Orius Common Stock which are subject to
each such Orius Stockholders' Orius Put Agreement multiplied by 90% of the Orius
Common Value Per Share.
3C. Litigation. No suit, action or other proceeding shall be
pending before any court or governmental or regulatory official, body or
authority in which it is sought to restrain or prohibit the transactions
contemplated hereby (other than any such suit, action or proceeding brought by
any of the Parties against any of the other Parties), and no injunction,
judgment, order, decree or ruling with respect thereto shall be in effect.
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3D. Filings. LISN shall have made all material filings
required to be made by it and shall have obtained all material permits and other
authorizations required to be obtained by it under all applicable laws
(including federal and state securities laws) to consummate the transactions
contemplated by this Agreement in compliance with such laws (other than any
securities law filings required to be made after the Closing, which filings
shall be made promptly after the Closing).
3E. Third Party Consents and Approvals. LISN shall have
received or obtained all consents and approvals necessary for the consummation
of the transactions contemplated by this Agreement and the other agreements
contemplated hereby or that are required in order to prevent a breach of or
default under, a termination or modification of, or acceleration of the terms
of, any contract, agreement or document required to be listed on the attached
LISN Contracts Schedule, except in such cases in which the failure to obtain any
such consent or could not reasonably be expected to have a Material Adverse
Effect, but in any event shall have received or obtained consents and approvals
in respect of each of the items listed on the LISN Restrictions Schedule which
are marked with an asterisk (*), in each case on terms and conditions reasonably
satisfactory to the Orius Stockholders Representative and its special counsel.
3F. Governmental Consents and Approvals. The Parties shall
have received or obtained all material governmental and regulatory consents and
approvals that are necessary for the consummation of the transactions
contemplated hereby (and in any event LISN shall have received or obtained each
of such consents and approvals which is market with an asterisk (*) on the LISN
Restrictions Schedule), in each case on terms and conditions satisfactory to the
Orius Stockholders Representative, and the waiting period under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"Xxxx-Xxxxx-Xxxxxx Act"), shall have expired or been terminated.
3G. Opinion of LISN's Counsel. Orius shall have received from
counsel for LISN an opinion with respect to the matters set forth in Exhibit W
attached hereto, which shall be addressed to Orius and LISN, dated as of the
Closing Date and in form and substance reasonably satisfactory to the Orius
Stockholders Representative and its special counsel, and the lenders to Orius
and its Subsidiaries shall be entitled to rely thereon.
3H. Investment Transaction. The Investment Transaction shall
have been consummated contemporaneously therewith or prior thereto.
3I. HIG Transactions. Purchaser shall have executed and
delivered to HIG Cable the Purchase Agreement and to HIG West the HIG Put
Agreement and the HIG Call Agreement and, assuming that HIG Cable shall have
executed and delivered the Purchase Agreement and satisfied all of its
obligations thereunder to be satisfied at the Closing, and HIG West shall have
executed and delivered the HIG Put Agreement, the HIG Call Agreement and the HIG
Pledge and Voting Agreement and shall have satisfied all of its obligations
thereunder to be satisfied at the Closing, the Purchaser shall have
contemporaneously delivered to HIG West the irrevocable letter of credit
required to be delivered at the Closing pursuant to the HIG Put Agreement.
3J. Material Adverse Change. Since June 30, 1999, there shall
have been no material adverse change or development in the business, financial
condition, operating results, assets,
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operations, business prospects, cash flow, net worth or customer, supplier or
employee relations of LISN which has had or could reasonably expected to have a
Material Adverse Effect.
3K. Closing Certificates.
(i) LISN Certificate. LISN shall have delivered to Orius a
certificate of an officer of LISN dated the Closing Date, stating that the
conditions specified in Section 3A through Section 3F, Section 3H and Section 3J
have been fully satisfied, and that Purchaser shall have executed and delivered
agreements as specified in Section 3I.
(ii) HIG Certificate. HIG and HIG Cable West, Inc. shall have
delivered to Orius a certificate of an officer thereof dated the Closing Date
stating that the conditions specified in Section 3I (to be performed by such
parties) have been fully satisfied.
3L. Waiver. Any condition specified in this Section 3 may be
waived if consented to in writing by Orius and the Orius Stockholders
Representative.
Section 4. Pre-Closing Covenants and Agreements. Each of the
Parties agrees as follows with respect to the period between the date of this
Agreement and the Closing:
4A. General. Each of the Parties shall, and shall cause each
of its Subsidiaries to, use its reasonable best efforts to take all action and
to do all things necessary, proper or advisable in order to consummate and make
effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the conditions set forth in Sections 2, 3 and 4
above).
4B. Maintenance of Business. Each of Orius and LISN shall, and
shall cause each of its Subsidiaries to, (i) maintain its assets in good
operating condition and repair (normal wear and tear excepted), (ii) maintain
insurance reasonably comparable to that in effect on the date of its Latest
Balance Sheet, (iii) maintain inventory, supplies and spare parts at customary
operating levels consistent with current practices, and replace in accordance
with past practice any inoperable, worn out or obsolete assets with modern
assets of comparable quality, (iv) maintain its books, accounts and records in
accordance with past custom and practice as used in the preparation of its
Latest Balance Sheet and the financial statements described in Section 5E and
Section 6E, respectively, below, and (v) maintain in full force and effect the
existence of all its Intellectual Property Rights.
4C. Third Party Notices and Consents. Each of Orius and LISN
shall use reasonable best efforts to give required notices to third parties and
obtain any consents and approvals in respect of each item listed on the Orius
Restrictions Schedule or the LISN Restrictions Schedule, which is marked with an
asterisk (*).
4D. Governmental Notices and Consents. Each of the Parties
shall give any notices to, make any filings with, and use reasonable best
efforts to obtain, any authorizations, consents and approvals of governments and
governmental agencies in connection with the matters contemplated by this
Agreement. Without limiting the generality of the foregoing, each of the Parties
shall use reasonable best efforts to obtain an early termination of the waiting
period under
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the Xxxx-Xxxxx-Xxxxxx Act, and shall make any further filings pursuant thereto
that may be necessary, proper or advisable in connection therewith, and Orius
and LISN shall pay each pay one-half of all filing fees related to any filings
under the Xxxx-Xxxxx-Xxxxxx Act in connection with the transactions contemplated
hereby.
4E. Operation of Business. Each of Orius and LISN shall, and
shall cause each of its Subsidiaries to, operate its business only in the usual
and ordinary course of business consistent with past practice and use reasonable
best efforts to preserve the goodwill and organization of its business and the
relationships with its customers, suppliers, employees and other Persons having
business relations with it. Without limiting the generality of the foregoing,
prior to the Closing, neither Orius nor LISN shall, and each shall cause its
Subsidiaries not to:
(i) take or omit to take any action that would require
disclosure under Section 5M or Section 6M, respectively, or that would otherwise
result in a breach of any of the representations, warranties or covenants made
by it or the Orius Stockholders or the LISN Shareholders, respectively, in this
Agreement or is any Orius Transmittal Letter or in any LISN Transmittal Letter,
respectively;
(ii) take any action or omit to take any action which act or
omission would reasonably be anticipated to have a Material Adverse Effect;
(iii) (a) enter into any contract out of the ordinary course
of business or restricting in any material respect the conduct of its business,
(b) make any loans or Investments (other than advances to Orius's or LISN's
employees, respectively, in the ordinary course of business consistent with past
custom and practice), (c) increase any officer's or employee's compensation,
incentive arrangements or other benefits, except for increases or bonuses made
in the ordinary course of business consistent with past custom and practice that
are set forth on the Orius Employees Schedule attached hereto or the LISN
Employees Schedule, as the case may be (it being understood, however, that no
bonuses or other extraordinary compensation may be paid (or authorized) prior to
the Closing), (d) redeem, purchase or otherwise acquire directly or indirectly
any of its issued and outstanding capital stock, or any outstanding rights or
securities exercisable or exchangeable for or convertible into its capital
stock, or make any distribution or dividend to any of its shareholders or other
Persons, (e) amend its Articles of Incorporation or bylaws or issue or agree to
issue any capital stock or any rights to acquire, or securities convertible into
or exchangeable for, any of its capital stock, (f) directly or indirectly engage
in any transaction, arrangement or contract with any officer, director,
shareholder or other insider or Affiliate of Orius and LISN, respectively, which
is not in the ordinary course of business consistent with past practice and at
arm's length, (g) execute any guaranty, issue any debt or borrow any money, or
(h) buy or sell any assets out of the ordinary course of business consistent
with past practice; or
(iv) enter into any transaction, arrangement or contract
except on an arm's-length basis in the ordinary course of business consistent
with past custom and practice.
Notwithstanding the foregoing, nothing in this Section 4E shall prohibit Orius
or LISN from taking any action or omitting to take any action as required or as
expressly contemplated by this Xxxxxxxxx.
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0X. Xxxx Xxxxxx. Each of Orius and LISN shall afford, and
shall cause each of its Subsidiaries to afford, and cause its officers,
directors, employees, attorneys, accountants and other agents to, afford, to the
other and to each other's accounting, legal and other representatives and the
potential lenders proposed by LISN, as well as their respective officers,
employees, affiliates and other agents, full and complete access at all
reasonable times and during normal business hours to other's personnel and to
business, financial, legal, tax, compensation and other data and information
concerning the other's affairs and operations; provided that all communications
by or on behalf of Orius and the Orius Stockholders with any employees of LISN
or any of its Subsidiaries shall be coordinated through Vanke, and all
communications by or on behalf of LISN and the LISN Shareholders with any
employees of Orius or any of its Subsidiaries shall be coordinated through
Xxxxxxxx or Xxxxxx Xxxxx.
4G. Compliance with Agreements and Laws. Each of Orius and LISN shall,
and shall cause each of its Subsidiaries to, (i) comply with all material
obligations pursuant to any contract or agreement, whether oral or written,
express or implied and (ii) comply with all material applicable laws.
4H. Payment of Obligations. Each of Orius and LISN shall, and shall
cause each of its Subsidiaries to, pay and discharge when payable all Taxes,
assessments and governmental charges imposed upon its properties or upon the
income or profits therefrom (in each case before the same becomes delinquent and
before penalties accrue thereon unless contested in good faith by appropriate
proceedings) and pay and discharge all claims for labor, materials or supplies
in the ordinary course of business consistent with past practice.
4I. Notice of Material Developments. Each Party shall give prompt
written notice to the other Parties of (i) any variances in any of its
representations or warranties contained in Section 5 or 6 below, (ii) any breach
of any covenant hereunder by such Party and (iii) any other material development
affecting the ability of such Party to consummate the transactions contemplated
by this Agreement.
4J. Exclusivity.
(i) Exclusivity in Favor of LISN Shareholders. Orius shall not, and
Orius shall use its reasonable best efforts to ensure that none of the Orius
Stockholders or any of Orius's or any Orius Stockholder's respective Affiliates,
representatives, officers, employees, directors, or agents shall, directly or
indirectly, (i) submit, solicit, initiate, encourage or discuss any proposal or
offer from any Person or enter into any agreement or accept any offer relating
to or consummate any (a) reorganization, liquidation, dissolution or
recapitalization of Orius, (b) merger or consolidation involving Orius, (c)
purchase or sale of any assets or capital stock (or any rights to acquire, or
securities convertible into or exchangeable for, any such capital stock) of
Orius (other than a purchase or sale of assets in the ordinary course of
business consistent with past custom and practice), (d) similar transaction or
business combination involving Orius or its assets or (e) acquisition of other
businesses, whether by the purchase of assets or by the purchase of capital
stock of another Person, except that Orius may continue discussions with respect
to proposed acquisitions, it being understood that Orius will not enter into any
binding obligation with respect thereto without
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first obtaining the prior written consent of LISN (each of the transactions
described in clauses (a) through (e), an "Orius Transaction") or (ii) furnish
any information with respect to, assist or participate in or facilitate in any
other manner any effort or attempt by any Person to do or seek to do any of the
foregoing. Notwithstanding the foregoing, the foregoing shall not limit or
restrict in any way any communications between any of Orius, LISN, the Orius
Stockholders, the LISN Shareholders and the legal, accounting or other
professional advisors or lenders to any of the foregoing for the purpose of
facilitating the transactions contemplated by this Agreement. Orius shall notify
the LISN Shareholders immediately if any Person makes any proposal, offer,
inquiry or contact to Orius or, to Orius's Knowledge, any of the Orius
Stockholders or any of their respective representatives, officers, employees,
directors, or agents with respect to an Orius Transaction.
(ii) Exclusivity in Favor of Orius Stockholders. LISN shall not, and
LISN shall use its reasonable best efforts to ensure that none of the LISN
Shareholders or any of their respective Affiliates, representatives, officers,
employees, directors, or agents shall, directly or indirectly, (i) submit,
solicit, initiate, encourage or discuss any proposal or offer from any Person or
enter into any agreement or accept any offer relating to or consummate any (a)
reorganization, liquidation, dissolution or recapitalization of LISN, (b) merger
or consolidation involving LISN, (c) purchase or sale of any assets or capital
stock (or any rights to acquire, or securities convertible into or exchangeable
for, any such capital stock) of LISN (other than a purchase or sale of assets in
the ordinary course of business consistent with past custom and practice), (d)
similar transaction or business combination involving LISN or its assets or (e)
acquisition of any other businesses, whether by the purchase of assets or by the
purchase of capital stock of another Person, except that LISN may continue
discussions with respect to the proposed acquisitions, it being understood that
LISN will not enter into any binding obligation with respect thereto without
first obtaining the prior written consent of Orius (each of the foregoing
transactions described in clauses (a) through (e), a "LISN Transaction") or (ii)
furnish any information with respect to, assist or participate in or facilitate
in any other manner any effort or attempt by any Person to do or seek to do any
of the foregoing. Notwithstanding the foregoing, the foregoing shall not limit
or restrict in any way any communications between any of Orius, LISN, the Orius
Stockholders, the LISN Shareholders and the legal, accounting or other
professional advisors or lenders to any of the foregoing for the purpose of
facilitating the transactions contemplated by this Agreement. LISN agrees to
notify Orius immediately if any Person makes any proposal, offer, inquiry or
contact to LISN or any of the LISN Shareholders or, to LISN's Knowledge, any of
their respective representatives, officers, employees, directors, or agents with
respect to a LISN Transaction.
4K. Tax Matters.
(i) Without the prior written consent of LISN, Orius shall not, and
shall ensure that none of its Subsidiaries shall, make or change any election,
change an annual accounting period, adopt or change any accounting method, file
any amended Tax Return, enter into any closing agreement, settle any Tax claim
or assessment relating to Orius or any of its Subsidiaries, surrender any right
to claim a refund of Taxes, consent to any extension or waiver of the limitation
period applicable to any Tax claim or assessment relating to Orius or any of its
Subsidiaries, or take any other similar action, or omit to take any action
relating to the filing of any Tax Return or the payment of any Tax, if such
election, adoption, change, amendment, agreement, settlement, surrender, consent
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or other action or omission would have the effect of increasing the present or
future Tax liability or decreasing any present or future Tax asset of Orius or
any of its Subsidiaries.
(ii) Without the prior written consent of Orius, LISN shall not, and
shall ensure that none of its Subsidiaries shall, make or change any election,
change an annual accounting period, adopt or change any accounting method, file
any amended Tax Return, enter into any closing agreement, settle any Tax claim
or assessment relating to LISN or any of its Subsidiaries, surrender any right
to claim a refund of Taxes, consent to any extension or waiver of the limitation
period applicable to any Tax claim or assessment relating to LISN or any of its
Subsidiaries, or take any other similar action, or omit to take any action
relating to the filing of any Tax Return or the payment of any Tax, if such
election, adoption, change, amendment, agreement, settlement, surrender, consent
or other action or omission would have the effect of increasing the present or
future Tax liability or decreasing any present or future Tax asset of LISN or
any of its Subsidiaries.
Section 5. Representations and Warranties of Orius. As a material
inducement to LISN, the LISN Shareholders and the Investors to enter into this
Agreement and the agreements contemplated hereby to which such Person is a party
and to consummate the transactions contemplated hereby and by such other
agreements, Orius hereby represents and warrants to LISN, the LISN Shareholders
and the Investors as follows:
5A. Organization, Corporate Power and Licenses. Orius is a corporation
duly organized, validly existing and whose status is active under the laws of
the State of Florida. Orius is qualified to do business in every jurisdiction in
which its ownership of property or conduct of business requires it to qualify,
except where the failure to so qualify would not have a Material Adverse Effect.
Orius possesses all requisite corporate power and authority necessary to own and
operate its properties, to carry on its businesses as now conducted and
presently proposed to be conducted and to carry out the transactions
contemplated by this Agreement. The copies of Orius's articles of incorporation
and bylaws which have been furnished to the LISN Shareholders' special counsel
reflect all amendments made thereto at any time prior to the date of this
Agreement and are correct and complete. The Articles of Incorporation attached
hereto as Exhibit A will, as of the Closing Date, reflect all amendments made
thereto and will be correct and complete.
5B. Capital Stock and Related Matters.
(i) As of the date hereof, and without giving effect to any of the
transactions contemplated hereby or by the Other Reorganization Agreements, the
authorized capital stock of Orius consists of 200,000,000 shares of common stock
and 2,000,000 shares of preferred stock, (a) of which 14,703,130.33 shares of
Orius Common Stock are issued and outstanding and are held beneficially and of
record by the Orius Stockholders as set forth on the Orius Capitalization
Schedule attached hereto (to Orius' Knowledge, free and clear of all
Encumbrances, except Encumbrances pursuant to the Orius Stockholders Agreement,
as defined below, and except that 240,531.66 of such shares of outstanding Orius
Common Stock are held in escrow pursuant to earn-out arrangements), 655,199.74
shares of Orius Common Stock are reserved for issuance upon exercise of Existing
Orius Options, 371,853.11 shares of Orius Common Stock are reserved for issuance
upon exercise of Orius Warrants, 3,116,828.42 shares of Orius Common Stock are
reserved for issuance upon conversion
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of the Orius Series A Preferred, 3,252,289.98 shares of Orius Common Stock are
reserved for issuance upon conversion of the Orius Series B Preferred, and
692,626.93 shares of Orius Common Stock are reserved for issuance upon
conversion of the Orius Convertible Note, and (b) of which 10,000 shares of
Series A Preferred Stock and 7,596.38 shares of Orius Series B Preferred are
issued and outstanding and are held beneficially and of record by the Orius
Stockholders as set forth on the Orius Capitalization Schedule attached hereto
(to Orius's Knowledge, free and clear of all encumbrances). Other than the Orius
Convertible Note, the Orius Series A Preferred, the Orius Series B Preferred,
Orius Warrants and the Existing Orius Options, and other than the outstanding
shares of Common Stock described above, Orius does not have and as of the
Closing Date will not have outstanding any stock or securities, or any stock or
securities convertible into or exercisable or exchangeable for any shares of its
capital stock or containing any profit participation features, nor any rights or
options to subscribe for or to purchase its capital stock or any stock or
securities directly or indirectly convertible into or exchangeable for its
capital stock or any stock appreciation rights or phantom stock plans, other
than, as of the Closing Date, the Converted LISN Employee Options and New Orius
Options granted pursuant to the New Incentive Stock and Option Plan in
connection with the LISN Merger Transactions. Orius is not subject to any
obligation (contingent or otherwise) to repurchase or otherwise acquire or
retire any shares of its capital stock or any warrants, options or other rights
to acquire its capital stock, other than as expressly provided in this Agreement
and the HIG Redemption Agreement and, as of the Closing, pursuant to the
Articles of Incorporation. As of the date hereof and as of the Closing and
immediately thereafter, all of the outstanding shares of Orius's capital stock
are or shall be validly issued, fully paid and nonassessable. Each of the
Existing Orius Options was issued pursuant to an Existing Option Agreement in
the form previously delivered to LISN and the terms thereof are set forth in
such Existing Option Agreement and the Existing Stock Option Plan.
(ii) Upon consummation of the transactions contemplated hereunder to
occur at the Closing, the authorized capital stock of Orius will consist of
200,000,000 shares of Orius Common Stock, 200,000,000 shares of Orius Class B
Common, 10,000 shares of Orius Series A Preferred, 7,596.38 shares of Orius
Series B Preferred, 200,000,000 shares of Series C Participating Preferred, and
200,000,000 shares of Orius Series D Preferred.
(iii) Prior to the execution and delivery of the Investor Rights
Agreement, except for the Stockholders Agreement dated February 26, 1999, by and
among Orius and the Orius Stockholders party thereto (the "Orius Stockholders
Agreement"), and Orius's Articles of Incorporation, and except as for those
agreements described on the Orius Capitalization Schedule attached hereto (and
identified as included therein in response to this subsection (iii)), there are
no written or, to Orius's Knowledge, oral agreements or understandings between
or among any of the Orius Stockholders or among any other Person which are
binding upon Orius with respect to the voting or transfer of Orius's capital
stock or with respect to any other aspect of Orius's governance.
5C. Subsidiaries; Investments. Except as set forth on the attached
Orius Investments and Orius Subsidiaries Schedule, Orius does not own or hold
the right to acquire any shares of stock or any other security or interest in
any other Person. The attached Orius Investments and Orius Subsidiaries Schedule
correctly sets forth the name of each Subsidiary, the jurisdiction of its
incorporation and the Persons owning the outstanding capital stock of such
Subsidiary. Each
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Subsidiary is duly organized and validly existing under the laws of the
jurisdiction of its incorporation and possesses all requisite corporate power
and authority necessary to own its properties and to carry on its businesses as
now being conducted and as presently proposed to be conducted and is qualified
to do business in every jurisdiction in which its ownership of property or the
conduct of business requires it to qualify, except where the failure to so
qualify would not have a Material Adverse Effect. All of the outstanding shares
of capital stock of each Subsidiary are validly issued, fully paid and
nonassessable, and all such shares are owned by Orius or another Subsidiary free
and clear of any Lien (other than Existing Bank Liens) and are not subject to
any option or right to purchase any such shares. Except as set forth on the
Orius Investments and Orius Subsidiaries Schedule attached hereto, Orius has
never had any Subsidiaries. Except as set forth on the Orius Investments and
Orius Subsidiaries Schedule, Orius does not have any obligation to make any
additional Investments in any Person.
5D. Authorization; No Breach. The execution, delivery and performance
of this Agreement and all of the other agreements and instruments contemplated
hereby to which Orius is a party, and the consummation of the transactions
contemplated hereby and by each of the Other Reorganization Agreements have been
duly authorized by Orius. This Agreement constitutes a valid and binding
obligation of Orius, enforceable in accordance with its terms, and all Other
Reorganization Agreements and instruments contemplated hereby to which Orius is
a party, when executed and delivered by Orius in accordance with the terms
hereof and thereof, shall each constitute a valid and binding obligation of
Orius, enforceable in accordance with their respective terms (except in each
case as limited by applicable bankruptcy, reorganization, insolvency or similar
laws). Except as set forth on the attached Orius Restrictions Schedule, the
execution and delivery by Orius of this Agreement and the Other Reorganization
Agreements and instruments contemplated hereby and thereby to which Orius is a
party, the consummation of the transactions contemplated by this Agreement and
the Other Reorganization Agreements to which Orius is a party and the
fulfillment of and compliance with the respective terms hereof and thereof by
Orius do not and shall not (i) conflict with or result in a breach of the terms,
conditions or provisions of, (ii) constitute a default under (whether with or
without the passage of time, the giving of notice or both), (iii) result in the
creation of any Lien upon Orius's or any of its Subsidiaries' capital stock or
assets pursuant to, (iv) give any third party the right to modify, terminate or
accelerate any obligation under, (v) result in a violation of, or (vi) require
any authorization, consent, approval, exemption or other action by or notice or
declaration to, or filing with, any third party or any court or administrative
or governmental body or agency pursuant to, Orius's Articles of Incorporation or
bylaws, any of its Subsidiaries' charter or bylaws, or any law, statute, rule or
regulation to which Orius or any of its Subsidiaries is subject, or any
agreement, instrument, order, judgment or decree to which Orius or any of its
Subsidiaries is subject, except in such cases in which the failure to obtain any
such authorization, consent, approval, exemption or to provide such notice or
make such filing could not reasonably be expected to have a Material Adverse
Effect (it being understood and agreed that this exception does not apply to any
representation as to any contract, agreement or document required to be listed
on the attached Orius Contracts Schedule). Neither Orius, any of its
Subsidiaries nor any of the Orius Stockholders is a party to or bound by any
written or, to the Knowledge of Orius, oral agreement or understanding with
respect to an Orius Transaction other than this Agreement and the other
agreements contemplated hereby. Neither Orius nor, to Orius's Knowledge, HIG has
breached any of its respective obligations pursuant to the Exclusivity
Agreement.
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5E. Financial Statements. Attached hereto as the Orius Financial
Statements Schedule are the following financial statements:
(i) the audited consolidated balance sheets of Orius as of December
31, 1998, and the related statements of income and cash flows (or the
equivalent) for the fiscal year then ended; and
(ii) the unaudited consolidated balance sheet of Orius as of August 31,
1999 (the "Orius Latest Balance Sheet"), and the related statements of income
and cash flows (or the equivalent) for the eight-month period then ended.
Each of the foregoing financial statements (including in all cases the notes
thereto, if any) when delivered pursuant to Section 5M above is consistent with
the books and records of Orius and its Subsidiaries, fairly presents the
financial condition and operating results of Orius and its Subsidiaries and has
been prepared in accordance with GAAP consistently applied throughout the
periods covered thereby, subject in the case of the unaudited financial
statements to the absence of footnote disclosures and to normal year-end audit
adjustments (none of which footnote disclosures or year-end audit adjustments
would, alone or in the aggregate, be materially adverse to the business,
operations, assets, liabilities, financial condition, operating results, cash
flow or net worth of Orius and its Subsidiaries, taken as a whole).
5F. Absence of Undisclosed Liabilities. Except as set forth on the
attached Orius Liabilities Schedule and other than any Liability which
individually is in an amount less than $50,000 and which collectively with all
other Liabilities arising from the same or similar facts or circumstances is
less than $150,000 in the aggregate, neither Orius nor any of its Subsidiaries
has any Liability arising out of transactions entered into at or prior to the
date hereof, or any action or inaction at or prior to the date hereof, or any
state of facts existing at or prior to the date hereof, other than: (i)
Liabilities set forth on the liabilities side of the Orius Latest Balance Sheet
(including any notes thereto), (ii) Liabilities which have arisen after the date
of the Orius Latest Balance Sheet in the ordinary course of business (none of
which is a Liability resulting from noncompliance with any applicable laws,
breach of contract, breach of warranty (in excess of any warranty reserve
specifically established with respect thereto and included on the Orius Latest
Balance Sheet), tort, infringement, claim or lawsuit) and (iii) other
Liabilities expressly disclosed in the Schedules referred to in this Section 5.
5G. Accounts Receivable. Except as set forth on the attached Orius
Accounts Receivable Schedule, all accounts receivable reflected on the Orius
Latest Balance Sheet and all accounts receivable to be reflected on Orius's and
its Subsidiaries' books and records as of the Closing Date (net of allowances
for doubtful accounts as reflected thereon and as determined in accordance with
GAAP consistently applied) are or shall be valid receivables arising in the
ordinary course of business, and are or shall be current. Except as set forth on
the attached Orius Accounts Receivable Schedule, no Person has any Lien on such
receivables or any part thereof, other than Existing Bank Liens, and no
agreement for deduction, free goods, discount or other deferred price or
quantity adjustment has been made with respect to any such receivables.
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5H. Service Warranty; Service Certifications.
(i) All services rendered by Orius and its Subsidiaries (whether
directly or indirectly through independent contractors) have been in conformity
in all material respects with all applicable contractual commitments and all
express warranties, and neither Orius nor any of its Subsidiaries has nor shall
have any Liability for replacement or repair or for other damages relating to or
arising from any of such services, except for amounts incurred in the ordinary
course of business which are immaterial in the aggregate. Neither Orius nor any
of its Subsidiaries has been notified in writing of any claims for (and Orius
has no Knowledge of any threatened claims for) any extraordinary warranty
obligations relating to any of its products or services.
(ii) Orius and its Subsidiaries hold all material registrations,
accreditations and other certifications required for the conduct of their
respective businesses, except where the failure to hold such registrations,
accreditations and other certifications could not reasonably be expected to have
a Material Adverse Effect (all of such registrations, accreditations and
certifications being referred to herein as "Service Certifications"). Orius and
its Subsidiaries are in compliance with the terms and conditions of all such
Service Certifications and no written (and to Orius's Knowledge, no oral)
notices have been received by Orius or any of its Subsidiaries alleging the
failure to hold any Service Certification.
5I. Service Liability. Except as set forth on the attached Orius
Service Liability Schedule, neither Orius nor any of its Subsidiaries has any
Liability (and, to Orius's Knowledge, there is no reasonable basis for any
present or future action, suit, proceeding, hearing, investigation, charge,
complaint, claim or demand against it giving rise to any Liability) arising out
of any injury to individuals or property with respect to any services rendered
by Orius or any of its Subsidiaries.
5J. No Material Adverse Effect. Since June 30, 1999, there has
occurred no fact, event or circumstance which has had or would reasonably be
expected to have a Material Adverse Effect.
5K. Absence of Certain Developments. Except as expressly contemplated
by this Agreement or as set forth on the attached Orius Developments Schedule,
since June 30, 1999, neither Orius nor any of its Subsidiaries has:
(i) issued any notes, bonds or other debt securities or any capital
stock or other equity securities or any securities or rights convertible,
exchangeable or exercisable into any capital stock or other equity securities;
(ii) borrowed any amount or incurred or become subject to any material
Liabilities, except current Liabilities incurred in the ordinary course of
business consistent with past practice;
(iii) discharged or satisfied any material Lien or paid any material
obligation or Liability, other than current Liabilities paid in the ordinary
course of business;
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(iv) declared, set aside or made any payment or distribution of cash or
other property to any of Orius's shareholders with respect to such shareholder's
capital stock or other equity securities or purchased, redeemed or otherwise
acquired any shares of its capital stock or other equity securities (including
any warrants, options or other rights to acquire its capital stock or other
equity securities);
(v) mortgaged or pledged any of its properties or assets or subjected
them to any Lien, except for Permitted Encumbrances;
(vi) sold, assigned, transferred, leased, licensed or otherwise
encumbered any of its tangible assets, except in the ordinary course of business
consistent with past practice, or canceled any material debts or claims;
(vii) sold, assigned, transferred, leased, licensed or otherwise
encumbered any material Intellectual Property Rights or other intangible assets,
disclosed any material proprietary confidential information to any Person (other
than as contained in the registration statement filed by Orius's predecessor
with the U.S. Securities and Exchange Commission and other than to LISN and the
LISN Shareholder Representative and other than in the ordinary course of
business consistent with past practice in circumstances in which it has imposed
reasonable confidentiality restrictions), or abandoned or permitted to lapse any
Intellectual Property Rights;
(viii) with respect to any of the 35 most highly compensated employees
of Orius and its Subsidiaries on a consolidated basis, made or granted any bonus
or any wage or salary increase (except as required by pre-existing contracts
described on the attached Orius Contracts Schedule), or, with respect to any
employee or group of employees, made or granted any increase in any employee
benefit plan or arrangement, or amended or terminated any existing employee
benefit plan or arrangement or adopted any new employee benefit plan or
arrangement;
(ix) entered into any employment contract involving gross annual
compensation aggregating $75,000 or more or collective bargaining agreement,
written or oral, or modified the terms of any existing such contract or
agreement.
(x) suffered any extraordinary losses or waived any rights of material
value (whether or not in the ordinary course of business or consistent with past
practice) in excess of $100,000 in the aggregate;
(xi) other than as contemplated by the capital expenditure schedule
delivered to the LISN Shareholder Representative during the course of its due
diligence review of Orius, made capital expenditures or commitments therefor
that aggregate in excess of $100,000;
(xii) delayed or postponed the payment of any accounts payable or any
other liability or obligation or agreed with any party to extend the payment
date of any accounts payable or accelerated the collection of any accounts or
notes receivable;
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(xiii) made any loans or advances to, guarantees for the benefit of, or
any Investments in, any Persons (other than advances to Orius's employees in the
ordinary course of business consistent with past practice) in excess of $25,000;
(xiv) made any charitable contributions or pledges exceeding in the
aggregate $25,000;
(xv) suffered any damage, destruction or casualty loss exceeding in the
aggregate $100,000, whether or not covered by insurance;
(xvi) made any change in any method of accounting or accounting
policies or made any write-down in the value of its inventory that is material
or that is other than in the usual, regular and ordinary course of business
consistent with past practice;
(xvii) made any Investment in any Subsidiary, other than those
Subsidiaries listed on the Orius Investments and Orius Subsidiaries Schedule, or
taken any steps to incorporate any Subsidiary, other than Merger Sub;
(xviii) entered into any agreement or arrangement prohibiting or
restricting it from freely engaging in any business or otherwise restricting the
conduct of its business;
(xix) entered into any contract other than in the ordinary course of
business consistent with past practice, entered into any other material
transaction, whether or not in the ordinary course of business or consistent
with past practice, or materially changed any business practice; or
(xx) agreed, whether orally or in writing, to do any of the foregoing.
5L. Assets. Except as set forth on the attached Orius Assets
Schedule, Orius and its Subsidiaries have good and valid title to, a valid
leasehold interest in, or a valid license to use, the properties and assets,
tangible or intangible, shown on the Orius Latest Balance Sheet or acquired
thereafter, free and clear of all Liens, except for properties and assets
disposed of in the ordinary course of business since the date of the Latest
Balance Sheet and except for Liens disclosed on the Orius Latest Balance Sheet
(including any notes thereto) and Permitted Encumbrances and such assets consist
of all of the material assets and properties necessary for the conduct of its
business as presently conducted.
5M. Tax Matters.
(i) Except as set forth on the attached Orius Taxes Schedule:
(a) Orius and its Subsidiaries have filed all Tax Returns which
it is required to file under applicable laws and regulations, and all such Tax
Returns are complete and correct and have been prepared in compliance with all
applicable laws and regulations;
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(b) Orius and its Subsidiaries have paid all Taxes due and owing
by it (whether or not such Taxes are shown or required to be shown on a Tax
Return) and has withheld and paid over to the appropriate taxing authority all
Taxes which it is required to withhold from amounts paid or owing to any
employee, independent contractor, shareholder, creditor or other third party;
(c) neither Orius nor any of its Subsidiaries has waived any
statute of limitations with respect to any Taxes or agreed to any extension of
time for filing any Tax Return which has not been filed; and neither Orius nor
any of its Subsidiaries has consented to extend to a date later than the date
hereof the period in which any Tax may be assessed or collected by any Taxing
Authority;
(d) the accrual for Taxes on the Orius Latest Balance Sheet would
be adequate to pay all Tax liabilities of Orius and its Subsidiaries if its
current tax year were treated as ending on the date of the Orius Latest Balance
Sheet (excluding any amount recorded which is attributable solely to timing
differences between book and Tax income);
(e) since December 31, 1998, neither Orius nor any of its
Subsidiaries has incurred any liability for Taxes other than in the ordinary
course of business;
(f) the federal income Tax Returns of Orius and its Subsidiaries
have not been audited and are open for all tax years after December 31, 1994;
(g) no foreign, federal, state or local tax audits or
administrative or judicial Tax proceedings are pending or being conducted with
respect to Orius or any of its Subsidiaries;
(h) neither Orius nor any of its Subsidiaries has received from
any foreign, federal, state or local taxing authority (including jurisdictions
where Orius or any of its Subsidiaries has filed Tax Returns) any (i) written
notice indicating an intent to open an audit or other review, (ii) request for
information related to Tax matters or (iii) notice of deficiency or proposed
adjustment for any amount of Tax proposed, asserted or assessed by any taxing
authority against Orius or any of its Subsidiaries;
(i) no written, or to Orius's Knowledge, oral claim has ever been
made against Orius or any of its Subsidiaries by a taxing authority in a
jurisdiction where Orius or any of its Subsidiaries do not file Tax Returns that
Orius or any of its Subsidiaries are or may be subject to Taxes assessed by such
jurisdiction;
(j) neither Orius nor any of its Subsidiaries has been a member
of an Affiliated Group (other than a group the common parent of which was
Orius);
(k) neither Orius nor any of its Subsidiaries is a party to or
bound by any Tax allocation or Tax sharing agreement;
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(l) there are no Liens for Taxes (other than Permitted
Encumbrances) upon the assets of Orius or any of its Subsidiaries; and
(m) neither Orius nor any of its Subsidiaries shall be required
to (i) as a result of a change in method of accounting for a taxable period
ending on or prior to the Closing Date, include any adjustment in taxable income
for any taxable period (or portion thereof) ending after the Closing Date, (ii)
as a result of any "closing agreement," as described in Section 7121 of the Code
(or any corresponding provision of state, local or foreign income Tax law)
executed on or before the Closing Date, include any item of income in, or
exclude any item of deduction from, taxable income for any taxable period (or
portion thereof) ending after the Closing Date, (iii) as a result of any sale
reported on the installment method where such sale occurred on or prior to the
Closing Date, include any item of income in, or exclude any item of deduction
from, taxable income for any taxable period (or portion thereof) ending after
the Closing Date, or (iv) as a result of any prepaid amount received on or prior
to the Closing Date, include any item of income in, or exclude any item of
deduction from, taxable income for any taxable period (or portion thereof)
ending after the Closing Date; and
(ii) Neither Orius nor any of its Subsidiaries:
(a) has made an election under Section 341(f) of the Code;
(b) is presently liable for the Taxes of another Person (other
than any of Orius and its Subsidiaries) (1) under Treas. Reg. ss.1.1502-6 (or
comparable provisions of state, local or foreign law), (2) as a transferee or
successor or (3) by contract or indemnity or otherwise;
(c) is a party to any agreement, contract, arrangement, or plan
that has resulted or would result, separately or in the aggregate, in the
payment of any "excess parachute payment" within the meaning of Section 280G of
the Code (or any corresponding provision of state, local or foreign law); or
(d) is or 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.
5N. Contracts and Commitments.
(i) Except as expressly contemplated by this Agreement or as set
forth on the attached Orius Contracts Schedule, the attached Orius Intellectual
Property Schedule, the attached Orius Employees Schedule, or the attached Orius
Employee Benefits Schedule, neither Orius nor any of its Subsidiaries is a party
to or bound by any written or oral:
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(a) pension, profit sharing, stock option, employee stock
purchase or other plan or arrangement providing for deferred or other
compensation to employees or any other employee benefit plan, arrangement or
practice, whether formal or informal;
(b) collective bargaining agreement or any other contract with
any labor union, or severance agreements, programs, policies or arrangements;
(c) management agreement, contract for the employment of any
officer, individual employee or other Person on a full-time, part-time,
consulting or other basis providing annual cash or other compensation in excess
of $75,000 or providing for the payment of any cash or other compensation or
benefits upon the consummation of the transactions contemplated hereby;
(d) contract or agreement requiring the consent of any party
thereto upon a change in control of Orius or such Subsidiary, containing any
provision which would result in a modification of any rights or obligations of
any party thereunder upon a change in control of Orius or such Subsidiary or
which would provide any party any remedy (including rescission or liquidated
damages) in the event of a change in control of Orius or such Subsidiary;
(e) contract under which it has advanced or loaned monies to any
other Person or otherwise agreed to advance, loan or invest any funds (other
than advances to Orius's employees in the ordinary course of business consistent
with past practice);
(f) agreement or indenture relating to borrowed money or other
Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any
material asset or material group of assets of Orius or any of its Subsidiaries
or any letter of credit arrangements;
(g) guaranty of any obligation for borrowed money or otherwise
(other than endorsements made for collection in the ordinary course of
business);
(h) lease or agreement under which Orius or any of its
Subsidiaries is lessee of or holds or operates any property, real or personal,
owned by any other Person, except for any lease of personal property under which
the aggregate annual rental payments do not exceed $25,000 and any lease of real
property under which the aggregate annual rental payments do not exceed $50,000;
(i) lease or agreement under which Orius or any of its
Subsidiaries is lessor of or permits any third party to hold or operate any
property, real or personal, owned or controlled by Orius or such Subsidiary;
(j) license or royalty agreements;
(k) nondisclosure or confidentiality agreements;
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(l) local service agreements (including cleaning, guard service,
lawn and snow removal) and maintenance agreements (including vehicle and
equipment maintenance agreements) involving annual payments in excess of
$50,000;
(m) contract or group of related contracts with the same party or
group of affiliated parties for the purchase of raw materials, commodities,
supplies, products, equipment or other personal property or for the receipt of
services under which the undelivered balance of such products and services has a
selling price in excess of $150,000;
(n) contract or group of related contracts with the same party or
group of affiliated parties for the sale of raw materials, commodities,
supplies, products or other personal property or for the furnishing of services
under which the undelivered balance of such products or services due from Orius
or any of its Subsidiaries has a selling price in excess of $750,000;
(o) other contract or group of related contracts with the same
party or group of affiliated parties continuing over a period of more than six
months from the date or dates thereof, not terminable by Orius or any of its
Subsidiaries upon 30 days' or less notice without penalty or involving more than
$75,000;
(p) contract or group of related contracts requiring the payment
of any fee, penalty or other amount by Orius or any of its Subsidiaries in the
event of any failure to perform or late performance of such contract or
contracts by Orius or such Subsidiary;
(q) contract relating to the marketing, advertising or promotion
of its products;
(r) warranty agreement with respect to services provided (other
than agreements containing commercially standard terms and conditions) or
indemnity agreement with any supplier under which it is obligated to indemnify
such supplier against product liability claims;
(s) agreements relating to the ownership of or investments in any
business or enterprise, including investments in joint ventures and minority
equity investments;
(t) assignment, indemnification or other agreement with respect
to any intangible property (including any Intellectual Property Rights);
(u) agreement under which it has granted any Person any
registration rights (including demand or piggyback registration rights);
(v) broker, agent, sales representative, distribution agreement
or agreement relating to the export and/or import of any goods or equipment;
(w) power of attorney or other similar agreement or grant of
agency;
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(x) contract or agreement prohibiting it from freely engaging in
any business or competing anywhere in the world; or
(y) other agreement which is material to its operations or
business prospects or involves an annual consideration in excess of $250,000,
whether or not in the ordinary course of business.
(ii) Orius Contracts Schedule lists each currently outstanding bid or
proposal for business submitted by Orius or any of its Subsidiaries in excess of
$1,000,000.
(iii) All of the contracts, agreements and instruments set forth or
required to be set forth on the attached Orius Contracts Schedule are valid,
binding and enforceable against Orius (and, to the Knowledge of Orius, against
the other party or parties thereto) in accordance with their respective terms
(except in each case as limited by applicable bankruptcy, reorganization,
insolvency or similar laws) and, assuming they are enforceable against the other
parties thereto, shall be in full force and effect without penalty in accordance
with their terms upon consummation of the transactions contemplated hereby. Each
of Orius and its Subsidiaries has performed all material obligations required to
be performed by it and is not in default under or in breach of nor in receipt of
any written claim (and to its Knowledge there are no claims) of default or
breach under any contract, agreement or instrument to which Orius or such
Subsidiary is subject; 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 Orius or any of its Subsidiaries under any material contract,
agreement or instrument to which Orius or any of its Subsidiaries is subject;
except as set forth on the attached Orius Contracts Schedule, neither Orius nor
or any of its Subsidiaries has any present expectation or intention of not fully
performing on a timely basis all such obligations required to be performed by
Orius or such Subsidiary under any contract, agreement or instrument to which
Orius or such Subsidiary is subject; and neither Orius nor or any of its
Subsidiaries has any Knowledge of any breach or cancellation or anticipated
cancellation by the other parties to any contract, agreement, instrument or
commitment to which it is a party. Neither Orius nor any of its Subsidiaries is
a party to any contract, agreement or commitment the performance of which could
reasonably be expected to have a Material Adverse Effect.
(iv) Orius has made available to LISN Shareholder Representative's
special counsel a true and correct copy of each of the written instruments,
plans, contracts and agreements and an accurate description of each of the oral
arrangements, contracts and agreements which are referred to on the attached
Orius Contracts Schedule, together with all amendments, waivers or other changes
thereto.
5O. Intellectual Property Rights.
(i) The attached Orius Intellectual Property Schedule contains a
complete and accurate list of all (a) patented or registered Intellectual
Property Rights owned or, to Orius's Knowledge, used by Orius or any of its
Subsidiaries, (b) pending patent applications and applications for other
registrations of Intellectual Property Rights filed by or on behalf of Orius or
any of its Subsidiaries, and (c) material unregistered Intellectual Property
Rights owned or used by Orius or
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any of its Subsidiaries. The attached Orius Intellectual Property Schedule also
contains a complete and accurate list of all licenses and other rights granted
by Orius or any of its Subsidiaries to any third party with respect to any
Intellectual Property Rights and all licenses and other rights granted by any
third party to Orius or any of its Subsidiaries with respect to any Intellectual
Property Rights, in each case identifying the subject Intellectual Property
Rights. Each of Orius and its Subsidiaries owns and possesses all right, title
and interest to, or has the right to use pursuant to a valid and enforceable
license, all Intellectual Property Rights necessary for the operation of its
business, free and clear of all Liens other than Existing Bank Liens. Except as
set forth on the attached Orius Intellectual Property Schedule, the loss or
expiration of any Intellectual Property Right or related group of Intellectual
Property Rights owned or used by Orius or any of its Subsidiaries has not had
and would not reasonably be expected to have a Material Adverse Effect, and no
loss or expiration of any Intellectual Property Right is threatened, pending or,
to Orius's Knowledge, reasonably foreseeable. Each of Orius and its Subsidiaries
has taken commercially reasonable steps to maintain and protect the Intellectual
Property Rights which it owns.
(ii) Except as set forth on the attached Orius Intellectual
Property Schedule, (a) there have been no claims made against Orius or any of
its Subsidiaries asserting the invalidity, misuse or unenforceability of any of
the Intellectual Property Rights owned or used by Orius or any of its
Subsidiaries and, to Orius's Knowledge, there is no basis for any such claim,
(b) neither Orius nor any of its Subsidiaries has received any written notices
of, and to Orius's Knowledge neither Orius nor any of its Subsidiaries has
received any unwritten notice of, and has no Knowledge of, any facts which
indicate a likelihood of, any infringement or misappropriation by, or conflict
with, any third party with respect to any Intellectual Property Rights
(including any demand or request that Orius or any of its Subsidiaries license
any rights from a third party), (c) to Orius's Knowledge the conduct of Orius's
and its Subsidiaries' businesses has not infringed, misappropriated or
conflicted with and does not infringe, misappropriate or conflict with any
Intellectual Property Rights of other Persons, and (d) to Orius's Knowledge, the
Intellectual Property Rights owned by or licensed to Orius or any of its
Subsidiaries have not been infringed, misappropriated or conflicted by other
Persons. The transactions contemplated by this Agreement will have no Material
Adverse Effect on Orius's and its Subsidiaries' right, title or interest in and
to the Intellectual Property Rights listed on the Orius Intellectual Property
Schedule, and all of such Intellectual Property Rights shall be owned or
available for use by Orius and its Subsidiaries on terms and conditions
immediately after the Closing which are substantially identical to those in
effect immediately prior to Closing.
5P. Litigation, etc. Except as set forth on the attached Orius
Litigation Schedule, there are no (and, in respect of Orius and NATG, L.L.C. and
their respective corporate predecessors, since inception there have not been
any, and in respect of any of Orius's Subsidiaries, since the date of
acquisition thereof by Orius there have not been any) actions, suits,
proceedings (including any arbitration proceedings), orders, investigations or
claims pending or, to Orius's Knowledge, threatened against or any material
actions, suits, proceedings (including any arbitration proceedings), orders,
investigations or claims affecting Orius or any of its Subsidiaries (or to
Orius's Knowledge, pending or threatened against or any actions, suits,
proceedings (including any arbitration proceedings), orders, investigations or
claims affecting any of the officers, directors or employees of Orius with
respect to its business activities), or pending or threatened by Orius or any of
its Subsidiaries against any Person, at law or in equity, or before or by any
governmental department,
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commission, board, bureau, agency or instrumentality (including any actions,
suits, proceedings or investigations with respect to the transactions
contemplated by this Agreement); neither Orius nor any of its Subsidiaries is
subject to any arbitration proceedings under collective bargaining agreements or
otherwise or any governmental investigations or inquiries; and, to Orius's
Knowledge, there is no basis for any of the foregoing. The foregoing includes,
without limitation, actions pending or threatened involving the prior employment
of any of the 35 most highly compensated employees of Orius and its Subsidiaries
on a consolidated basis, their use in connection with Orius's or any of its
Subsidiaries' businesses of any information or techniques allegedly proprietary
to any of their former employers or their obligations under any agreements with
prior employers. Except as set forth on the attached Orius Litigation Schedule,
Orius is fully insured with respect to each of the matters set forth on the
attached Orius Litigation Schedule, and neither Orius nor any of its
Subsidiaries is subject to any judgment, order or decree of any court or other
governmental agency, and neither Orius nor any of its Subsidiaries has received
any opinion or memorandum or advice from legal counsel to the effect that it is
exposed, from a legal standpoint, to any liability which could have a Material
Adverse Effect.
5Q. Brokerage. Except for Orius's obligations to Deutsche Bank
Securities, Inc. pursuant to the agreement described on the Orius Contracts
Schedule attached hereto, there are and shall be no claims for brokerage
commissions, finders' fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement to which Orius or any of its Subsidiaries is a party or to which Orius
or any of its Subsidiaries is subject, it being acknowledged and agreed that any
such brokerage commissions, finder's fees or similar compensation shall be
deemed to be Indebtedness of Orius for purposes of this Agreement.
5R. Insurance. The attached Orius Insurance Schedule contains
a description of each insurance policy maintained by Orius and any of its
Subsidiaries with respect to its and any of its Subsidiaries' properties, assets
and business, together with a statement of the aggregate amount of claims paid
out, and claims pending, under each such insurance policy or other arrangement
through the date hereof. All such policies are in full force and effect as of
the Closing, all premiums due thereon have been paid, and Orius and its
Subsidiaries are otherwise in compliance in all material respects with the terms
and provisions of such policies. Neither Orius nor any of its Subsidiaries is in
default with respect to its obligations under any insurance policy maintained by
it, and neither Orius nor any of its Subsidiaries has received any notice of
cancellation or non-renewal of any such policy or arrangement nor is the
termination of any such policies or arrangements threatened. Neither Orius nor
any of its Subsidiaries has ever been denied insurance coverage, and there is no
claim pending under any policies or arrangements as to which coverage has been
questioned, denied or disputed by the underwriters of such policies or
arrangements. Neither Orius nor any of its Subsidiaries has received any notice
from any of its insurance carriers that any insurance premiums will be increased
in the future or that any insurance coverage presently provided for will not be
available to Orius or any of its Subsidiaries in the future on substantially the
same terms as now in effect and none of such policies or arrangements provides
for any retrospective premium adjustment, experienced-based liability or loss
sharing arrangement affecting Orius or any of its Subsidiaries. A true and
complete list of all outstanding claims for medical expenses in excess of
$10,000 made by or with respect to any single employee of Orius or any of its
Subsidiaries is set forth in the Orius Insurance Schedule. Except as set forth
on the attached Orius Insurance Schedule,
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Orius has no self-insurance or co-insurance programs, and the reserves set forth
on the Orius Latest Balance Sheet are adequate to cover all anticipated
Liabilities with respect to any such self-insurance or co-insurance programs.
5S. Employees. To Orius's Knowledge, no executive or key
employee of Orius or any of its Subsidiaries and no group of employees of Orius
or any of its Subsidiaries has any plans to terminate employment with Orius or
such Subsidiary. Orius has no material labor relations problems (including any
union organization activities, threatened or actual strikes or work stoppages or
material grievances). None of Orius, the Orius Stockholders nor, to Orius's
Knowledge, any of its other employees or consultants are subject to any
noncompete, nondisclosure, confidentiality, employment, consulting or other
agreement or judgment, decree or order of any court or administrative agency,
relating to, affecting or in conflict with the present or proposed business
activities of Orius and its Subsidiaries or such Person's duties to Orius and
its Subsidiaries, except for agreements between Orius and its present and former
employees. Orius has not received any written notice alleging that any violation
of any such agreements has occurred, and to Orius's Knowledge neither Orius nor
any of its Subsidiaries has received any unwritten notice thereof. The Orius
Employees Schedule attached hereto contains a correct and complete list of all
employees and consultants of Orius which have executed and delivered to Orius
any agreement providing for the nondisclosure by such Person of any confidential
information of Orius.
5T. ERISA.
(i) Except as set forth on the attached Orius Employee
Benefits Schedule, Orius does not have any obligation to contribute to (or any
other liability, including current or potential withdrawal liability, with
respect to) any "multi-employer plan" (as defined in Section 3(37) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")).
(ii) Orius does not maintain or have any obligation to
contribute to (or any other liability with respect to) any plan or arrangement,
whether or not terminated, which provides medical, health, life insurance or
other welfare-type benefits for current or future retired or terminated
employees or any dependents of such employees (except for limited continued
medical benefit coverage required to be provided under Section 4980B of the Code
("COBRA") or as required under applicable state law).
(iii) Orius does not maintain, contribute to or have any
actual or potential liability under (or with respect to) any employee plan which
is a "defined benefit plan" (as defined in Section 3(35) of ERISA).
(iv) Except as set forth on the attached Orius Employee
Benefits Schedule, Orius does not maintain, contribute to or have any actual or
potential liability under (or with respect to) any employee plan which is a
"defined contribution plan" (as defined in Section 3(34) of ERISA) (the
"Plans"), whether or not terminated.
(v) Except as set forth on the attached Orius Employee
Benefits Schedule under the heading "Other Plans" (the "Other Plans"), Orius
does not maintain, contribute to or have any
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actual or potential liability under (or with respect to) any plan or arrangement
providing benefits or remuneration to current or former employees or independent
contractors, including any employment contract, bonus or incentive plan, plan
for deferred compensation, employee health or other welfare benefit plan,
severance arrangement or other material policy, program or arrangement, whether
or not terminated. The attached Orius Employee Benefits Schedule sets forth the
aggregate amount of bonuses and other incentive compensation reasonably expected
to be paid by Orius for the fiscal year ending December 31, 1999.
(vi) With respect to the Plans set forth on the attached Orius
Employee Benefits Schedule, all required payments, premiums, contributions,
reimbursements or accruals for all periods ending prior to or as of the Closing
Date shall have been made or properly accrued. None of the Plans has any
material unfunded liabilities which are not reflected on the Latest Balance
Sheet.
(vii) Except as set forth on the attached Orius Employee
Benefits Schedule, the Plans and all related trusts, insurance contracts and
funds have been maintained, funded and administered in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
applicable laws. Except as set forth on the attached Orius Employee Benefits
Schedule, Orius has timely complied with all reporting and disclosure
obligations as they apply to the Plans, and Orius has complied with the
requirements of COBRA. To Orius's Knowledge, none of Orius or any trustee or
administrator of any Plan has engaged in any transaction with respect to the
Plans which would subject Orius or any trustee or administrator of the Plans, or
any party dealing with any such Plan, nor do the transactions contemplated by
this Agreement constitute transactions which would subject any such party, to
either a civil penalty assessed pursuant to Part 502(i) of ERISA, or any other
penalty or excise tax or the tax or penalty on prohibited transactions imposed
by Section 4975 of the Code or any other penalty or excise tax. No actions,
suits or claims with respect to the assets of the Plans (other than routine
claims for benefits) are pending or, to Orius's Knowledge, threatened which
could result in or subject Orius to any liability and there are no circumstances
which would give rise to or be expected to give rise to any such actions, suits
or claims.
(viii) The attached Orius Employee Benefits Schedule sets
forth whether or not a favorable determination letter from the Internal Revenue
Service has been received by Orius with respect to each Plan that it is
qualified under Section 401(a) of the Code (including requirements imposed by
the Tax Reform Act of 1986 and subsequent legislation), and, to Orius's
Knowledge, there are no circumstances which would cause a Plan to lose such
qualified status.
(ix) For purposes of this Section 5T, "Orius" shall be deemed
to include all organizations under common control with Orius pursuant to Section
414 of the Code.
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5U. Compliance with Laws; Permits; Certain Operations. Except
as set forth on the attached Orius Compliance Schedule:
(i) Each of Orius and its Subsidiaries is in material
compliance with and, throughout the immediately preceding 5 year period has
complied in all material respects with, all applicable laws, ordinances, codes,
rules, requirements and regulations of foreign, federal, state and local
governments and all agencies thereof relating to the operation of its business
and the maintenance and operation of its properties and assets. During the five
year period ending on the Closing Date, no written (or, to Orius's Knowledge,
oral) notices have been received by and no claims have been filed against Orius
or any of its Subsidiaries alleging a violation of any such laws, ordinances,
codes, rules, requirements or regulations.
(ii) Each of Orius and its Subsidiaries holds and is in
compliance with all permits, licenses, bonds, approvals, certificates,
registrations, accreditations and other authorizations of all foreign, federal,
state and local governmental agencies required for the conduct of its business
and the ownership of its properties (including as the same relate to
Environmental and Safety Requirements), and the attached Orius Permits Schedule
sets forth a description of all of such material permits, licenses, bonds,
approvals, certificates, registrations, accreditations and other authorizations.
To Orius's Knowledge, no notices have been received by Orius or any of its
Subsidiaries alleging the failure to hold any of the foregoing. All of such
permits, licenses, bonds, approvals, accreditations, certificates, registrations
and authorizations will be available for use by Orius and its Subsidiaries, as
the case may be, immediately after the Closing.
5V. Environmental and Safety Matters.
(i) Except as set forth on the attached Orius Environmental
Schedule:
(a) Each of Orius and its Subsidiaries has complied
in all material respects with and is in material compliance with all
Environmental and Safety Requirements. Neither Orius nor any of its
Subsidiaries have received any written or oral notice, report or
information regarding any actual or alleged violation of Environmental
and Safety Requirements or any liabilities or potential liabilities
relating to it or its facilities arising under Environmental and Safety
Requirements.
(b) Neither this Agreement nor the consummation of
the transactions contemplated hereby will result in any obligations for
site investigation or cleanup, or notification to or consent of any
government agencies or third parties under any Environmental and Safety
Requirements (including any so called "transaction-triggered" or
"responsible property transfer" laws and regulations).
(c) None of the following exists at any property or
facility owned, occupied or operated by Orius or any of its
Subsidiaries:
(1) underground storage tanks;
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(2) asbestos-containing material in any form
or condition;
(3) materials or equipment containing
polychlorinated biphenyls; or
(4) landfills, surface impoundments or other
disposal areas.
(d) Neither Orius nor any of its Subsidiaries has
treated, stored, disposed of, arranged for or permitted the disposal
of, transported, handled or Released any substance (including any
hazardous substance) or owned, occupied or operated any facility or
property (and no such property or facility is contaminated by any such
substance) in a manner that has given or could give rise to any
Liabilities (including any Liability for response costs, corrective
action costs, personal injury, natural resource damages, property
damage or attorneys fees or any investigative, corrective or remedial
obligations) pursuant to CERCLA or any other Environmental and Safety
Requirements.
(e) Neither Orius nor any of its Subsidiaries has,
either expressly or by operation of law, assumed or undertaken any
liability or corrective, investigatory or remedial obligation of any
other Person relating to any Environmental and Safety Requirements.
(f) No Environmental Lien has attached to any
property owned, leased or operated by Orius or any of its Subsidiaries.
5W. Affiliated Transactions. Except as set forth on the
attached Orius Affiliated Transactions Schedule, no officer, director,
shareholder or Affiliate of Orius or any of its Subsidiaries or, to Orius's
Knowledge, any individual related by blood, marriage or adoption to any such
individual or any entity in which any such Person or individual owns any
beneficial interest, is a party to any agreement, contract, commitment or
transaction with Orius or any Subsidiary of Orius or has any material interest
in any material property used by Orius or any of its Subsidiaries (including any
Intellectual Property Rights) involving in any case liabilities or assets with
fair market value of $100,000 or more, or involving payments or payment
obligations aggregating $100,000 in any twelve-month period.
5X. Suppliers and Customers. The Orius Suppliers and Customers
Schedule attached hereto sets forth a list of the top ten customers and
suppliers of Orius by dollar volume of sales and purchases, respectively, for
the fiscal year ended December 31, 1998. Neither Orius nor any of its
Subsidiaries has received any indication from any material supplier to the
effect that, and to Orius's Knowledge, neither Orius nor any of its Subsidiaries
has any reason to believe that, such supplier will stop, materially decrease the
rate of, or materially change the terms (whether related to payment, price or
otherwise) with respect to, supplying materials, products or services to any of
Orius and its Subsidiaries (whether as a result of the consummation of the
transactions contemplated hereby or otherwise). To Orius's Knowledge, neither
Orius nor any of its Subsidiaries has received any indication from any material
customer of Orius to the effect that, and to Orius's Knowledge, neither Orius
nor any of its Subsidiaries has any reason to believe that, such customer will
stop, or
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materially decrease the rate of, buying products of Orius (whether as a result
of the consummation of the transactions contemplated hereby or otherwise).
5Y. Real Property.
(i) The Orius Real Property Schedule sets forth the address
and lists and describes briefly all land, together with all buildings located
thereon, owned by Orius or any of its Subsidiaries (the "Orius Owned Real
Property"). With respect to each such parcel of Orius Owned Real Property and
except as set forth on the Orius Real Property Schedule:
(a) the identified owner has good title to the parcel
of real property, free and clear of any Lien, easement,
covenant, or other restriction as of the Closing Date, except
Permitted Encumbrances;
(b) there are no pending or, to the Knowledge of
Orius, threatened condemnation, expropriation or other eminent
domain proceedings, lawsuits, or administrative actions
relating to the Orius Owned Real Property or other matters
affecting adversely the current use, occupancy, or value
thereof;
(c) the legal description for the parcel contained in
the deed describes such parcel fully and adequately, the
buildings and improvements are located within the boundary
lines of the described parcels of land, are not in violation
of applicable setback requirements, zoning laws, and
ordinances (and none of the properties or buildings or
improvements thereon are subject to "permitted non-conforming
use" or "permitted non-conforming structure" classifications),
and do not encroach on any easement which may burden the land,
the land does not serve any adjoining property for any purpose
inconsistent with the use of the land, and the property is not
located within any flood plain or subject to any similar type
restriction for which any permits or licenses necessary to the
use thereof have not been obtained;
(d) all facilities have received all approvals of
governmental authorities (including licenses and permits)
required in connection with the ownership or operation thereof
and have been operated and maintained in accordance with
applicable laws, rules and regulations;
(e) there are no leases, subleases, licenses,
concessions, or other agreements, written or oral, granting to
any party or parties the right of use or occupancy of any
portion of the parcel of Orius Owned Real Property, other than
tenants under any leases disclosed in the Orius Real Property
Schedule who are in possession of space of which they are
entitled;
(f) there are no outstanding options or rights of
first refusal to purchase the parcel of Orius Owned Real
Property, or any portion thereof or interest therein;
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(g) there are no parties (other than Orius) in
possession of the parcel of Orius Owned Real Property, other
than tenants under any leases disclosed in the Orius Real
Property Schedule who are in possession of space of which they
are entitled;
(h) all facilities located on the parcel of Orius
Owned Real Property are supplied with utilities and other
services necessary for the operation of such facilities,
including gas, electricity, water, telephone, sanitary sewer,
and storm sewer, all of which services are adequate in
accordance with all applicable laws, ordinances, rules and
regulations and are provided via public roads or via
permanent, irrevocable, appurtenant easements benefitting the
parcel of Orius Owned Real Property; and
(i) each parcel of Orius Owned Real Property abuts on
and has direct vehicular access to a public road, or has
access to a public road via a permanent, irrevocable,
appurtenant easement benefitting the parcel of real property,
and access to the property is provided by paved public
right-of-way with adequate curb cuts available.
(ii) The Orius Real Property Schedule attached hereto sets
forth a list of all of the leases, subleases and licenses ("Orius Leases") of
real property (the "Orius Leased Real Property"), including the address of the
Orius Leased Real Property, in which Orius or any of its Subsidiaries has a
leasehold, subleasehold or licensed interest, other than any lease which may be
terminated by either party without liability to the other on less than 90 days
notice or involving aggregate annual rentals of less than $50,000, not otherwise
involving any material liability and the termination of which would not have a
Material Adverse Effect. Orius or such Subsidiary holds a valid and existing
leasehold, subleasehold or license interest under each of the Orius Leases. With
respect to each Orius Lease listed on the attached Orius Real Property Schedule,
neither Orius, any of its Subsidiaries, nor, to the Knowledge of Orius, any
other party to the Orius Lease is in breach or default under the Orius Lease,
and no event has occurred or circumstance exists which, with the delivery of
notice, passage of time or both, would constitute such a breach or default or
permit the termination, modification or acceleration of rent under the Orius
Lease, there are no disputes, oral agreements, or forbearance programs in effect
as to such Orius Lease and neither Orius nor any of its Subsidiaries has
assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any
interest in the Orius Lease. Except for the Orius Leased Real Property, and the
Orius Owned Real Property, there is no real property which is leased or
otherwise used in Orius's business.
5Z. Regulatory Status. Since its date of incorporation,
neither Orius nor any of its Subsidiaries has been, and as of the Closing Date
shall not be, a "United States real property holding corporation," as defined in
Section 897(c)(2) of the Code and in Section 1.897-2(b) of the Treasury
Regulations issued thereunder. Neither Orius nor any of its Subsidiaries is an
"investment company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined under the
Investment Orius Act of 1940, as amended. Neither Orius nor any of its
Subsidiaries is subject to any law which regulates the incurring of indebtedness
(other than certain corporation law statutes which prohibit a corporation from
incurring indebtedness if doing so would cause such corporation to become
insolvent) by Orius or such Subsidiary,
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including any laws relating to common contract carriers or the sale of
electricity, gas, steam, water or other public utility services.
5AA. Merger Sub.
(i) Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio, has been
formed solely for the purpose of effectuating the transactions contemplated
hereby and has not engaged in any other business actively since its formation in
October 1999. Merger Sub possesses all requisite corporate power and authority
necessary to carry out the transactions contemplated by this Agreement. The
copies of Merger Sub's charter documents and bylaws which have been furnished to
LISN reflect all amendments made thereto at any time prior to the date of this
Agreement and are correct and complete. The execution, delivery and performance
of this Agreement and all of the other agreements and instruments contemplated
hereby to which Merger Sub is a party, and the consummation of the transactions
contemplated hereby have been duly authorized by Merger Sub. This Agreement
constitutes a valid and binding obligation of Merger Sub, enforceable in
accordance with its terms (except in each case as limited by applicable
bankruptcy, reorganization, insolvency or similar laws), and all other
instruments contemplated hereby to which Merger Sub is a party, when executed
and delivered by Merger Sub in accordance with the terms hereof and thereof,
shall each constitute a valid and binding obligation of Merger Sub, enforceable
in accordance with their respective terms (except in each case as limited by
applicable bankruptcy, reorganization, insolvency or similar laws).
(ii) As of the date hereof and after giving effect to the
transactions contemplated hereunder, the authorized capital stock of Merger Sub
consists of 10,000 shares of common stock, all of which are issued and
outstanding and are held beneficially and of record by Orius. As of the date
hereof and as of the Closing and immediately thereafter, all of the outstanding
shares of Merger Sub's capital stock are or shall be validly issued, fully paid
and nonassessable. Except for such shares of outstanding common stock, Merger
Sub does not have and as of the Closing Date will not have outstanding any stock
or securities, or any stock or securities convertible into or exercisable or
exchangeable for any shares of its capital stock or containing any profit
participation features, nor any rights or options to subscribe for or to
purchase its capital stock or any stock or securities directly or indirectly
convertible into or exchangeable for its capital stock or any stock appreciation
rights or phantom stock plans.
5BB. Disclosure. Neither this Agreement nor any of the
Schedules attached hereto nor any of the written statements, certificates or
other items prepared and delivered to LISN, the LISN Shareholders or the
Investors by or on behalf of Orius or the Orius Stockholders upon execution of
any of this Agreement, the Purchase Agreement, the HIG Call Agreement, the HIG
Put Agreement, the Joinder Agreements, the Orius Call Agreements, the Orius Put
Agreements, and the Pledge and Voting Agreements, or any of the agreements
contemplated hereby or to induce the consummation of any of the transactions
contemplated hereby or thereby, when taken together as a whole, contain any
untrue statement of a material fact or omit a material fact necessary to make
the statements contained herein or therein, in light of the circumstances in
which they were made, not misleading. There is no fact which Orius has not
disclosed to the LISN Shareholder Representative
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in writing and of which any of its officers, directors or executive employees is
aware which has had or would reasonably be expected to have a Material Adverse
Effect.
5CC. Closing Date. The representations and warranties of Orius
contained in this Section 5 and elsewhere in this Agreement and all information
contained in any of the Schedules attached hereto or any of the written
statements, certificates or other items prepared and delivered to LISN, the LISN
Shareholders or the Investors by or on behalf of Orius or the Orius Stockholders
upon execution of any of this Agreement, the Purchase Agreement, the HIG Call
Agreement, the HIG Put Agreement, the Joinder Agreements, the Orius Call
Agreements, the Orius Put Agreements, and the Pledge and Voting Agreements, or
any of the agreements contemplated hereby or to induce the consummation of any
of the transactions contemplated hereby or thereby shall be true and correct on
the Closing Date as though then made and as though the Closing Date was
substituted for the date of this Agreement throughout such representations and
warranties, except in any case in which a representation and warranty expressly
refers to a different date, in which case such representation and warranty shall
be true and correct as of such date.
Section 6. Representations and Warranties of LISN. As a
material inducement to Orius and the Orius Stockholders to enter into this
Agreement and the agreements contemplated hereby to which such Person is a party
and to consummate the transactions contemplated hereby and
by such other agreements, LISN hereby represents and warrants to Orius and the
Orius Stockholders as follows:
6A. Organization, Corporate Power and Licenses. LISN is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Ohio, and is qualified to do business in every jurisdiction in
which its ownership of property or conduct of business requires it to qualify
(which jurisdictions are listed on the LISN Organization, Corporate Power and
Licenses Schedule attached hereto), except where the failure to so qualify would
not have a Material Adverse Effect. LISN possesses all requisite corporate power
and authority necessary to own and operate its properties, to carry on its
businesses as now conducted and presently proposed to be conducted and to carry
out the transactions contemplated by this Agreement. The copies of LISN's
articles of incorporation and Code of Regulations which have been furnished to
Orius' counsel reflect all amendments made thereto at any time prior to the date
of this Agreement and are correct and complete. The articles of incorporation
furnished to Orius will, as of the Closing Date, reflect all amendments made
thereto and will be correct and complete.
6B. Capital Stock and Related Matters.
(i) As of the date hereof, and without giving effect to any of
the transactions contemplated hereby or by the Other Reorganization Agreements,
the authorized capital stock of LISN consists of 270,000 shares of common stock,
(A) 50,000 of which are designated Class A Common Stock ("Class A Common"), (B)
160,000 of which are designated Class B Common Stock ("Class B Common"), and (C)
60,000 of which are designated Class C Common Stock ("Class C Common"), and
250,000 shares of preferred stock, (A) 200,000 of which are designated Series A
Preferred Stock ("Series A Preferred"), and (B) 50,000 of which are designated
Series B Preferred Stock ("Series B Preferred"). No shares of Class A Common,
147,022.58 shares of Class B
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Common, no shares of Class C Common, 90,879.51 shares of Series A Preferred, and
no shares of Series B Preferred are issued and outstanding and are held
beneficially and of record by the LISN Shareholders as set forth on the LISN
Capitalization Schedule attached hereto (free and clear of all Encumbrances,
except Encumbrances pursuant to the LISN Shareholders Agreement, as defined
below) and 3,398.30 shares of Class A Common are reserved for issuance upon
exercise of Existing LISN Employee Options. Other than the outstanding shares of
LISN Common and LISN Preferred described above, LISN does not have and as of the
Closing Date will not have outstanding any stock or securities, or any stock or
securities convertible into or exercisable or exchangeable for any shares of its
capital stock or containing any profit participation features, nor any rights or
options to subscribe for or to purchase its capital stock or any stock or
securities directly or indirectly convertible into or exchangeable for its
capital stock or any stock appreciation rights or phantom stock plans. LISN is
not subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any shares of its capital stock or any warrants,
options or other rights to acquire its capital stock, other than as expressly
provided in this Agreement and, as of the Closing, pursuant to the articles of
incorporation. As of the date hereof and as of the Closing and immediately
thereafter, all of the outstanding shares of LISN's capital stock are or shall
be validly issued, fully paid and nonassessable. Each of the Existing LISN
Employee Options was issued pursuant to an option agreement in the form
previously delivered to LISN and the terms thereof are set forth in such option
agreement and the Stock Option Plan.
(ii) Prior to the execution and delivery of the Investor
Rights Agreement, except for the Shareholder Agreement dated May 28, 1999, by
and among LISN and the LISN Shareholders a party thereto (the "LISN Shareholders
Agreement") and the Company's articles of incorporation, there are no agreements
or understandings between LISN's shareholders or among any other Person and
binding upon LISN with respect to the voting or transfer of LISN's capital stock
or with respect to any other aspect of LISN's governance.
6C. Subsidiaries; Investments. Except as set forth on the
attached LISN Investments and LISN Subsidiaries Schedule, LISN does not own or
hold the right to acquire any shares of stock or any other security or interest
in any other Person. The attached LISN Investments and LISN Subsidiaries
Schedule correctly sets forth the name of each Subsidiary, the jurisdiction of
its incorporation and the Persons owning the outstanding capital stock of such
Subsidiary. Each Subsidiary is duly organized and validly existing under the
laws of the jurisdiction of its incorporation and possesses all requisite
corporate power and authority necessary to own its properties and to carry on
its businesses as now being conducted and as presently proposed to be conducted
and is qualified to do business in every jurisdiction in which its ownership of
property or the conduct of business requires it to qualify, except where the
failure to so qualify would not have a Material Adverse Effect. All of the
outstanding shares of capital stock of each Subsidiary are validly issued, fully
paid and nonassessable, and all such shares are owned by LISN or another
Subsidiary free and clear of any Lien (other than Existing Bank Liens) and are
not subject to any option or right to purchase any such shares. Except as set
forth on the LISN Investments and LISN Subsidiaries Schedule attached hereto,
LISN has never had any Subsidiaries. Except as set forth on the LISN Investments
and LISN Subsidiaries Schedule, LISN does not have any obligation to make any
additional Investments in any Person.
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6D. Authorization; No Breach. The execution, delivery and
performance of this Agreement and all of the other agreements and instruments
contemplated hereby to which LISN is a party, and the consummation of the
transactions contemplated hereby and by the Other Reorganization Agreements have
been duly authorized by LISN. This Agreement constitutes a valid and binding
obligation of LISN, enforceable in accordance with its terms, and all Other
Reorganization Agreements and instruments contemplated hereby to which LISN is a
party, when executed and delivered by LISN in accordance with the terms hereof
and thereof, shall each constitute a valid and binding obligation of LISN,
enforceable in accordance with their respective terms (except in each case as
limited by applicable bankruptcy, reorganization, insolvency or similar laws).
Except as set forth on the attached LISN Restrictions Schedule, the execution
and delivery by LISN of this Agreement and the Other Reorganization Agreements
and instruments contemplated hereby and thereby to which LISN is a party, the
consummation of the transactions contemplated by this Agreement and the Other
Reorganization Agreements to which LISN is a party and the fulfillment of and
compliance with the respective terms hereof and thereof by LISN do not and shall
not (i) conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under (whether with or without the
passage of time, the giving of notice or both), (iii) result in the creation of
any Lien upon LISN's or any of its Subsidiaries' capital stock or assets
pursuant to, (iv) give any third party the right to modify, terminate or
accelerate any obligation under, (v) result in a violation of, or (vi) require
any authorization, consent, approval, exemption or other action by or notice or
declaration to, or filing with, any third party or any court or administrative
or governmental body or agency pursuant to, LISN's articles of incorporation or
Code of Regulations, any of its Subsidiaries' charter or Code of Regulations or
bylaws, or any law, statute, rule or regulation to which LISN or any of its
Subsidiaries is subject, or any agreement, instrument, order, judgment or decree
to which LISN or any of its Subsidiaries is subject, except in such cases in
which the failure to obtain any such authorization, consent, approval, exemption
or to provide such notice or make such filing could not reasonably be expected
to have a Material Adverse Effect (it being understood and agreed that this
exception does not apply to any representation as to any contract, agreement or
document required to be listed on the attached LISN Contracts Schedule). Neither
LISN, any of its Subsidiaries nor any of the LISN Shareholders is a party to or
bound by any written or, to the Knowledge of LISN, oral agreement or
understanding with respect to an LISN Transaction other than this Agreement and
the other agreements contemplated hereby. Neither LISN, nor to LISN's Knowledge,
HIG has breached any of its respective obligations pursuant to the Exclusivity
Agreement.
6E. Financial Statements. Attached hereto as the LISN
Financial Statements Schedule are the following financial statements:
(i) the audited balance sheets of LISN, Inc. as of December
31, 1996, December 31, 1997 and December 31, 1998, and the related statements of
income and cash flows (or the equivalent) for the fiscal years then ended; and
(ii) the unaudited consolidated balance sheet of LISN as of
August 31, 1999 (the "LISN Latest Balance Sheet"), and the related statements of
income and cash flows (or the equivalent) for the eight-month period then ended.
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Each of the foregoing financial statements (including in all cases the notes
thereto, if any) when delivered pursuant to Section 6M above is consistent with
the books and records of LISN and its Subsidiaries, fairly presents the
financial condition and operating results of LISN and its Subsidiaries and has
been prepared in accordance with GAAP consistently applied throughout the
periods covered thereby, subject in the case of the unaudited financial
statements to the absence of footnote disclosures and to normal year-end audit
adjustments (none of which footnote disclosures or year-end audit adjustments
would, alone or in the aggregate, be materially adverse to the business,
operations, assets, liabilities, financial condition, operating results, cash
flow or net worth of LISN and its Subsidiaries, taken as a whole).
6F. Absence of Undisclosed Liabilities. Except as set forth on
the attached LISN Liabilities Schedule and other than any Liability which
individually is in an amount less than $50,000 and which collectively with all
other Liabilities arising from the same or similar facts or circumstances is
less than $150,000 in the aggregate, neither LISN nor any of its Subsidiaries
has any Liability arising out of transactions entered into at or prior to the
date hereof, or any action or inaction at or prior to the date hereof, or any
state of facts existing at or prior to the date hereof, other than: (i)
Liabilities set forth on the liabilities side of the LISN Latest Balance Sheet
(including any notes thereto), (ii) Liabilities which have arisen after the date
of the LISN Latest Balance Sheet in the ordinary course of business (none of
which is a Liability resulting from noncompliance with any applicable laws,
breach of contract, breach of warranty (in excess of any warranty reserve
specifically established with respect thereto and included on the LISN Latest
Balance Sheet), tort, infringement, claim or lawsuit) and (iii) other
Liabilities expressly disclosed in the Schedules referred to in this Section 6.
6G. Accounts Receivable. Except as set forth on the attached
LISN Accounts Receivable Schedule, all accounts receivable reflected on the LISN
Latest Balance Sheet and all accounts receivable to be reflected on LISN's and
its Subsidiaries' books and records as of the Closing Date (net of allowances
for doubtful accounts as reflected thereon and as determined in accordance with
GAAP consistently applied) are or shall be valid receivables arising in the
ordinary course of business, and are or shall be current. Except as set forth on
the attached LISN Accounts Receivable Schedule, no Person has any Lien on such
receivables or any part thereof, other than Existing Bank Liens, and no
agreement for deduction, free goods, discount or other deferred price or
quantity adjustment has been made with respect to any such receivables.
6H. Service Warranty; Service Certifications.
(i) All services rendered by LISN and its Subsidiaries
(whether directly or indirectly through independent contractors) have been in
conformity in all material respects with all applicable contractual commitments
and all express warranties, and neither LISN nor any of its Subsidiaries has nor
shall have any Liability for replacement or repair or for other damages relating
to or arising from any of such services, except for amounts incurred in the
ordinary course of business which are immaterial in the aggregate. Neither LISN
nor any of its Subsidiaries has been notified in writing of any claims for (and
LISN has no Knowledge of any threatened claims for) any extraordinary warranty
obligations relating to any of its products or services.
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(ii) LISN and its Subsidiaries hold all material
registrations, accreditations and other certifications required for the conduct
of their respective businesses, except where the failure to hold such
registrations, accreditations and other certifications could not reasonably be
expected to have a Material Adverse Effect (all of such registrations,
accreditations and certifications being referred to herein as "Service
Certifications"). LISN and its Subsidiaries are in compliance with the terms and
conditions of all such Service Certifications and no written (and to LISN's
Knowledge, no oral) notices have been received by LISN or any of its
Subsidiaries alleging the failure to hold any Service Certification.
6I. Service Liability. Except as set forth on the attached
LISN Service Liability Schedule, neither LISN nor any of its Subsidiaries has
any Liability (and, to LISN's Knowledge, there is no reasonable basis for any
present or future action, suit, proceeding, hearing, investigation, charge,
complaint, claim or demand against it giving rise to any Liability) arising out
of any injury to individuals or property with respect to any services rendered
by LISN or any of its Subsidiaries.
6J. No Material Adverse Effect. Since June 30, 1999, there has
occurred no fact, event or circumstance which has had or would reasonably be
expected to have a Material Adverse Effect.
6K. Absence of Certain Developments. Except as expressly
contemplated by this Agreement or as set forth on the attached LISN Developments
Schedule, since June 30, 1999, neither LISN nor any of its Subsidiaries has:
(i) issued any notes, bonds or other debt securities or any
capital stock or other equity securities or any securities or rights
convertible, exchangeable or exercisable into any capital stock or other equity
securities;
(ii) borrowed any amount or incurred or become subject to any
material Liabilities, except current Liabilities incurred in the ordinary course
of business consistent with past practice;
(iii) discharged or satisfied any material Lien or paid any
material obligation or Liability, other than current Liabilities paid in the
ordinary course of business;
(iv) declared, set aside or made any payment or distribution
of cash or other property to any of LISN's shareholders with respect to such
shareholder's capital stock or other equity securities or purchased, redeemed or
otherwise acquired any shares of its capital stock or other equity securities
(including any warrants, options or other rights to acquire its capital stock or
other equity securities);
(v) mortgaged or pledged any of its properties or assets or
subjected them to any Lien, except for Permitted Encumbrances;
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(vi) sold, assigned, transferred, leased, licensed or
otherwise encumbered any of its tangible assets, except in the ordinary course
of business consistent with past practice, or canceled any material debts or
claims;
(vii) sold, assigned, transferred, leased, licensed or
otherwise encumbered any material Intellectual Property Rights or other
intangible assets, disclosed any material proprietary confidential information
to any Person (other than to Orius and the Orius Stockholders Representative and
other than in the ordinary course of business consistent with past practice in
circumstances in which it has imposed reasonable confidentiality restrictions),
or abandoned or permitted to lapse any Intellectual Property Rights;
(viii) with respect to any of the 35 most highly compensated
employees of LISN and its Subsidiaries on a consolidated basis, made or granted
any bonus or any wage or salary increase (except as required by pre-existing
contracts described on the attached LISN Contracts Schedule), or, with respect
to any employee or group of employees, made or granted any increase in any
employee benefit plan or arrangement, or amended or terminated any existing
employee benefit plan or arrangement or adopted any new employee benefit plan or
arrangement;
(ix) entered into any employment contract involving gross
annual compensation aggregating $75,000 or more or collective bargaining
agreement, written or oral, or modified the terms of any existing such contract
or agreement.
(x) suffered any extraordinary losses or waived any rights of
material value (whether or not in the ordinary course of business or consistent
with past practice) in excess of $100,000 in the aggregate;
(xi) other than as contemplated by the capital expenditure
schedule delivered to the Orius Stockholders Representative during the course of
its due diligence review of LISN (which schedule is attached to the LISN
Developments Schedule as Exhibit 1), made capital expenditures or commitments
therefor that aggregate in excess of $100,000;
(xii) delayed or postponed the payment of any accounts payable
or any other liability or obligation or agreed with any party to extend the
payment date of any accounts payable or accelerated the collection of any
accounts or notes receivable;
(xiii) made any loans or advances to, guarantees for the
benefit of, or any Investments in, any Persons (other than advances to LISN's
employees in the ordinary course of business consistent with past practice) in
excess of $25,000;
(xiv) made any charitable contributions or pledges exceeding
in the aggregate $25,000;
(xv) suffered any damage, destruction or casualty loss
exceeding in the aggregate $100,000, whether or not covered by insurance;
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(xvi) made any change in any method of accounting or
accounting policies or made any write-down in the value of its inventory that is
material or that is other than in the usual, regular and ordinary course of
business consistent with past practice;
(xvii) made any Investment in any Subsidiary, other than those
Subsidiaries listed on the LISN Investments and LISN Subsidiaries Schedule, or
taken any steps to incorporate any Subsidiary;
(xviii) entered into any agreement or arrangement prohibiting
or restricting it from freely engaging in any business or otherwise restricting
the conduct of its business;
(xix) entered into any contract other than in the ordinary
course of business consistent with past practice, entered into any other
material transaction, whether or not in the ordinary course of business or
consistent with past practice, or materially changed any business practice; or
(xx) agreed, whether orally or in writing, to do any of the
foregoing.
6L. Assets. Except as set forth on the attached LISN Assets
Schedule, LISN and its Subsidiaries have good and valid title to, a valid
leasehold interest in, or a valid license to use, the properties and assets,
tangible or intangible, shown on the LISN Latest Balance Sheet or acquired
thereafter, free and clear of all Liens, except for properties and assets
disposed of in the ordinary course of business since the date of the Latest
Balance Sheet and except for Liens disclosed on the LISN Latest Balance Sheet
(including any notes thereto) and Permitted Encumbrances and such assets consist
of all of the material assets and properties necessary for the conduct of its
business as presently conducted.
6M. Tax Matters.
(i) Except as set forth on the attached LISN Taxes Schedule:
(a) LISN and its Subsidiaries have filed all Tax
Returns which it is required to file under applicable laws and
regulations, and all such Tax Returns are complete and correct and have
been prepared in compliance with all applicable laws and regulations;
(b) LISN and its Subsidiaries have paid all Taxes due
and owing by it (whether or not such Taxes are shown or required to be
shown on a Tax Return) and has withheld and paid over to the
appropriate taxing authority all Taxes which it is required to withhold
from amounts paid or owing to any employee, independent contractor,
shareholder, creditor or other third party;
(c) neither LISN nor any of its Subsidiaries has
waived any statute of limitations with respect to any Taxes or agreed
to any extension of time for filing any Tax Return which has not been
filed; and neither LISN nor any of its Subsidiaries has consented
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to extend to a date later than the date hereof the period in which any
Tax may be assessed or collected by any Taxing Authority;
(d) the accrual for Taxes on the LISN Latest Balance
Sheet would be adequate to pay all Tax liabilities of LISN and its
Subsidiaries if its current tax year were treated as ending on the date
of the LISN Latest Balance Sheet (excluding any amount recorded which
is attributable solely to timing differences between book and Tax
income);
(e) since December 31, 1998, neither LISN nor any of
its Subsidiaries has incurred any liability for Taxes other than in the
ordinary course of business;
(f) the federal income Tax Returns of LISN and its
Subsidiaries have not been audited and are open for all tax years after
December 31, 1996;
(g) no foreign, federal, state or local tax audits or
administrative or judicial Tax proceedings are pending or being
conducted with respect to LISN or any of its Subsidiaries;
(h) neither LISN nor any of its Subsidiaries has
received from any foreign, federal, state or local taxing authority
(including jurisdictions where LISN or any of its Subsidiaries has
filed Tax Returns) any (i) written notice indicating an intent to open
an audit or other review, (ii) request for information related to Tax
matters or (iii) notice of deficiency or proposed adjustment for any
amount of Tax proposed, asserted or assessed by any taxing authority
against LISN or any of its Subsidiaries;
(i) no claim has ever been made by a taxing authority
in a jurisdiction where LISN or any of its Subsidiaries do not file Tax
Returns that LISN or any of its Subsidiaries are or may be subject to
Taxes assessed by such jurisdiction;
(j) neither LISN nor any of its Subsidiaries has been
a member of an Affiliated Group (other than a group the common parent
of which was LISN);
(k) neither LISN nor any of its Subsidiaries is a
party to or bound by any Tax allocation or Tax sharing agreement;
(l) there are no Liens for Taxes (other than
Permitted Encumbrances) upon the assets of LISN or any of its
Subsidiaries; and
(m) neither LISN nor any of its Subsidiaries shall be
required to (i) as a result of a change in method of accounting for a
taxable period ending on or prior to the Closing Date, include any
adjustment in taxable income for any taxable period (or portion
thereof) ending after the Closing Date, (ii) as a result of any
"closing agreement," as described in Section 7121 of the Code (or any
corresponding provision of state, local or foreign income Tax law)
executed on or before the Closing Date, include any item of income in,
or exclude any item of deduction from, taxable income for any taxable
period (or portion
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thereof) ending after the Closing Date, (iii) as a result of any sale
reported on the installment method where such sale occurred on or prior
to the Closing Date, include any item of income in, or exclude any item
of deduction from, taxable income for any taxable period (or portion
thereof) ending after the Closing Date, or (iv) as a result of any
prepaid amount received on or prior to the Closing Date, include any
item of income in, or exclude any item of deduction from, taxable
income for any taxable period (or portion thereof) ending after the
Closing Date; and
(ii) Neither LISN nor any of its Subsidiaries:
(a) has made an election under Section 341(f) of the
Code;
(b) is presently liable for the Taxes of another
Person (other than any of LISN and its Subsidiaries) (1) under Treas.
Reg. ss.1.1502-6 (or comparable provisions of state, local or foreign
law), (2) as a transferee or successor or (3) by contract or indemnity
or otherwise;
(c) is a party to any agreement, contract,
arrangement, or plan that has resulted or would result, separately or
in the aggregate, in the payment of any "excess parachute payment"
within the meaning of Section 280G of the Code (or any corresponding
provision of state, local or foreign law); or
(d) is or 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.
6N. Contracts and Commitments.
(i) Except as expressly contemplated by this Agreement or as
set forth on the attached LISN Contracts Schedule, the attached LISN
Intellectual Property Schedule, the attached LISN Employees Schedule, or the
attached LISN Employee Benefits Schedule, neither LISN nor any of its
Subsidiaries is a party to or bound by any written or oral:
(a) pension, profit sharing, stock option, employee
stock purchase or other plan or arrangement providing for deferred or
other compensation to employees or any other employee benefit plan,
arrangement or practice, whether formal or informal;
(b) collective bargaining agreement or any other
contract with any labor union, or severance agreements, programs,
policies or arrangements;
(c) management agreement, contract for the employment
of any officer, individual employee or other Person on a full-time,
part-time, consulting or other basis providing annual cash or other
compensation in excess of $75,000 or providing for the payment of any
cash or other compensation or benefits upon the consummation of the
transactions contemplated hereby;
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(d) contract or agreement requiring the consent of
any party thereto upon a change in control of LISN or such Subsidiary,
containing any provision which would result in a modification of any
rights or obligations of any party thereunder upon a change in control
of LISN or such Subsidiary or which would provide any party any remedy
(including rescission or liquidated damages) in the event of a change
in control of LISN or such Subsidiary;
(e) contract under which it has advanced or loaned
monies to any other Person or otherwise agreed to advance, loan or
invest any funds (other than advances to LISN's employees in the
ordinary course of business consistent with past practice);
(f) agreement or indenture relating to borrowed money
or other Indebtedness or the mortgaging, pledging or otherwise placing
a Lien on any material asset or material group of assets of LISN or any
of its Subsidiaries or any letter of credit arrangements;
(g) guaranty of any obligation for borrowed money or
otherwise (other than endorsements made for collection in the ordinary
course of business);
(h) lease or agreement under which LISN or any of its
Subsidiaries is lessee of or holds or operates any property, real or
personal, owned by any other Person, except for any lease of personal
or real property under which the aggregate annual rental payments do
not exceed $50,000;
(i) lease or agreement under which LISN or any of its
Subsidiaries is lessor of or permits any third party to hold or operate
any property, real or personal, owned or controlled by LISN or such
Subsidiary;
(j) license or royalty agreements;
(k) nondisclosure or confidentiality agreements;
(l) local service agreements (including cleaning,
guard service, lawn and snow removal) and maintenance agreements
(including vehicle and equipment maintenance agreements) involving
annual payments in excess of $50,000;
(m) contract or group of related contracts with the
same party or group of affiliated parties for the purchase of raw
materials, commodities, supplies, products, equipment or other personal
property or for the receipt of services under which the undelivered
balance of such products and services has a selling price in excess of
$150,000;
(n) contract or group of related contracts with the
same party or group of affiliated parties for the sale of raw
materials, commodities, supplies, products or other personal property
or for the furnishing of services under which the undelivered balance
of
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such products or services due from LISN or any of its Subsidiaries has
a selling price in excess of $750,000;
(o) other contract or group of related contracts with
the same party or group of affiliated parties continuing over a period
of more than six months from the date or dates thereof, not terminable
by LISN or any of its Subsidiaries upon 30 days' or less notice without
penalty or involving more than $75,000;
(p) contract or group of related contracts requiring
the payment of any fee, penalty or other amount by LISN or any of its
Subsidiaries in the event of any failure to perform or late performance
of such contract or contracts by LISN or such Subsidiary;
(q) contract relating to the marketing, advertising
or promotion of its products;
(r) warranty agreement with respect to services
provided (other than agreements containing commercially standard terms
and conditions) or indemnity agreement with any supplier under which it
is obligated to indemnify such supplier against product liability
claims;
(s) agreements relating to the ownership of or
investments in any business or enterprise, including investments in
joint ventures and minority equity investments;
(t) assignment, indemnification or other agreement
with respect to any intangible property (including any Intellectual
Property Rights);
(u) agreement under which it has granted any Person
any registration rights (including demand or piggyback registration
rights);
(v) broker, agent, sales representative, distribution
agreement or agreement relating to the export and/or import of any
goods or equipment;
(w) power of attorney or other similar agreement or
grant of agency;
(x) contract or agreement prohibiting it from freely
engaging in any business or competing anywhere in the world; or
(y) other agreement which is material to its
operations or business prospects or involves an annual consideration in
excess of $250,000, whether or not in the ordinary course of business.
(ii) LISN Contracts Schedule lists each currently outstanding
bid or proposal for business submitted by LISN or any of its Subsidiaries in
excess of $1,000,000.
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(iii) All of the contracts, agreements and instruments set
forth or required to be set forth on the attached LISN Contracts Schedule are
valid, binding and enforceable against LISN (and, to the Knowledge of LISN,
against the other party or parties thereto) in accordance with their respective
terms (except in each case as limited by applicable bankruptcy, reorganization,
insolvency or similar laws) and, assuming they are enforceable against the other
parties thereto, shall be in full force and effect without penalty in accordance
with their terms upon consummation of the transactions contemplated hereby. Each
of LISN and its Subsidiaries has performed all material obligations required to
be performed by it and is not in default under or in breach of nor in receipt of
any written claim (and to its Knowledge there are no claims) of default or
breach under any contract, agreement or instrument to which LISN or such
Subsidiary is subject; 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 LISN or any of its Subsidiaries under any material contract,
agreement or instrument to which LISN or any of its Subsidiaries is subject;
except as set forth on the attached LISN Contracts Schedule, neither LISN nor or
any of its Subsidiaries has any present expectation or intention of not fully
performing on a timely basis all such obligations required to be performed by
LISN or such Subsidiary under any contract, agreement or instrument to which
LISN or such Subsidiary is subject; and neither LISN nor or any of its
Subsidiaries has any Knowledge of any breach or cancellation or anticipated
cancellation by the other parties to any contract, agreement, instrument or
commitment to which it is a party. Neither LISN nor any of its Subsidiaries is a
party to any contract, agreement or commitment the performance of which could
reasonably be expected to have a Material Adverse Effect.
(iv) LISN has made available to Orius' Shareholder
Representative's special counsel a true and correct copy of each of the written
instruments, plans, contracts and agreements and an accurate description of each
of the oral arrangements, contracts and agreements which are referred to on the
attached LISN Contracts Schedule, together with all amendments, waivers or other
changes thereto.
6O. Intellectual Property Rights.
(i) The attached LISN Intellectual Property Schedule contains
a complete and accurate list of all (a) patented or registered Intellectual
Property Rights owned or, to LISN's Knowledge, used by LISN or any of its
Subsidiaries, (b) pending patent applications and applications for other
registrations of Intellectual Property Rights filed by or on behalf of LISN or
any of its Subsidiaries, and (c) material unregistered Intellectual Property
Rights owned or used by LISN or any of its Subsidiaries. The attached LISN
Intellectual Property Schedule also contains a complete and accurate list of all
licenses and other rights granted by LISN or any of its Subsidiaries to any
third party with respect to any Intellectual Property Rights and all licenses
and other rights granted by any third party to LISN or any of its Subsidiaries
with respect to any Intellectual Property Rights, in each case identifying the
subject Intellectual Property Rights. Each of LISN and its Subsidiaries owns and
possesses all right, title and interest to, or has the right to use pursuant to
a valid and enforceable license, all Intellectual Property Rights necessary for
the operation of its business, free and clear of all Liens other than Existing
Bank Liens. Except as set forth on the attached LISN Intellectual Property
Schedule, the loss or expiration of any Intellectual Property Right or related
group of Intellectual Property Rights owned or used by LISN or any of its
Subsidiaries has not had
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and would not reasonably be expected to have a Material Adverse Effect, and no
loss or expiration of any Intellectual Property Right is threatened, pending or,
to LISN's Knowledge, reasonably foreseeable. Each of LISN and its Subsidiaries
has taken commercially reasonable steps to maintain and protect the Intellectual
Property Rights which it owns.
(ii) Except as set forth on the attached LISN Intellectual
Property Schedule, (a) there have been no claims made against LISN or any of its
Subsidiaries asserting the invalidity, misuse or unenforceability of any of the
Intellectual Property Rights owned or used by LISN or any of its Subsidiaries
and, to LISN's Knowledge, there is no basis for any such claim, (b) neither LISN
nor any of its Subsidiaries has received any written notices of, and to LISN's
Knowledge neither LISN nor any of its Subsidiaries has received any unwritten
notice of, and has no Knowledge of, any facts which indicate a likelihood of,
any infringement or misappropriation by, or conflict with, any third party with
respect to any Intellectual Property Rights (including any demand or request
that LISN or any of its Subsidiaries license any rights from a third party), (c)
to LISN's Knowledge the conduct of LISN's and its Subsidiaries' businesses has
not infringed, misappropriated or conflicted with and does not infringe,
misappropriate or conflict with any Intellectual Property Rights of other
Persons, and (d) to LISN's Knowledge, the Intellectual Property Rights owned by
or licensed to LISN or any of its Subsidiaries have not been infringed,
misappropriated or conflicted by other Persons. The transactions contemplated by
this Agreement will have no Material Adverse Effect on LISN's and its
Subsidiaries' right, title or interest in and to the Intellectual Property
Rights listed on the LISN Intellectual Property Schedule, and all of such
Intellectual Property Rights shall be owned or available for use by LISN and its
Subsidiaries on terms and conditions immediately after the Closing which are
substantially identical to those in effect prior to Closing.
6P. Litigation, etc. Except as set forth on the attached LISN
Litigation Schedule, there are no, and since the date of acquisition of LISN by
Xxxxxx Xxxxx there have not been any, actions, suits, proceedings (including any
arbitration proceedings), orders, investigations or claims pending or, to LISN's
Knowledge, threatened against or any material actions, suits, proceedings
(including any arbitration proceedings), orders, investigations or claims
affecting LISN or any of its Subsidiaries (or to LISN's Knowledge, pending or
threatened against or any actions, suits, proceedings (including any arbitration
proceedings), orders, investigations or claims affecting any of the officers,
directors or employees of LISN with respect to its business activities), or
pending or threatened by LISN or any of its Subsidiaries against any Person, at
law or in equity, or before or by any governmental department, commission,
board, bureau, agency or instrumentality (including any actions, suits,
proceedings or investigations with respect to the transactions contemplated by
this Agreement); neither LISN nor any of its Subsidiaries is subject to any
arbitration proceedings under collective bargaining agreements or otherwise or
any governmental investigations or inquiries; and, to LISN's Knowledge, there is
no basis for any of the foregoing. The foregoing includes, without limitation,
actions pending or threatened involving the prior employment of any of the 35
most highly compensated employees of LISN and its Subsidiaries on a consolidated
basis, their use in connection with LISN's or any of its Subsidiaries'
businesses of any information or techniques allegedly proprietary to any of
their former employers or their obligations under any agreements with prior
employers. Except as set forth on the attached LISN Litigation Schedule, LISN is
fully insured with respect to each of the matters set forth on the attached LISN
Litigation Schedule, and neither LISN nor any of its Subsidiaries is subject to
any judgment, order or decree of any court or other
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governmental agency, and neither LISN nor any of its Subsidiaries has received
any opinion or memorandum or advice from legal counsel to the effect that it is
exposed, from a legal standpoint, to any liability which could have a Material
Adverse Effect.
6Q. Brokerage. Except for the obligations stated on the
attached LISN Contracts Schedule, there are and shall be no claims for brokerage
commissions, finders' fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement to which LISN or any of its Subsidiaries is a party or to which LISN
or any of its Subsidiaries is subject, it being acknowledged and agreed that any
such brokerage commissions, finder's fees or similar compensation shall be
deemed to be Indebtedness of LISN for purposes of this Agreement.
6R. Insurance. The attached LISN Insurance Schedule contains a
description of each insurance policy maintained by LISN and any of its
Subsidiaries with respect to its and any of its Subsidiaries' properties, assets
and business, together with a statement of the aggregate amount of claims paid
out, and claims pending, under each such insurance policy or other arrangement
through the date hereof. All such policies are in full force and effect as of
the Closing, all premiums due thereon have been paid, and LISN and its
Subsidiaries are otherwise in compliance in all material respects with the terms
and provisions of such policies. Neither LISN nor any of its Subsidiaries is in
default with respect to its obligations under any insurance policy maintained by
it, and neither LISN nor any of its Subsidiaries has received any notice of
cancellation or non-renewal of any such policy or arrangement nor is the
termination of any such policies or arrangements threatened. Neither LISN nor
any of its Subsidiaries has ever been denied insurance coverage, and there is no
claim pending under any policies or arrangements as to which coverage has been
questioned, denied or disputed by the underwriters of such policies or
arrangements. Neither LISN nor any of its Subsidiaries has received any notice
from any of its insurance carriers that any insurance premiums will be increased
in the future or that any insurance coverage presently provided for will not be
available to LISN or any of its Subsidiaries in the future on substantially the
same terms as now in effect and none of such policies or arrangements provides
for any retrospective premium adjustment, experienced-based liability or loss
sharing arrangement affecting LISN or any of its Subsidiaries. A true and
complete list of all outstanding claims for medical expenses in excess of
$10,000 made by or with respect to any single employee of LISN or any of its
Subsidiaries is set forth in the LISN Insurance Schedule. Except as set forth on
the attached LISN Insurance Schedule, LISN has no self-insurance or co-insurance
programs, and the reserves set forth on the LISN Latest Balance Sheet are
adequate to cover all anticipated Liabilities with respect to any such
self-insurance or co-insurance programs.
6S. Employees. To LISN's Knowledge, no executive or key
employee of LISN or any of its Subsidiaries and no group of employees of LISN or
any of its Subsidiaries has any plans to terminate employment with LISN or such
Subsidiary. LISN has no material labor relations problems (including any union
organization activities, threatened or actual strikes or work stoppages or
material grievances). None of LISN, the LISN Shareholders nor, to LISN's
Knowledge, any of its other employees or consultants are subject to any
noncompete, nondisclosure, confidentiality, employment, consulting or other
agreement or judgment, decree or order of any court or administrative agency,
relating to, affecting or in conflict with the present or proposed business
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activities of LISN and its Subsidiaries or such Person's duties to LISN and its
Subsidiaries, except for agreements between LISN and its present and former
employees. LISN has not received any written notice alleging that any violation
of any such agreements has occurred, and to LISN's Knowledge neither LISN nor
any of its Subsidiaries has received any unwritten notice thereof. The LISN
Employees Schedule attached hereto contains a correct and complete list of all
employees and consultants of LISN which have executed and delivered to LISN any
agreement providing for the nondisclosure by such Person of any confidential
information of LISN.
6T. ERISA.
(i) Except as set forth on the attached LISN Employee Benefits
Schedule, LISN does not have any obligation to contribute to (or any other
liability, including current or potential withdrawal liability, with respect to)
any "multi-employer plan" (as defined in Section 3(37) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")).
(ii) LISN does not maintain or have any obligation to
contribute to (or any other liability with respect to) any plan or arrangement,
whether or not terminated, which provides medical, health, life insurance or
other welfare-type benefits for current or future retired or terminated
employees or any dependents of such employees (except for limited continued
medical benefit coverage required to be provided under Section 4980B of the Code
("COBRA") or as required under applicable state law).
(iii) LISN does not maintain, contribute to or have any actual
or potential liability under (or with respect to) any employee plan which is a
"defined benefit plan" (as defined in Section 3(35) of ERISA).
(iv) Except as set forth on the attached LISN Employee
Benefits Schedule, LISN does not maintain, contribute to or have any actual or
potential liability under (or with respect to) any employee plan which is a
"defined contribution plan" (as defined in Section 3(34) of ERISA) (the
"Plans"), whether or not terminated.
(v) Except as set forth on the attached LISN Employee Benefits
Schedule under the heading "Other Plans" (the "Other Plans"), LISN does not
maintain, contribute to or have any actual or potential liability under (or with
respect to) any plan or arrangement providing benefits or remuneration to
current or former employees or independent contractors, including any employment
contract, bonus or incentive plan, plan for deferred compensation, employee
health or other welfare benefit plan, severance arrangement or other material
policy, program or arrangement, whether or not terminated. The attached LISN
Employee Benefits Schedule sets forth the aggregate amount of bonuses and other
incentive compensation reasonably expected to be paid by LISN for the fiscal
year ending December 31, 1999.
(vi) With respect to the Plans set forth on the attached LISN
Employee Benefits Schedule, all required payments, premiums, contributions,
reimbursements or accruals for all periods ending prior to or as of the Closing
Date shall have been made or properly accrued. None of the Plans has any
material unfunded liabilities which are not reflected on the Latest Balance
Sheet.
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(vii) Except as set forth on the attached LISN Employee
Benefits Schedule, the Plans and all related trusts, insurance contracts and
funds have been maintained, funded and administered in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
applicable laws. Except as set forth on the attached LISN Employee Benefits
Schedule, LISN has timely complied with all reporting and disclosure obligations
as they apply to the Plans, and LISN has complied with the requirements of
COBRA. To LISN's Knowledge, none of LISN or any trustee or administrator of any
Plan has engaged in any transaction with respect to the Plans which would
subject LISN or any trustee or administrator of the Plans, or any party dealing
with any such Plan, nor do the transactions contemplated by this Agreement
constitute transactions which would subject any such party, to either a civil
penalty assessed pursuant to Part 502(i) of ERISA, or any other penalty or
excise tax or the tax or penalty on prohibited transactions imposed by Section
4975 of the Code or any other penalty or excise tax. No actions, suits or claims
with respect to the assets of the Plans (other than routine claims for benefits)
are pending or, to LISN's Knowledge, threatened which could result in or subject
LISN to any liability and there are no circumstances which would give rise to or
be expected to give rise to any such actions, suits or claims.
(viii) The attached LISN Employee Benefits Schedule sets forth
whether or not a favorable determination letter from the Internal Revenue
Service has been received by LISN with respect to each Plan that it is qualified
under Section 401(a) of the Code (including requirements imposed by the Tax
Reform Act of 1986 and subsequent legislation), and, to LISN's Knowledge, there
are no circumstances which would cause a Plan to lose such qualified status.
(ix) For purposes of this Section 6T, "LISN" shall be deemed
to include all organizations under common control with LISN pursuant to Section
414 of the Code.
6U. Compliance with Laws; Permits; Certain Operations. Except
as set forth on the attached LISN Compliance Schedule:
(i) Each of LISN and its Subsidiaries is in material
compliance with and, throughout the immediately preceding 5 year period has
complied in all material respects with, all applicable laws, ordinances, codes,
rules, requirements and regulations of foreign, federal, state and local
governments and all agencies thereof relating to the operation of its business
and the maintenance and operation of its properties and assets. During the five
year period ending on the Closing Date, no written (or, to LISN's Knowledge,
oral) notices have been received by and no claims have been filed against LISN
or any of its Subsidiaries alleging a violation of any such laws, ordinances,
codes, rules, requirements or regulations.
(ii) Each of LISN and its Subsidiaries holds and is in
compliance with all permits, licenses, bonds, approvals, certificates,
registrations, accreditations and other authorizations of all foreign, federal,
state and local governmental agencies required for the conduct of its business
and the ownership of its properties (including as the same relate to
Environmental and Safety Requirements), and the attached LISN Permits Schedule
sets forth a description of all of such material permits, licenses, bonds,
approvals, certificates, registrations, accreditations and other authorizations.
To LISN's Knowledge, no notices have been received by LISN or any of its
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Subsidiaries alleging the failure to hold any of the foregoing. All of such
permits, licenses, bonds, approvals, accreditations, certificates, registrations
and authorizations will be available for use by LISN and its Subsidiaries, as
the case may be, immediately after the Closing.
6V. Environmental and Safety Matters.
(i) Except as set forth on the attached LISN Environmental
Schedule:
(a) Each of LISN and its Subsidiaries has complied in
all material respects with and is in material compliance with all
Environmental and Safety Requirements. Neither LISN nor any of its
Subsidiaries have received any written or oral notice, report or
information regarding any actual or alleged violation of Environmental
and Safety Requirements or any liabilities or potential liabilities
relating to it or its facilities arising under Environmental and Safety
Requirements.
(b) Neither this Agreement nor the consummation of
the transactions contemplated hereby will result in any obligations for
site investigation or cleanup, or notification to or consent of any
government agencies or third parties under any Environmental and Safety
Requirements (including any so called "transaction-triggered" or
"responsible property transfer" laws and regulations).
(c) None of the following exists at any property or
facility owned, occupied or operated by LISN or any of its
Subsidiaries:
(1) underground storage tanks;
(2) asbestos-containing material in any
form or condition;
(3) materials or equipment containing
polychlorinated biphenyls; or
(4) landfills, surface impoundments or
other disposal areas.
(d) Neither LISN nor any of its Subsidiaries has
treated, stored, disposed of, arranged for or permitted the disposal
of, transported, handled or Released any substance (including any
hazardous substance) or owned, occupied or operated any facility or
property (and no such property or facility is contaminated by any such
substance) in a manner that has given or could give rise to any
Liabilities (including any Liability for response costs, corrective
action costs, personal injury, natural resource damages, property
damage or attorneys fees or any investigative, corrective or remedial
obligations) pursuant to CERCLA or any other Environmental and Safety
Requirements.
(e) Neither LISN nor any of its Subsidiaries has,
either expressly or by operation of law, assumed or undertaken any
liability or corrective, investigatory or remedial obligation of any
other Person relating to any Environmental and Safety Requirements.
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(f) No Environmental Lien has attached to any
property owned, leased or operated by LISN or any of its Subsidiaries.
6W. Affiliated Transactions. Except as set forth on the
attached LISN Affiliated Transactions Schedule, no officer, director,
shareholder or Affiliate of LISN or any of its Subsidiaries or, to LISN's
Knowledge, any individual related by blood, marriage or adoption to any such
individual or any entity in which any such Person or individual owns any
beneficial interest, is a party to any agreement, contract, commitment or
transaction with LISN or any Subsidiary of LISN or has any material interest in
any material property used by LISN or any of its Subsidiaries (including any
Intellectual Property Rights) involving in any case liabilities or assets with
fair market value of $100,000 or more, or involving payments or payment
obligations aggregating $100,000 in any twelve-month period.
6X. Suppliers and Customers. The LISN Suppliers and Customers
Schedule attached hereto sets forth a list of the top ten customers and
suppliers of LISN by dollar volume of sales and purchases, respectively, for the
fiscal year ended December 31, 1998. Neither LISN nor any of its Subsidiaries
has received any indication from any material supplier to the effect that, and
to LISN's Knowledge, neither LISN nor any of its Subsidiaries has any reason to
believe that, such supplier will stop, materially decrease the rate of, or
materially change the terms (whether related to payment, price or otherwise)
with respect to, supplying materials, products or services to any of LISN and
its Subsidiaries (whether as a result of the consummation of the transactions
contemplated hereby or otherwise). To LISN's Knowledge, neither LISN nor any of
its Subsidiaries has received any indication from any material customer of LISN
to the effect that, and to LISN's Knowledge, neither LISN nor any of its
Subsidiaries has any reason to believe that, such customer will stop, or
materially decrease the rate of, buying products of LISN (whether as a result of
the consummation of the transactions contemplated hereby or otherwise).
6Y. Real Property.
(i) The LISN Real Property Schedule sets forth the address and
lists and describes briefly all land, together with all buildings located
thereon, owned by LISN or any of its Subsidiaries (the "LISN Owned Real
Property"). With respect to each such parcel of LISN Owned Real Property and
except as set forth on the LISN Real Property Schedule:
(a) the identified owner has good and marketable
title to the parcel of real property, free and clear of any
Lien, easement, covenant, or other restriction as of the
Closing Date, except Permitted Encumbrances;
(b) there are no pending or, to the Knowledge of
LISN, threatened condemnation, expropriation or other eminent
domain proceedings, lawsuits, or administrative actions
relating to the LISN Owned Real Property or other matters
affecting adversely the current use, occupancy, or value
thereof;
(c) the legal description for the parcel contained in
the deed describes such parcel fully and adequately, the
buildings and improvements are located within
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the boundary lines of the described parcels of land, are not
in violation of applicable setback requirements, zoning laws,
and ordinances (and none of the properties or buildings or
improvements thereon are subject to "permitted non-conforming
use" or "permitted non-conforming structure" classifications),
and do not encroach on any easement which may burden the land,
the land does not serve any adjoining property for any purpose
inconsistent with the use of the land, and the property is not
located within any flood plain or subject to any similar type
restriction for which any permits or licenses necessary to the
use thereof have not been obtained;
(d) all facilities have received all approvals of
governmental authorities (including licenses and permits)
required in connection with the ownership or operation thereof
and have been operated and maintained in accordance with
applicable laws, rules and regulations;
(e) there are no leases, subleases, licenses,
concessions, or other agreements, written or oral, granting to
any party or parties the right of use or occupancy of any
portion of the parcel of LISN Owned Real Property, other than
tenants under any leases disclosed in the LISN Real Property
Schedule who are in possession of space of which they are
entitled;
(f) there are no outstanding options or rights of
first refusal to purchase the parcel of LISN Owned Real
Property, or any portion thereof or interest therein;
(g) there are no parties (other than LISN) in
possession of the parcel of LISN Owned Real Property, other
than tenants under any leases disclosed in the LISN Real
Property Schedule who are in possession of space of which they
are entitled;
(h) all facilities located on the parcel of LISN
Owned Real Property are supplied with utilities and other
services necessary for the operation of such facilities,
including gas, electricity, water, telephone, sanitary sewer,
and storm sewer, all of which services are adequate in
accordance with all applicable laws, ordinances, rules and
regulations and are provided via public roads or via
permanent, irrevocable, appurtenant easements benefitting the
parcel of LISN Owned Real Property; and
(i) each parcel of LISN Owned Real Property abuts on
and has direct vehicular access to a public road, or has
access to a public road via a permanent, irrevocable,
appurtenant easement benefitting the parcel of real property,
and access to the property is provided by paved public
right-of-way with adequate curb cuts available.
(ii) The LISN Real Property Schedule attached hereto sets
forth a list of all of the leases, subleases and licenses ("LISN Leases") of
real property (the "Leased Real Property"), including the address of the LISN
Leased Real Property, in which LISN or any of its Subsidiaries has a leasehold,
subleasehold or licensed interest, other than any lease which may terminated by
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either party without liability to the other on less than 90 days notice or
involving aggregate annual rentals of less than $50,000, not otherwise involving
any material liability and the termination of which would not have a Material
Adverse Effect. LISN or such Subsidiary holds a valid and existing leasehold,
subleasehold or license interest under each of the LISN Leases. With respect to
each LISN Lease listed on the attached LISN Real Property Schedule, neither
LISN, any of its Subsidiaries, nor, to the Knowledge of LISN, any other party to
the LISN Lease is in breach or default under the LISN Lease, and no event has
occurred or circumstance exists which, with the delivery of notice, passage of
time or both, would constitute such a breach or default or permit the
termination, modification, or acceleration of rent under the LISN lease, there
are no disputes, oral agreements, or forbearance programs in effect as to such
LISN Lease and neither LISN nor any of its Subsidiaries has assigned,
transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in
the LISN Lease. Except for the LISN Leased Real Property, and the LISN Owned
Real Property, there is no real property which is leased or otherwise used in
LISN's business.
6Z. Regulatory Status. Since its date of incorporation,
neither LISN nor any of its Subsidiaries has been, and as of the Closing Date
shall not be, a "United States real property holding corporation," as defined in
Section 897(c)(2) of the Code and in Section 1.897-2(b) of the Treasury
Regulations issued thereunder. Neither LISN nor any of its Subsidiaries is an
"investment company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined under the
Investment Orius Act of 1940, as amended. Neither LISN nor any of its
Subsidiaries is subject to any law which regulates the incurring of Indebtedness
by LISN or such Subsidiary, including any laws relating to common contract
carriers or the sale of electricity, gas, steam, water or other public utility
services.
6AA. Disclosure. Neither this Agreement nor any of the
Schedules attached hereto nor any of the written statements, certificates or
other items prepared and delivered to LISN, the LISN Shareholders or the
Investors by or on behalf of LISN or the LISN Shareholders upon execution of
this Agreement or any of the agreements contemplated hereby or to induce the
consummation of any of the transactions contemplated hereby or thereby, when
taken together as a whole, contain any untrue statement of a material fact or
omit a material fact necessary to make the statements contained herein or
therein, in light of the circumstances in which they were made, not misleading.
There is no fact which LISN has not disclosed to executive officers of Orius (or
executive officers of its predecessor) in writing and of which any of its
officers, directors or executive employees is aware which has had or would
reasonably be expected to have a Material Adverse Effect.
6BB. Closing Date. The representations and warranties of LISN
contained in this Section 6 and elsewhere in this Agreement and all information
contained in any Exhibit, Schedule or attachment hereto or in any certificate or
other writing delivered by, or on behalf of, LISN to the Orius Stockholders
Representative pursuant to this Agreement shall be true and correct on the
Closing Date as though then made and as though the Closing Date was substituted
for the date of this Agreement throughout such representations and warranties,
except in any case in which a representation and warranty expressly refers to a
different date, in which case such representation and warranty shall be true and
correct as of such date.
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Section 7. Indemnification and Certain Other Agreements.
7A. Survival of Representations and Warranties. The
representations and warranties in this Agreement and the Schedules attached
hereto, or in any of the written statements, certificates or other items
prepared and delivered to LISN, the LISN Shareholders or the Investors by or on
behalf of Orius or the Orius Stockholders, or to Orius or the Orius Stockholders
by or on behalf of LISN or the LISN Shareholders upon execution of this
Agreement or any of the agreements contemplated hereby or to induce the
consummation of any of the transactions contemplated hereby or thereby, hereby
shall survive the Closing as follows:
(i) the representations and warranties in any of Section 5M
and Section 6M (Tax Matters), Section 5T and Section 6T (ERISA) shall terminate
sixty (60) days after the date as of which the applicable statutes of
limitations with respect to the liabilities in question expire (after giving
effect to any extensions or waivers thereof);
(ii) the representation and warranties in Section 5V and
Section 6V (Environmental and Safety Matters) shall terminate on the sixth
anniversary of the Closing Date.
(iii) the representations and warranties in Section 5U and
Section 6U (Compliance with Laws; Permits; Certain Operations) shall terminate
on the fourth anniversary of the Closing Date;
(iv) none of the representations and warranties in any of
Section 5B or Section 6B (Capital Stock and Related Matters), Section 5Q or
Section 6Q (Brokerage), the first and second sentences of Section 5D or Section
6D (Authorization; No Breach), or in any of the Orius Joinder Agreements or the
LISN Transmittal Letters shall terminate; and
(v) all other representations and warranties in this Agreement
and the Schedules attached hereto, or in any of the written statements,
certificates or other items prepared and delivered to LISN, the LISN
Shareholders or the Investors by or on behalf of Orius or the Orius
Stockholders, or to Orius or the Orius Stockholders by or on behalf of LISN or
the LISN Shareholders upon execution of this Agreement or any of the agreements
contemplated hereby or to induce the consummation of any of the transactions
contemplated hereby or thereby, shall terminate upon termination of the eighteen
month period commencing on the Closing Date; provided that any representation or
warranty in respect of which indemnity may be sought under Section 7B, and the
indemnity with respect thereto, shall survive the time at which it would
otherwise terminate pursuant to this Section 7A if written notice of the breach
or potential breach thereof giving rise to such right or potential right of
indemnity shall have been given to the Party against whom such indemnity may be
sought prior to such time. The representations and warranties in this Agreement
and the Schedules and Exhibits attached hereto or in any writing delivered in
connection with this Agreement shall survive for the periods set forth in this
Section 7A and shall in no event be affected by any investigation, inquiry or
examination made for or on behalf of any Party, any Representative or any
Investor, or the knowledge of any officer, director, shareholder, employee,
partner or agent of any of the foregoing or the acceptance by any of the
foregoing of any certificate or opinion hereunder. Without limiting the
foregoing, in no event will any disclosure pursuant to Section 4I
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or otherwise prior to the Closing serve to amend any representation or warranty
for any purpose of this Agreement, except and solely to the extent that the
notifying party (i) promptly upon discovery thereof notifies each other party to
this Agreement in reasonably detail of the facts and circumstances which would
cause the notifying party to be in breach of a representation or warranty as of
the Closing, and (ii) in connection with any dispute relating thereto carries
the burden of proving that such notifying party was not in breach of such
representation and warranty upon execution of this Agreement, in which event the
disclosure thereof in writing prior to the Closing shall, solely for purposes of
Section 7, be deemed to amend the representations and warranties identified in
such notice.
7B. General Indemnification.
(i) Indemnification by the Orius Indemnifying Stockholders.
Subject to the limitations set forth in this Section, the Orius Stockholders
(other than HIG and the Orius Warrantholders) (the "Orius Indemnifying
Stockholders") shall jointly and severally indemnify Orius, the Investors and
the LISN Shareholders and their respective Affiliates, partners, officers,
directors, employees, agents, representatives, successors and permitted assigns
(collectively, the "LISN Parties" and each individually a "LISN Party"), and
save and hold each of them harmless against as and when incurred for any and all
loss, liability, demand, claim, action, cause of action, cost, damage,
deficiency, Tax, penalty, fine or expense, whether or not arising out of third
party claims (including interest, penalties, reasonable attorneys' fees and
expenses and all amounts paid in investigation, defense or settlement of any of
the foregoing) (collectively, "Losses") which any of them may suffer, sustain or
become subject to, as a result of, in connection with, relating or incidental to
or by virtue of: (a) any breach of any representation or warranty of Orius under
this Agreement or any of the Schedules attached hereto, or in any of the written
statements, certificates or other items prepared and delivered to LISN, the LISN
Shareholders or the Investors by or on behalf of Orius or the Orius
Stockholders, upon execution of this Agreement or any of the agreements
contemplated hereby or after the date hereof and at or prior to Closing to
induce the consummation of any of the transactions contemplated hereby or
thereby; (b) any nonfulfillment or breach of any covenant, agreement or other
provision by Orius under this Agreement or any of the Schedules and Exhibits
attached hereto required to be performed or complied with by Orius at or prior
to the Closing (except to the extent waived in writing in accordance with the
terms hereof or thereof, as applicable); (c) any inaccuracy or breach of any
representation or warranty included in any Joinder Agreement, any Orius Call
Agreement or any Orius Put Agreement of which Orius had Knowledge at or prior to
the Closing, or (d) any of the matters set forth on the Orius Indemnification
Schedule attached hereto; provided that the Orius Indemnifying Stockholders
shall not have any liability under clause (a) above (other than with respect to
the representations and warranties contained in Section 5B, Section 5Q, and the
first and second sentences of Section 5D) unless the aggregate of all Losses
relating thereto for which the Orius Stockholders would, but for this proviso,
be liable exceeds $1,500,000 (the "Orius Deductible"), in which event the Orius
Indemnifying Stockholders shall be liable under clause (a) above only to the
extent that the aggregate of all Losses arising thereunder exceeds the Orius
Deductible; provided further that the Orius Indemnifying Stockholders shall not
be liable in respect of any particular Loss under clause (a) above unless the
amount thereof, individually or collectively with all Losses arising from the
same or related events or circumstances, is equal to or greater than $25,000
(the "Orius Basket"), in which event the Orius
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Indemnifying Stockholders will be liable for the full amount of each such Loss
(subject to the Orius Deductible and the Orius Cap); provided further that the
aggregate liability of any Orius Indemnifying Stockholder pursuant to this
Section 7B shall in no event exceed the product of the Orius Common Value Per
Share multiplied by the aggregate number of shares of Orius Common Stock held by
such Person on the date hereof as reflected on the Orius Stockholders Schedule
attached hereto; and provided further that the aggregate liability of the Orius
Indemnifying Stockholders under clause (a) above (other than with respect to the
representations and warranties contained in Section 5B, Section 5Q, and the
first and second sentences of Section 5D) shall in no event exceed $80,000,000
(the "Orius Cap"), it being understood, however, that nothing in this Agreement
(including this Section 7B) shall limit or restrict the right of any of Orius,
the Investors and the LISN Parties to maintain or recover any amounts in
connection with any action or claim based upon fraudulent misrepresentation or
deceit.
(ii) Indemnification by the LISN Shareholders. Subject to the
limitations set forth in this Section, the LISN Shareholders shall jointly and
severally indemnify Orius, the Investors and each of the Orius Stockholders and
their respective Affiliates, partners, officers, directors, employees, agents,
representatives, successors and permitted assigns (collectively, the "Orius
Parties" and each individually an "Orius Party"), and save and hold each of them
harmless against as and when incurred for any Losses which any of them may
suffer, sustain or become subject to, as a result of, in connection with,
relating or incidental to or by virtue of: (a) any breach of any representation
or warranty of LISN under this Agreement or any of the Schedules attached
hereto, or in any of the written statements, certificates or other items
prepared and delivered to Orius or the Orius Stockholders by or on behalf of
LISN or the LISN Shareholders upon execution of this Agreement or any of the
agreements contemplated hereby or after the date hereof and at or prior to
Closing to induce the consummation of any of the transactions contemplated
hereby or thereby; (b) any nonfulfillment or breach of any covenant, agreement
or other provision by LISN under this Agreement or any of the Schedules and
Exhibits attached hereto required to be performed or complied with by LISN at or
prior to the Closing (except to the extent waived in writing in accordance with
the terms hereof or thereof, as applicable); (c) any inaccuracy or breach of any
representation or warranty included in the Note Exchange Agreement of which LISN
had Knowledge at or prior to the Closing; or (d) any of the matters set forth on
the LISN Indemnification Schedule attached hereto; provided that the LISN
Shareholders shall not have any liability under clause (a) above (other than
with respect to the representations and warranties contained in Section 6B,
Section 6Q, and the first and second sentences of Section 6D) unless the
aggregate of all Losses relating thereto for which the LISN Shareholders would,
but for this proviso, be liable exceeds $785,000 (the "LISN Deductible""), in
which event the LISN Shareholders shall be liable under clause (a) above only to
the extent that the aggregate of all Losses arising thereunder exceeds the LISN
Deductible; provided further that the LISN Shareholders shall not be liable in
respect of any particular Loss under clause (a) above unless the amount thereof,
individually or collectively with all Losses arising from the same or related
events or circumstances, is equal to or greater than $25,000 (the "LISN
Basket"), in which event the LISN Shareholders will be liable for the full
amount of each such Loss (subject to the LISN Deductible and the LISN Cap);
provided further that the aggregate liability of any LISN Shareholder pursuant
to this Section 7B shall in no event exceed the product of (x) the number of
shares of LISN Common held by such LISN Shareholder as of the date hereof, as
set forth on the LISN Shareholders Schedule attached hereto, multiplied by (y)
the
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quotient of the Closing LISN Investor Value divided by the aggregate number of
shares of LISN Common outstanding as of the date hereof, as set forth on the
LISN Shareholders Schedule attached hereto; provided further that the aggregate
liability of the LISN Shareholders under clause (a) above (other than with
respect to the representations and warranties contained in Section 6B, Section
6Q, and the first and second sentences of Section 6D) shall in no event exceed
$41,800,000 (the "LISN Cap"), it being understood, however, that nothing in this
Agreement (including this Section 7B) shall limit or restrict the right of any
of Orius, the Investors and the Orius Parties to maintain or recover any amounts
in connection with any action or claim based upon fraudulent misrepresentation
or deceit.
(iii) Exclusive Remedy; Other Matters; Purchase Price
Adjustment.
(a) Exclusive Remedy. Effective upon consummation of
the LISN Merger and the other transactions contemplated by this
Agreement to be consummated contemporaneously therewith or prior
thereto, the sole and exclusive remedy for Losses suffered by Orius,
the Investors, any Orius Party or any LISN Party arising from or
relating to this Agreement or the transactions contemplated hereby,
other than for fraudulent misrepresentation or deceit, shall be
pursuant to this Section 7B.
(b) Payments. For purposes of this Agreement, each
Person entitled to indemnification pursuant to this Section 7 shall be
referred to herein as an "Indemnitee" and each Person obligated to
provide indemnification pursuant to this Section 7 shall be referred to
herein as an "Indemnitor". Subject to Section 7B(iii)(e) below, each
Indemnitor shall pay to each Indemnitee the amount so claimed in
immediately available funds promptly or an adjustment to securities as
contemplated by subsection (e) below after the Indemnitee provides the
Indemnitor with written notice of a claim hereunder unless the
Indemnitor in good faith disputes such claim. If the Indemnitor
disputes such claim in good faith, then promptly after the resolution
of such dispute pursuant to the provisions thereof, the amount finally
determined to be due shall be paid by the Indemnitor to the Indemnitee
in immediately available funds (subject to Section 7B(iii)(e) below).
(c) Insurance and Other Indemnity Recoveries. The
amount of any Loss shall be reduced for purposes of this Section 7B by
the insurance proceeds actually received by the Indemnitee with respect
to such Loss, and by the proceeds actually received by the Indemnitee
pursuant to any other indemnity rights in respect of such Loss, net of
the costs incurred by the Indemnitee in connection with collecting such
proceeds; provided that such proceeds shall be disregarded in any
calculation of Losses for purposes of determining whether Losses are
equal to or greater than the Orius Deductible, LISN Deductible, Orius
Basket or LISN Basket. Orius and LISN will use reasonable efforts to
collect proceeds from insurance policies in respect of, and from
parties obligated under contractual indemnity agreements to indemnify
Orius or LISN, respectively, against, Losses for which the Orius
Indemnifying Stockholders or the LISN Shareholders would otherwise be
liable hereunder; provided that availability of recovery from such
other sources will not be a defense to indemnity obligations under this
Agreement.
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(d) Purchase Price Adjustment. Amounts paid to or on
behalf of the Orius Stockholders, the LISN Shareholders or the
Investors as indemnification shall be treated as adjustments to the
consideration paid in the LISN Merger and the other transactions
contemplated hereby, as applicable.
(e) Consideration Payable to LISN Shareholders and
the Investors. Notwithstanding any other provision hereof,
indemnification payments to LISN Shareholders and Investors pursuant to
this Agreement shall be made solely in Orius Common and Series C
Participating Preferred Stock and shall in no event be payable in cash,
notes or other property. If any LISN Shareholder or Investor is
entitled to an indemnity payment hereunder, each Indemnitor in respect
thereof shall either (x) deliver to such LISN Shareholder such shares
of Orius stock as the LISN Shareholder may request, or (y) pay to Orius
the amount owing to the LISN Shareholder. If an Indemnitor elects to
make payment in accordance with clause (y) foregoing, Orius will, upon
receipt thereof, promptly issue to such LISN Shareholder shares of
Orius Common and Series C Participating Preferred Stock (as directed by
such LISN Shareholder) with Fair Market Value equal to such amount
received by Orius from the Indemnitor.
(f) Indemnity Payments to or on Behalf of Orius.
Notwithstanding the foregoing, if payments are made by or on behalf of
the Orius Indemnifying Stockholders to or on behalf of Orius in respect
of any of the matters described in clauses (a) through (d) of Section
7B(i) (an "Orius Breach") in each case in amounts and in a manner such
that the Losses suffered by the LISN Shareholders and the Investors are
fully compensated as a result thereof, then neither the LISN
Shareholders nor the Investors shall have any right to further
indemnity against the Orius Indemnifying Stockholders in respect of
such Orius Breach. Also, notwithstanding the foregoing, if payments are
made by or on behalf of the LISN Shareholders to or on behalf of Orius
or LISN in respect of any of the matters described in clauses (a)
through (d) of Section 7B(ii) (a "LISN Breach") in each case in amounts
and in a manner such that the Losses suffered by the Orius Stockholders
and the Investors are fully compensated as a result thereof, then
neither the Orius Stockholders nor the Investors shall have any right
to further indemnity against the LISN Shareholders in respect of such
LISN Breach.
7C. Right to Offset Indemnity Obligations Against Outstanding
Securities.
(i) Offset Rights Generally. If any Indemnitor fails to comply
with its obligations pursuant to Section 7B (a "Breaching Indemnitor" and,
collectively with all Indemnitors who have failed to comply with such
obligations in respect of the same Loss, the "Breaching Indemnitors") to make
cash payments to an Indemnitee in an aggregate amount sufficient to reimburse
the Indemnitee for all Losses or adjustments to securities as required pursuant
to Section 7B (the portion of such Losses in respect of which the Indemnitee has
not received cash payment from the Breaching Indemnitor, the "Unreimbursed
Loss"), the Indemnitee may pursue any and all rights and remedies against each
of the Breaching Indemnitors available in law or in equity, subject only to the
limitations set forth in Section 7B above. In addition, and not in limitation of
or in substitution for the foregoing, upon the request of the Indemnitee, Orius
will cancel shares of the Orius Common
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retained by such Breaching Indemnitors upon consummation of the transactions
described in Section 1B(iv), or shares of Series C Participating Preferred
and/or Orius Junior Notes issued to or held by each or any of such Breaching
Indemnitors pursuant to Section 1B(v) or pursuant to any of Orius Put Agreements
or Orius Call Agreements, so long as the aggregate Fair Market Value of such
canceled securities does not exceed the amount of such indemnity obligations,
and reissue to the Indemnitee shares of each class of stock so canceled in the
amount for each such class which was canceled, and/or Orius Junior Notes in the
aggregate principal amount of, plus accrued and unpaid interest on, Orius Junior
Notes so canceled. To effect any such election, the Indemnitee shall deliver to
Orius and each of the Representatives a written notice (a "Cancellation Notice")
(a) identifying the Breaching Indemnitors and stating that such Breaching
Indemnitors have failed to make payments to such Indemnitee in respect of a Loss
in the full amount required pursuant to Section 7B, (b) the amount of such
Unreimbursed Loss, (c) if the Indemnitee desires to cancel any shares of Orius
Common or shares of Series C Participating Preferred in satisfaction of such
Unpaid Loss, such Indemnitee's estimate of the Fair Market Value of one share of
Orius Common and of the Fair Market Value of one share of Series C Participating
Preferred, and (d) the number of shares of Orius Common and shares of Series C
Participating Preferred, and the aggregate principal amount of Orius Junior
Notes which the Indemnitee has elected to cause Orius to cancel in satisfaction
of such Orius Unpaid Loss (the "Canceled Securities"). The Indemnitee may
designate for cancellation from each Breaching Indemnitor (and/or its
transferee) such numbers of shares of Orius Common and/or shares of Series C
Participating Preferred, and/or Orius Junior Notes in such principal amount, as
it may determine in its sole discretion, so long as the aggregate Fair Market
Value of such Canceled Securities does not exceed the aggregate Unreimbursed
Loss at the time of delivery of the applicable Cancellation Notice to the
Representatives. Upon request by any Indemnitee, Orius will provide to such
Indemnitee a list of all certificates representing Orius Common, shares of
Series C Participating Preferred and Orius Junior Notes issued to the Breaching
Indemnitors at the Closing or otherwise held by the Breaching Indemnitors, which
list shall state the name of the Person to whom such securities were issued at
the Closing, the name of the holder of such securities as reflected on Orius's
books and records as of the date of such notice, the amount of each class and
type of such securities then held by each such holder, and the number(s) (or
other identifying characteristics) of the certificates representing such
securities. Upon delivery of a Cancellation Notice by an Indemnitee to Orius and
the Representatives, the securities identified in such notice as Canceled
Securities shall be deemed for all purposes to be canceled and, accordingly,
Orius's books and records shall thereafter reflect that such securities are no
longer outstanding for any purpose, unless within 15 days following the delivery
thereof either the Persons identified in such Cancellation Notice or the
Representative thereof delivers a written notice to each of Orius, the
Representatives and the Indemnitee objecting thereto, in which event such
securities shall not be canceled but shall be held by such Persons, and such
Persons shall (and Orius shall use reasonable efforts to) ensure that no
interest therein will be transferred, pending resolution of the dispute. Each
party to such a dispute shall seek to resolve such dispute expeditiously and in
good faith. If and at such time as any securities are canceled pursuant to this
Section, the holder(s) thereof shall promptly surrender to Orius the
certificates representing such Canceled Securities, duly endorsed for transfer
as requested by Orius, so that new certificates representing any securities
represented thereby which are not so canceled may be issued to the holder
thereof and certificates representing the Canceled Securities may be destroyed
by Orius or reissued to the Indemnitee.
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(ii) Fair Market Value. For purposes of the foregoing, "Fair
Market Value" as to any security means the average of the closing prices of such
security's sales on all domestic securities exchanges or markets on which such
security may at the time be listed or quoted or, if there have been no sales on
any such exchange on any day, the average of the highest bid and lowest asked
prices on all such exchanges at the end of such day, or, if on any day such
security is not so listed or quoted, the average of the highest bid and lowest
asked prices on such day in the domestic over-the-counter market as reported by
the National Quotation Bureau, Incorporated, or any similar successor
organization, in each such case averaged over a period of 21 days consisting of
the day as of which "Fair Market Value" is being determined and the 20
consecutive business days prior to such day; provided that if such security is
listed on any domestic securities exchange the term "business days" as used in
this sentence means business days on which such exchange is open for trading. If
at any time such security is not listed or quoted on any domestic securities
exchange or the domestic over-the-counter market, the "Fair Market Value" shall
be the fair value thereof determined jointly by Orius and the Representatives;
provided that if Orius and the Representatives are unable to agree within 10
days of delivery of a Cancellation Notice, then by a nationally recognized
investment banking firm selected by Orius and the Representatives. The fees and
expenses of such investment banking firm shall be allocated by such firm on an
equitable basis as between the parties to such dispute and paid by such parties
accordingly.
7D. Defense of Third Party Claims. Any Indemnitee in
connection with a third party claim shall notify the Indemnitor of the claim in
writing promptly after receiving written notice of any action, lawsuit,
proceeding, investigation or other claim against it, describing the claim, the
amount thereof (if known and quantifiable) and the basis thereof; provided that
the failure to so notify an Indemnitor shall not relieve the Indemnitor of its
obligations hereunder except to the extent that (and only to the extent that)
such failure shall have caused the damages for which the Indemnitor is obligated
to be greater than such damages would have been had the Indemnitee given the
Indemnitor prompt notice hereunder. Any Indemnitor shall be entitled to
participate in the defense of such action, lawsuit, proceeding, investigation or
other claim giving rise to an Indemnitee's claim for indemnification at such
Indemnitor's expense, and at its option (subject to the limitations set forth
below) shall be entitled to assume the defense thereof by appointing a reputable
counsel reasonably acceptable to the Indemnitee to be the lead counsel in
connection with such defense; provided that,
(i) the Indemnitee shall be entitled to participate in the
defense of such claim and to employ counsel of its choice for such purpose; and
(ii) the Indemnitor shall not be entitled to assume control of
such defense and shall pay the fees and expenses of counsel retained by the
Indemnitee if (A) the claim for indemnification relates to or arises in
connection with any criminal proceeding, action, indictment, allegation or
investigation; (B) the Indemnitee reasonably believes an adverse determination
with respect to the action, lawsuit, investigation, proceeding or other claim
giving rise to such claim for indemnification would be materially detrimental to
or injure the Indemnitee's reputation or future business prospects; (C) the
claim seeks an injunction or equitable relief against the Indemnitee; (D) the
Indemnitee has been advised in writing by counsel that a reasonable likelihood
exists of a conflict of interest between the Indemnitor and the Indemnitee; or
(E) upon petition by the Indemnitee, the
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appropriate court rules that the Indemnitor failed or is failing to vigorously
prosecute or defend such claim; and
(iii) if the Indemnitor shall control the defense of any such
claim, the Indemnitor shall obtain the prior written consent of the Indemnitee
before entering into any settlement of a claim or ceasing to defend such claim
if, pursuant to or as a result of such settlement or cessation, injunctive or
other equitable relief will be imposed against the Indemnitee or if such
settlement does not expressly and unconditionally release the Indemnitee from
all liabilities and obligations with respect to such claim, without prejudice.
If the Indemnitee notifies the Indemnitor of a claim in accordance with this
Section 7D, the Indemnitor shall bear all fees and expenses of counsel that are
incurred by or on behalf of the Indemnitee prior to the date on which the
Indemnitor effectively assumes control of defense (the "Control Date"). If the
Indemnitee elects to participate in the defense of such a claim in accordance
with clause (i) foregoing, the Indemnitee shall bear all fees and expenses of
such separate counsel that are incurred after the date on which the Indemnitor
has both (x) verified to the Indemnitee in writing that such Indemnitor shall be
fully responsible (with no reservation of any rights) for all liabilities and
obligations relating to such claim for indemnification and that it shall provide
full indemnification (whether or not otherwise required hereunder) to the
Indemnitee with respect to such action, lawsuit, proceeding, investigation or
other claim giving rise to such claim for indemnification hereunder, and (y)
entered into an agreement with the Indemnitee in form and substance satisfactory
to the Indemnitee under which the Indemnitor unconditionally guarantees the
payment and performance of any liability or obligation which may arise with
respect to such action, lawsuit, proceeding, investigation or facts giving rise
to such claim for indemnification hereunder. The Indemnitee shall fund all fees
and expenses of such separate counsel that are incurred in the defense of such a
claim after the Control Date and before the date on which the Indemnitor has
satisfied the conditions described in clauses (x) and (y) of the immediately
preceding sentence, but the Indemnitor will promptly reimburse the Indemnitee in
full for all of such amounts if the Indemnitor is found to be liable in respect
of any such claim.
7E. Legend on Orius Securities Subject to Indemnification.
(i) In addition to the legends described in Section 10C below,
certificates representing the Orius Common retained by or issued to each Orius
Stockholder as of the Closing as contemplated hereby, and the certificates
representing the shares of Series C Participating Preferred and Orius Junior
Notes issued to each Orius Stockholder pursuant to any of the Joinder
Agreements, Orius Call Agreements and Orius Put Agreements, shall bear a legends
in substantially the form set forth below in this Section 7E. Also, in addition
to the legends described in Section 10C below, certificates representing the
Orius Common, shares of Series C Participating Preferred and Orius Junior Notes
issued to each LISN Shareholder pursuant to the LISN Merger Transactions, shall
bear the following legend:
"The securities represented by this [CERTIFICATE / NOTE]
constitute [LISN MERGER CONSIDERATION / ORIUS EXCHANGE
CONSIDERATION] as defined in the Agreement and Plan of
Reorganization dated as of November 8, 1999, by and
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among the issuer and certain investors (the "Agreement") and
are subject to return to the Company under certain
circumstances pursuant to the terms set forth in the
Agreement. Such provisions will continue to apply to any
holder or transferee of the securities represented by this
[CERTIFICATE][NOTE]. A copy of such Agreement shall be
furnished by the issuer to the holder hereof upon written
request and without charge."
(ii) The certificates representing such securities shall bear
such legend, notwithstanding any transfer thereof, until such time as the
indemnity obligations pursuant to Section 7B hereof with respect to such
securities shall have terminated; provided that Orius shall deliver to such
holder new securities representing such securities and not bearing such legend
and the legends described in Section 10C below, as applicable, (a) upon the
request of the holder of any such securities in connection with the Public Sale
(as defined in the Investor Rights Agreement) of such securities, and the
Company shall provide reasonable and prompt assistance to such holder in
connection with the removal of such legends in order to permit such holder to
deliver certificates without such legends in any such Public Sale, provided that
such holder will permit the Company to replace such legends in the event the
contemplated Public Sale of such securities is not consummated, or (b) at such
time as the holder of the securities represented thereby provides insurance for
the benefit of all Persons entitled indemnity by such holder in amounts and of a
type reasonably satisfactory to the Representative(s) of such Persons who are
subject to such indemnity.
7F. Press Release and Announcements. Unless required by law
(in which case each Party agrees to consult with the other Parties prior to any
such disclosure as to the form and content of such disclosure), no press
releases or other releases of information related to this Agreement or the
transactions contemplated hereby will be issued or released prior to the Closing
without the consent of Orius, the LISN Shareholder Representative and the Orius
Stockholders Representative.
7G. Confidentiality. On behalf of the LISN Shareholders and
the Orius Stockholders, the LISN Shareholder Representative and the Orius
Stockholders Representative acknowledge and agree that all "confidential
information" (as defined in the Confidentiality Agreement) provided to them by
the other is subject to the terms of a Confidentiality Agreement between them
(the "Confidentiality Agreement"), the terms of which are incorporated herein by
reference. If the transactions contemplated hereby are not consummated, the LISN
Shareholder Representative shall cause the return to Orius and keep confidential
all information and materials regarding Orius and the Orius Stockholders
reasonably designated by Orius as confidential (except to the extent (i)
disclosure of such information is required by law, (ii) the information was
previously known to the LISN Shareholders or (iii) the information becomes
publicly known except through the actions or inactions of the LISN
Shareholders), and the Orius Stockholders Representative shall cause the same to
occur with respect to LISN. Effective upon the consummation of the transactions
contemplated hereby, the Confidentiality Agreement shall terminate.
7H. Further Assurances. In case at any time after the Closing
any further action is necessary or desirable to carry out the purposes of this
Agreement or the transactions contemplated hereby, each of the Parties will take
such further action (including the execution and delivery of such
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further instruments and documents) as any other Party may reasonably request,
all at the sole cost and expense of the requesting Party (unless the requesting
Party is entitled to indemnification therefor under Section 7 above).
Section 8. Definitions. For the purposes of this Agreement,
the following terms have the meanings set forth below:
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise.
"Affiliated Group" means any affiliated group as defined in
Code ss.1504 that has filed a consolidated return for federal income tax
purposes (or any similar group under state, local or foreign law) for a period
during which Orius or any of its Subsidiaries was a member..
"Aggregate LISN Preferred Liquidation Value" means the sum of
the LISN Preferred Liquidation Value of each outstanding share of LISN at the
Effective Time (determined without giving effect to the LISN Merger).
"Agreement" has the meaning set forth in the Preamble.
"Articles of Incorporation" has the meaning set forth in
Section 1A.
"Bank" has the meaning set forth in Section 2R.
"Breach Notice" has the meaning set forth in Section 9A.
"Breaching Party" has the meaning set forth in Section 0X.
"Xxxxxx Xxxxxx" has the meaning set forth in Section 2S.
"Bylaws" has the meaning set forth in Section 2C.
"Cash Equivalents" means investments having a stated maturity
no greater than three month in (i) direct obligations of the United States or
Canadian government or any agency thereof or obligations guaranteed by the
United States or Canadian government, (ii) certificates of deposit of commercial
banks having combined capital and surplus of at least $1 billion, (iii)
commercial paper with a rating from a nationally recognized credit rating agency
in such agency's highest rating category, or (iv) money market funds of
nationally recognized institutions investing solely in obligations described in
clauses (i), (ii) and (iii) above.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
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"Closing" has the meaning set forth in Section 1C.
"Closing Date" has the meaning set forth in Section 1C.
"Closing LISN Investor Value" has the meaning set forth in
Section 1D.
"Closing Orius Investor Value" has the meaning set forth in
Section 1D.
"COBRA" has the meaning set forth in Section 5T.
"Code" means the Internal Revenue Code of 1986, as amended,
and any reference to any particular Code section shall be interpreted to include
any revision of or successor to that section regardless of how numbered or
classified.
"Confidentiality Agreement" has the meaning set forth in
Section 7G.
"Effective Time" has the meaning set forth in Section 1B.
"Environmental and Safety Requirements" shall mean all
federal, state, local and foreign statutes, regulations, ordinances and other
provisions having the force or effect of law, all judicial and administrative
orders and determinations, all contractual obligations and all common law, in
each case concerning public health and safety, worker health and safety and
pollution or protection of the environment (including, without limitation, all
those relating to the presence, use, production, generation, handling,
transport, treatment, storage, disposal, distribution, labeling, testing,
processing, discharge, Release, threatened Release, control or cleanup of any
hazardous or otherwise regulated materials, substances or wastes, chemical
substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals,
petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise,
radiation or radon), each as amended and as now or hereafter in effect.
"Environmental Lien" shall mean any Lien, whether recorded or
unrecorded, in favor of any governmental entity, relating to any liability of
Orius arising under any Environmental and Safety Requirements.
"ERISA" has the meaning set forth in Section 5T.
"Escrow Amount Per Share" means $5,000,000 divided by
22,789,683.77.
"Estimated LISN Closing Balance Sheet" has the meaning set
forth in Section 1D.
"Estimated LISN Net Indebtedness" has the meaning set forth in
Section 1D.
"Estimated Orius Closing Balance Sheet" has the meaning set
forth in Section 1D.
"Estimated Orius Net Indebtedness" has the meaning set forth
in Section 1D.
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"Exclusivity Agreement means the letter agreement dated August
31, 1999 by and among Xxxxxx Xxxxx & Partners Management II, L.L.C., LISN,
Orius, and HIG, as amended by letter agreements dated as of September 30, 1999
and October 15, 1999, as further amended from time to time.
"Existing Bank Liens" means Liens securing the obligations in
respect of Indebtedness for borrowed money and the security interests on
equipment held by certain TCI entities with respect to advances made to Orius by
such TCI entities.
"Existing LISN Employee Options" has the meaning set forth in
Section 1A.
"Existing Orius Option" means an option to purchase Orius
Common Stock which is evidenced by an Existing Stock Option Agreement in the
form previously delivered to LISN and granted pursuant to the Existing Stock
Option Plan, is outstanding on the date hereof and held by a person listed on
the Orius Optionholders Schedule hereto, which option is exercisable for up to
the number of shares set forth opposite such person's name at the exercise per
share set forth opposite such person's name on such Exhibit; and "Existing Orius
Options" means all of the Existing Orius Options, collectively.
"Existing Stock Option Agreement" means the Incentive Stock
Option Agreement pursuant to which Orius granted each of the Existing Orius
Options, which agreement is in the form previously delivered by Orius to LISN.
"Existing Stock Option Plan" means the Orius Corp. Stock
Option Plan in the form previously delivered by Orius to LISN.
"Final LISN Consideration" has the meaning set forth in
Section 1E.
"Final LISN Net Indebtedness" has the meaning set forth in
Section 1E.
"Final Orius Consideration" has the meaning set forth in
Section 1E.
"Final Orius Net Indebtedness" has the meaning set forth in
Section 1E.
"Financing Fees and Expenses" means any fees, expenses or
other costs incurred by LISN (including to reimburse Xxxxxx Xxxxx for fees,
expenses and costs Xxxxxx Xxxxx may incur) in connection with the Senior Debt
Financing or the Senior Subordinated Debt Financing and any fee payable to
Xxxxxxx Xxxxx in connection with the transactions contemplated hereby; provided
that in no event will Financing Fees and Expenses include any fees payable to
Xxxxxx Xxxxx.
"Firm" has the meaning set forth in Section 1E.
"401(k) Plan" has the meaning set forth in Section 5T.
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"Full Strip Cash Consideration Per Old Common Share" means
cash in an amount equal to 50% of the Orius Common Value Per Share.
"Full Strip Junior Note Consideration Per Old Common Share"
means (i) the product of (A) Orius Common Value Per Share, multiplied by (B)
50%, multiplied by (C) the Note Proportion.
"Full Strip Preferred Consideration Per Old Common Share"
means (i) the product of (A) Orius Common Value Per Share, multiplied by (B)
50%, multiplied by (C) the Preferred Stock Proportion, divided by (ii) $1,000
(i.e., the Series C Liquidation Value per share of Series C Participating
Preferred, as defined in Exhibit A hereto).
"GAAP" means United States generally accepted accounting
principles.
"Xxxx-Xxxxx-Xxxxxx Act" has the meaning set forth in Section
2L.
"HIG" has the meaning set forth in the Preamble.
"HIG Cable" means H.I.G. Cable, Inc.
"HIG Pledge and Voting Agreement" has the meaning set forth in
Section 2G.
"HIG Put Agreement" has the meaning set forth in the Preamble.
"HIG Redemption Agreement" means the Redemption Agreement,
dated February 26, 1999, by and among Orius Corp., HIG Cable, Inc. and HIG Cable
West, Inc.
"HIG West" means H.I.G. Cable West, Inc.
"Identified Breach" has the meaning set forth in Section 9A.
"Indebtedness" means at a particular time, without
duplication, (i) any indebtedness for borrowed money or indebtedness issued in
substitution or exchange for indebtedness for borrowed money, (ii) any
indebtedness evidenced by any note, bond, debenture or other debt security,
(iii) all fees, expenses and other costs incurred in connection with the
marketing, negotiation, documentation or consummation of the transactions
contemplated by this Agreement, including any brokerage or financial advisory
fees (other than the Financing Fees and Expenses) and, in respect of Orius,
including the amounts payable to the Persons and in the amounts set forth on the
"Orius Bonus Schedule", (iv) any commitment by which a Person assures a creditor
against loss (including contingent reimbursement obligations with respect to
letters of credit), (v) any indebtedness guaranteed in any manner by a Person
(including guarantees in the form of an agreement to repurchase or reimburse),
(vi) any obligations under capitalized leases with respect to which a Person is
liable, contingently or otherwise, as obligor, guarantor or otherwise, or with
respect to which obligations a Person assures a creditor against loss, (vii) any
indebtedness secured by a Lien on a Person's assets, (viii) any unsatisfied
obligation for "withdrawal liability" to a "multi-
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employer plan" as such terms are defined under ERISA, and (ix) any obligation to
repay deposits or other amounts advanced by and owing to third parties (e.g.,
obligations to repay advances and deposits received from customers; provided
that it is understood and agreed that the $12.7 million of advances to Orius by
various TCI entities and which is outstanding as of the date hereof (as more
fully described on the Orius Accounts Receivable Schedule) is not Indebtedness
for purposes of this Agreement); provided that with respect to LISN,
"Indebtedness" shall include the $7,885,450 payable to Xxxxxx X. Xxxxx on
January 2, 2000, as the purchase price for the Vanke Shares pursuant to Section
2.2(d) of the LISN Recapitalization Agreement, to the extent unpaid, and shall
exclude the LISN Junior Notes and all interest accrued thereon and the New LISN
Notes; and provided that with respect to Orius, "Indebtedness" shall include (1)
fees, expenses and other costs incurred by Orius and its predecessors in
connection with its work on a proposed initial public offering of Orius common
stock, (2) fees, expenses and other costs owing or to become due to Deutsche
Bank, Securities, Inc. and any other financial advisor in connection with the
transactions contemplated by this Agreement, including any such fees, expenses
and other costs incurred by HIG or any Orius Stockholder for which Orius is or
becomes liable, (3) all Liabilities in respect of the litigation matter styled
Xxxxxx Xxxxxx v. North American Tel-Com Group, Inc., including without
limitation for legal fees and expenses and settlement obligations, (4) the
aggregate amount of dividends that have accrued with respect to shares of Orius
Series A Preferred or Orius Series B Preferred, to the extent unpaid as of the
Effective Time, (5) all interest which has accrued and remains unpaid with
respect to the Orius Convertible Note as of the Effective Time, but shall
exclude the original principal amount of the Orius Convertible Note, (6)
$593,269 (or such other amount if, and only if, another amount is definitively
agreed to prior to the Closing Date) as a working capital adjustment owing to
the former stockholders of Copenhagen Utilities & Construction, Inc.
("Copenhagen") under that certain Stock Exchange Agreement, dated February 20,
1999, by and among NATG Holdings, LLC, Orius Corp. and the shareholders of
Copenhagen, and (7) all Liabilities in respect of the litigation matter
involving Xxxxxxx Xxxxxx, including without limitation for legal fees and
expenses and settlement obligations.
"Indemnitee" has the meaning set forth in Section 7B(iii)(b).
"Indemnitor" has the meaning set forth in Section 7B(iii)(b).
"Intellectual Property Rights" means all (i) patents, patent
applications, patent disclosures and inventions, (ii) internet domain names,
trademarks, service marks, trade dress, trade names, logos and corporate names
and registrations and applications for registration thereof together with all of
the goodwill associated therewith, (iii) copyrights (registered or unregistered)
and copyrightable works and registrations and applications for registration
thereof, (iv) mask works and registrations and applications for registration
thereof, (v) computer software, data, data bases and documentation thereof, (vi)
trade secrets and other confidential information (including ideas, formulas,
compositions, inventions (whether patentable or unpatentable and whether or not
reduced to practice), know-how, manufacturing and production processes and
techniques, research and development information, drawings, specifications,
designs, plans, proposals, technical data, copyrightable works, financial and
marketing plans and customer and supplier lists and information), (vii) other
intellectual property rights and (viii) copies and tangible embodiments thereof
(in whatever form or medium).
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"Investment" as applied to any Person means (i) any direct or
indirect purchase or other acquisition by such Person of any notes, obligations,
instruments, stock, securities or ownership interests (including partnership
interests and joint venture interests) of any other Person and (ii) any capital
contribution by such Person to any other Person.
"Investment Agreement" has the meaning set forth in Section
1B.
"Investment Amount" means an amount not less than (i)
$97,000,000 minus (ii) the aggregate proceeds to Orius and its Subsidiaries of
the Senior Debt Financing and the Senior Subordinated Debt Financing to the
extent in excess of $375,000,000.
"Investment Transaction" has the meaning set forth in Section
1B.
"Investor Note Amount" means the product of (i) the Note
Proportion multiplied by (ii) the aggregate principal amount of the New LISN
Notes issued at or prior to the Closing pursuant to the Investment Agreement.
"Investor Preferred Amount" means (i) ninety percent (90%) of
the aggregate principal amount of the New LISN Notes issued at or prior to the
Closing pursuant to the Investment Agreement, minus (ii) the Investor Note
Amount.
"Investor Preferred Number" means the quotient determined by
dividing (i) the Investor Preferred Amount, by (ii)$1,000 (i.e., the Series C
Liquidation Value per share of Series C Participating Preferred, as defined in
Exhibit A hereto).
"Investor Representative" means Xxxxxx Xxxxx.
"Investor Rights Agreement" has the meaning set forth in
Section 2D.
"Investors" means, collectively, Xxxxxx Xxxxx and the other
Persons listed on Exhibit D, as such list may be revised by Xxxxxx Xxxxx from
time to time by written notice to Orius at any time prior to the Closing, it
being understood that (i) prior to the Closing LISN may offer New LISN Notes to
the parties to the LISN Holdings, Inc. Shareholders Agreement dated as of May
28, 1999, accordance with the procedures of Section 4 thereof of and if and to
the extent that any LISN Shareholder elects to purchase New LISN Notes in
accordance with such offer Exhibit D shall be revised to reflect such Person as
a purchaser of such New LISN Notes and the principal amounts of notes to be
purchased by Xxxxxx Xxxxx and the other Persons identified on such Schedule
shall be reduced accordingly, and (ii) Xxxxxx Xxxxx will in any event be an
Investor and will purchase any portion of the Investment Amount of the New LISN
Notes which are not purchased at the Closing by other Investors; and "Investor"
means, individually, any Person listed on Exhibit D as of the Closing, as such
Exhibit may be amended from time as contemplated by the foregoing definition.
"Joinder Agreements" means, collectively, the Full Strip
Joinder Agreements, the Securities Only Joinder Agreements, the Cash Joinder
Agreements and the Warrant Joinder
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Agreements, and "Joinder Agreement" means any Full Strip Joinder Agreement,
Securities Only Joinder Agreement, Cash Joinder Agreement or Warrant Joinder
Agreement.
"Knowledge", as used in respect of any of Orius and its
Subsidiaries, or in respect of any of LISN and its Subsidiaries, for example in
the phrases "to the Knowledge of Orius", "to Orius's Knowledge," "to the
Knowledge of LISN", "to LISN's Knowledge" or phrases of similar import, means
the actual knowledge or awareness of the senior executives, senior officers and
directors of Orius and its Subsidiaries, or of LISN and its Subsidiaries, as
applicable.
"Liability" means any liability, debt, obligation, deficiency,
Tax, penalty, fine, claim, cause of action or other loss, cost or expense of any
kind or nature whatsoever, whether asserted or unasserted, absolute or
contingent, known or unknown, accrued or unaccrued, liquidated or unliquidated,
and whether due or become due and regardless of when asserted.
"Lien" or "Liens" in respect of any Person means any mortgage,
pledge, security interest, encumbrance, lien or charge of any kind (including
any conditional sale or other title retention agreement or lease in the nature
thereof), any sale of receivables with recourse against such Person, any filing
or agreement to file a financing statement as debtor under the Uniform
Commercial Code or any similar statute (other than to reflect ownership by a
third party of property leased to such Person under a lease which is not in the
nature of a conditional sale or title retention agreement), or any subordination
arrangement in favor of another Person.
"LISN" has the meaning set forth in the preamble.
"LISN Basket" has the meaning set forth in Section 7B.
"LISN Cap" has the meaning set forth in Section 7B.
"LISN Closing Balance Sheet" has the meaning set forth in
Section 1E.
"LISN Closing Indebtedness" has the meaning set forth in
Section 1E.
"LISN Common" has the meaning set forth in Section 1A.
"LISN Common Stockholders Common Share Number" means the
quotient determined by dividing (i) nine percent (9%) of the Closing LISN
Investor Value by (ii) the Orius Common Value Per Share.
"LISN Common Stockholders Preferred Share Number" means the
excess of the LISN Shareholders Preferred Share Number over the LISN Preferred
Stockholder Preferred Share Number.
"LISN Deductible" has the meaning set forth in Section 7B
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"LISN Junior Note Amount" means the aggregate principal amount
of, plus accrued and unpaid interest on, the LISN Junior Notes outstanding at
the Effective Time, calculated without giving effect to the Note Exchange or the
LISN Merger.
"LISN Junior Notes" has the meaning given such term in Section
1A.
"LISN Leased Real Property" has the meaning given such term in
Section 6Y.
"LISN Leases" has the meaning given such term in Section 6Y.
"LISN Merger" has the meaning set forth in Section 1B.
"LISN Merger Transactions" has the meaning set forth in
Section 1B.
"LISN Owned Real Property" has the meaning given such term in
Section 6Y.
"LISN Party" or "LISN Parties" have the meaning set forth in
Section 8B.
"LISN Preferred" has the meaning set forth in Section 1A.
"LISN Preferred Liquidation Value" with respect to any share
of LISN Preferred means the Series A Preferred Liquidation Value (as defined in
LISN's articles of incorporation as in effect on the date hereof) of such share
of LISN Preferred at the Effective Time (determined without giving effect to the
LISN Merger), plus the aggregate amount of dividends which have accrued on such
share and remain unpaid as of such time.
"LISN Preferred Stockholder Preferred Share Number" means the
product of (i) the LISN Preferred Stockholders Preferred Share Multiplier
multiplied by (ii) the Aggregate LISN Preferred Liquidation Value, divided by
(iii)$1,000 (i.e., the Series C Liquidation Value per share of Series C
Participating Preferred, as defined in Exhibit A hereto).
"LISN Preferred Stockholders Preferred Share Multiplier" means
a fraction:
(i) the numerator of which is the excess of (A) ninety percent
(90%) of Closing LISN Investor Value over (B) the LISN Junior Note
Amount, and
(ii) the denominator of which is the excess of (A) ninety-one
percent (91%) of Closing LISN Investor Value, over (B) the LISN Junior
Note Amount.
"LISN Recapitalization Agreement" means the Recapitalization
Agreement dated as of May 27, 1999 between and among LISN, LISN, Inc., Arion
Sub, Inc., Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx, Xxxxxx Xxxxx &
Partners II, L.P., Xxxxxx Xxxxx & Partners Dutch, L.P. and the other parties
named therein, as amended.
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"LISN Shareholder" or "LISN Shareholders" has the meaning
given such term in Section 1B.
"LISN Shareholder Representative" initially shall be Xxxxxx
Xxxxx & Partners II, L.P.
"LISN Shareholders Preferred Share Number" means the quotient
determined by dividing (i) the excess of (A) ninety percent (90%) of Closing
LISN Investor Value, over (B) the LISN Junior Note Amount, by (ii)$1,000 (i.e.,
the Series C Liquidation Value per share of Series C Participating Preferred, as
defined in Exhibit A hereto).
"LISN Sub" has the meaning given such term in Section 2R.
"LISN Transaction" has the meaning set forth in Section 4J.
"LISN Transmittal Letter" has the meaning set forth in Section
1B.
"Loss" or "Losses" has the meaning set forth in Section 7B.
"Material Adverse Effect" means a material and adverse effect
upon the business, operations, assets, liabilities, financial condition,
operating results, cash flow, net worth or employee, customer or supplier
relations, or prospects of Orius or LISN, as the case may be, taken as a whole.
"Merger Agreement" has the meaning set forth in Section 1B.
"Merger Sub" has the meaning set forth in the Preamble.
"NATG" has the meaning set forth in Section 2R.
"New Incentive Stock and Option Plan" means the plan set forth
as Exhibit P hereto.
"New LISN Notes" has the meaning set forth in Section 1A.
"New Stock Option Agreement" has the meaning set forth in
Section .
"Note Exchange" has the meaning set forth in Section 1B.
"Note Exchange Agreement" has the meaning set forth in Section
1B.
"Note Proportion" mean a fraction, (i) the numerator of which
is the LISN Junior Note Amount, and (ii) the denominator of which is the Closing
LISN Investor Value.
"Objection Notice" has the meaning set forth in Section 1E.
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"ordinary course" in respect of a Person means the ordinary
course of business of such Person, consistent with such Person's past custom and
practice, including with respect to quantity, quality and frequency.
"Orius" has the meaning set forth in the preamble.
"Orius Basket" has the meaning set forth in Section 7B.
"Orius Call Agreement" has the meaning given such term in
Section 1B(vi).
"Orius Cap" has the meaning set forth in Section 7B.
"Orius Class B Common" has the meaning set forth in the
Preamble.
"Orius Closing Balance Sheet" has the meaning set forth in
Section 1E.
"Orius Closing Fully-Diluted Common Share Amount" means the
sum, determined immediately prior to the Effective Time, of the following:
(i) the aggregate number of outstanding shares of Orius Common
Stock, plus
(ii) the aggregate number of shares of Orius Common Stock
issuable upon conversion of outstanding shares of Orius Series A
Preferred, plus
(iii) the aggregate number of shares of Orius Common Stock
issuable upon conversion of outstanding shares of Orius Series B
Preferred, plus
(iv) the aggregate number of shares of Orius Common Stock
issuable upon conversion of the Orius Convertible Note, plus
(v) the aggregate number of shares of Orius Common Stock
issuable upon exercise of Orius Warrants, plus
(vi) the aggregate number of shares of Orius Common Stock
issuable upon exercise of the Existing Orius Options, determined
disregarding any restrictions or limitations upon the exercise of such
Options, plus
(vii) all other shares of Orius Common Stock, if any, which
are issuable, directly or indirectly, upon exercise or conversion of,
or in exchange for, any other outstanding rights or securities or any
other rights or securities issuable, directly or indirectly, in respect
of any of the foregoing.
"Orius Closing Indebtedness" has the meaning set forth in
Section 1E.
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"Orius Common" means the Orius Common Stock and the Orius
Class B Common, collectively.
"Orius Common Stock" has the meaning set forth in the
Preamble.
"Orius Common Value Per Share" means the quotient determined
by dividing (i) the Closing Orius Investor Value by (ii) the Orius Closing
Fully-Diluted Common Share Amount.
"Orius Continuing Stockholder" or "Orius Continuing
Stockholders" shall mean the stockholders of Orius who are listed on Exhibit D,
other than the Orius Selling Stockholders.
"Orius Convertible Note" means the $1,000,000 Convertible
Subordinated Promissory Note issued by Orius to H.I.G. Cable, Inc. on February
26, 1999.
"Orius Deductible" has the meaning set forth in Section 7B.
"Orius Indemnifying Stockholders" has the meaning set forth in
Section 7B.
"Orius Junior Notes" means, collectively, the 12% junior
subordinated promissory notes issued by Orius in the form of Exhibit C attached
hereto, dated as of the Closing Date, and issued pursuant to this Agreement,
including pursuant to any Joinder Agreement, pursuant to the LISN Merger or
pursuant to the Investment Agreement, and all junior subordinated promissory
notes in the form of Exhibit C hereto which hereafter are issued upon transfer
of any of any Orius Junior Note or to evidence unpaid interest which has accrued
on any Orius Junior Note; and each such note may be referred to herein as a
"Orius Junior Note".
"Orius Latest Balance Sheet" has the meaning set forth in
Section 5E.
"Orius Leased Real Property" has the meaning given such term
in Section 5Y.
"Orius Leases" has the meaning given such term in Section 5Y.
"Orius Option Spread Value" means, for each Existing Orius
Option, the product of (i) the Share Number for such option multiplied by (ii)
the excess of Orius Common Value Per Share over the exercise price per share of
Orius Common Stock payable to Orius upon exercise of such option, as set forth
opposite the name of the holder of such Existing Orius Option on the Orius
Optionholders Schedule hereto.
"Orius Owned Real Property" has the meaning given such term in
Section 5Y.
"Orius Party" or "Orius Parties" have the meaning set forth in
Section 7B.
"Orius Put Agreement" has the meaning given such term in
Section 3B.
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"Orius Selling Stockholders" means H.I.G. Cable Inc., H.I.G.
Cable West, Inc., Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx, the Xxxxx X. Xxxx and
Xxxxx X. Xxxx Living Trust, Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxx X. Xxxxxxxxx
and Xxxxx X. Xxxxxxxxx.
"Orius Series A Preferred" has the meaning set forth in the
preamble.
"Orius Series B Preferred" has the meaning set forth in the
preamble.
"Orius Stockholder" or "Orius Stockholders" have the meaning
set forth in Section 1A.
"Orius Stockholders Representative" initially shall be Xxxxxxx
X. Xxxxxx.
"Orius Transaction" has the meaning set forth in Section 4J.
"Orius Warrant" means a warrant agreement, in the form
previously delivered to LISN, between Orius and a Person listed on the Orius
Warrantholders Schedule hereto, under which such Person is entitled to purchase
from Orius shares of Orius Common Stock at the exercise per share set forth
opposite such person's name on such Exhibit, which agreement is in full force
and effect and exercisable by such Person on the date hereof to acquire up to an
aggregate number of shares of Orius Common Stock which, when combined with the
aggregate number of shares of Orius Common Stock which are issuable upon
exercise of each other Orius Warrant held by such Person, shall not exceed the
amount set forth opposite such Person's name on the Orius Stockholders Schedule
hereto; and "Orius Warrants" means all of Orius Warrants, collectively.
"Other Loss" has the meaning set forth in Section 7B.
"Other Plans" has the meaning set forth in Section 5T.
"Other Reorganization Agreements" shall mean the Joinder
Agreements, the LISN Merger Agreement, the LISN Transmittal Letters, Orius Call
Agreements, Orius Put Agreements, the Note Exchange Agreement, the Investment
Agreement, the Escrow Agreement, the HIG Put Agreement, the HIG Call Agreement,
the Purchase Agreement, the Pledge and Voting Agreements and the Investor Rights
Agreement.
"Party" or "Parties" has the meaning set forth in the
preamble.
"Permitted Encumbrances" shall mean with respect to each
parcel of Orius Owned Real Property or LISN Owned Real Property (i) statutory
liens for current Taxes or other governmental charges not yet due and payable or
the amount or validity of which is being contested in good faith by appropriate
proceedings and for which appropriate reserves have been established in
accordance with GAAP; (ii) mechanics', carriers', workers', repairers' and
similar statutory liens arising or incurred in the ordinary course of business
for amounts which are not delinquent and which are not, individually or in the
aggregate, material to Orius's or LISN's business, as applicable; (iii) zoning,
entitlement, building and other land use regulations imposed by governmental
agencies
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having jurisdiction over the Orius Owned Real Property or LISN Owned Real
Property which are not violated by the current use and operation of the Orius
Owned Real Property or LISN Owned Real Property; (iv) covenants, conditions,
restrictions, easements and other similar matters of record affecting title to
the Orius Owned Real Property or LISN Owned Real Property which do not
materially impair the occupancy or use of the Orius Owned Real Property or LISN
Owned Real Property for the purposes for which it is currently used in
connection with Orius's or LISN's business, as applicable; and (v) the Existing
Bank Liens.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Plans" has the meaning set forth in Section 5T.
"Preferred Stock Proportion" means 0.90 minus the Note
Proportion.
"Pro Rata Share" has the meaning set forth in Section 7B.
"Purchase Agreement" has the meaning set forth in Section 1B.
"Purchase Transaction" has the meaning set forth in Section
1B.
"Qualifying Waiver" has the meaning set forth in Section 9A.
"Related Person" has the meaning set forth in Section 9A.
"Release" shall have the meaning set forth in CERCLA.
"Representatives" means at the time of determination thereof,
collectively, the LISN Shareholders Representative, the Investor Representative
and the Orius Stockholders Representative at such time.
"Restricted Securities" means (i) shares of Orius Common and
shares of Series C Participating Preferred issued pursuant to this Agreement or
any of the agreements contemplated hereby, (ii) the shares of Orius Common Stock
held by the Orius Stockholders as of the date hereof and retained by such
Persons through the Closing, (iii) the Orius Junior Notes issued hereunder, and
(iv) any securities issued or exchanged with respect to the securities referred
to in clauses (i), (ii) and (iii) above by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular Restricted
Securities, such securities shall cease to be Restricted Securities when they
have been (a) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, (b) been distributed
to the public through a broker, dealer or market maker pursuant to Rule 144 (or
any similar provision then in force) under the Securities Act or become eligible
for sale pursuant to Rule 144(k) (or any similar provision then in force) under
the Securities Act or (c) been otherwise transferred and new certificates for
them not bearing the Securities Act legend set
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forth in Section 10C have been delivered by Orius in accordance with Section
10C or Section 7E Whenever any particular securities cease to be Restricted
Securities, the holder thereof shall be entitled to receive from Orius, without
expense, new securities of like tenor not bearing a Securities Act legend of the
character set forth in Section10C.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal law then in force.
"Securities Only Junior Note Consideration Per Old Common
Share" means (i) the product of (A) Orius Common Value Per Share, multiplied by
(B) the Note Proportion.
"Securities Only Preferred Consideration Per Old Common Share"
means (i) the product of (A) Orius Common Value Per Share, multiplied by (B) the
Preferred Stock Proportion, divided by (ii) $1,000 (i.e., the Series C
Liquidation Value per share of Series C Participating Preferred, as defined in
Exhibit A hereto).
"Senior Debt Financing" has the meaning set forth in Section
2T.
"Senior Subordinated Debt Financing" has the meaning set forth
in Section 2L.
"Series C Participating Preferred" has the meaning set forth
in Section 1A.
"Service Certifications" has the meaning set forth in Section
5H.
"Share Number" for any Orius Warrant or any Existing Orius
Option means the number of shares of Orius Common Stock issuable upon exercise
of such warrant or option as of the Effective Time, which number shall not
exceed (i) in the case of an Orius Warrant, the number set forth opposite the
name of the holder of such Orius Warrant on the Orius Warrantholders Schedule
hereto as the number of shares of Orius Common Stock issuable upon exercise of
such Orius Warrant, less the aggregate number of shares of Orius Common Stock,
if any, issued upon exercise of such Orius Warrant on or after the date hereof
and at or prior to the Effective Time, and (ii) in the case of an Existing Orius
Option, the number set forth opposite the name of the holder of such Existing
Orius Option on the Orius Optionholders Schedule hereto as the number of shares
of Orius Common Stock issuable upon exercise of such Existing Orius Option, less
the aggregate number of shares of Orius Common Stock, if any, issued upon
exercise of such Existing Orius Option on or after the date hereof and at or
prior to the Effective Time.
"Subsidiary" means, with respect to any Person, any
corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof,
or (ii) if a limited liability company, partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that
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Person or a combination thereof. For purposes hereof, a Person or Persons shall
be deemed to have a majority ownership interest in a limited liability company,
partnership, association or other business entity if such Person or Persons
shall be allocated a majority of limited liability company, partnership,
association or other business entity gains or losses or shall be or control any
managing director or general partner of such limited liability company,
partnership, association or other business entity.
"Tax" or "Taxes" means federal, state, county, local, foreign
or other income, gross receipts, ad valorem, franchise, profits, sales or use,
transfer, registration, excise, utility, environmental, communications, real or
personal property, capital stock, license, payroll, wage or other withholding,
employment, social security, severance, stamp, occupation, alternative or add-on
minimum, estimated and other taxes of any kind whatsoever (including
deficiencies, penalties, additions to tax, and interest attributable thereto)
whether disputed or not.
"Tax Return" means any return, information report or filing
with respect to Taxes, including any schedules attached thereto and including
any amendment thereof.
"Third Party Losses" has the meaning set forth in Section 7B.
"Treasury Regulations" means the United States Treasury
Regulations promulgated under the Code, and any reference to any particular
Treasury Regulation section shall be interpreted to include any final or
temporary revision of or successor to that section regardless of how numbered or
classified.
"Unsatisfied Condition" has the meaning set forth in Section
9A.
"Vanke Shares" means (i) prior to the Vanke Exchange, the
56,746.90 shares of LISN common stock held by Xxxxxx X. Xxxxx subject to
repurchase by LISN pursuant to Section 2.2(d) of the LISN Recapitalization
Agreement, and (ii) upon and after the Vanke Exchange, the shares of LISN Class
C Common issued in the Vanke Exchange.
"Xxxxxx Xxxxx" means Xxxxxx Xxxxx & Partners II, L.P. and
Xxxxxx Xxxxx & Partners Dutch, L.P., collectively.
Section 9. Termination.
9A. Conditions of Termination. This Agreement may be
terminated at any time prior to the Closing:
(i) by the mutual written consent of Orius and LISN;
(ii) by the LISN Shareholder Representative or the Investor
Representative if there has been a material misrepresentation, material breach
of warranty or material breach of a covenant by Orius or any Orius Stockholder
in the representations and warranties or covenants set forth in this Agreement
or the Schedules and Exhibits attached hereto, including without limitation in
any Joinder
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Agreement, the Purchase Agreement, the HIG Put Agreement, the HIG Call
Agreement, any of the Orius Put Agreements or any of the Orius Call Agreements,
which in the case of any breach of covenant, has not been cured within ten days
after written notification thereof by the LISN Shareholder Representative or the
Investor Representative to Orius and the Orius Stockholders Representative;
(iii) by Orius and the Orius Stockholders Representative if
there has been a material misrepresentation, material breach of warranty or
material breach of covenant by LISN or the LISN Shareholders in the
representations and warranties or covenants set forth in this Agreement or the
Schedules and Exhibits attached hereto, or by LISN in the Purchase Agreement,
the HIG Put Agreement, the HIG Call Agreement, any of the Orius Put Agreements
or any of the Orius Call Agreements, which in the case of any breach of covenant
has not been cured within ten days after written notification thereof by Orius
and the Orius Stockholders to the LISN Shareholder Representative;
(iv) if as of the expiration of the fifteen day period
commencing on the date hereof, either LISN or the LISN Shareholders
Representative has not received from Orius a written notice, in form and
substance reasonably satisfactory to LISN and the LISN Shareholders
Representative (accompanied by such evidence as to its contents as LISN or the
LISN Shareholders Representative may reasonably request) certifying that as of
such time;
(a) each Orius Stockholder (other than HIG) has
executed and irrevocably delivered to the Orius Stockholders
Representative a Joinder Agreement and/or an Orius Call Agreement,
pursuant to which such Orius Stockholder has agreed to deliver to
Orius, either at the Closing pursuant to such Joinder Agreement or upon
exercise by Orius of its rights pursuant to Orius Call Agreement, each
share of Orius Common Stock set forth opposite its name on the Orius
Stockholders Schedule hereto, and such shares comprise all of the
equity interests that such Orius Stockholder holds or is entitled to in
Orius (other than Existing Orius Options), and each Orius Warrantholder
has executed and irrevocably delivered to Orius a Joinder Agreement
with respect to Orius Warrants exercisable in the aggregate for the
number of shares of Orius Common Stock set forth opposite its name on
the Orius Warrantholders Schedule attached hereto and such Orius
Warrants comprise all of the equity interests that such Orius
Warrantholder holds or is entitled to in Orius, and there are no
outstanding shares of Orius Common Stock and no outstanding Orius
Warrants which are not subject to the terms of such an executed Joinder
Agreement or Orius Call Agreement;
(b) HIG Cable has executed and irrevocably delivered the
Purchase Agreement to Purchaser and HIG West has executed and
irrevocably delivered the HIG Put Agreement and HIG Call Agreement to
Purchaser, and each of such agreements is in full force and effect; and
(c) each Orius Stockholder other than HIG has
delivered to the Orius Stockholders Representative the certificates
representing the shares of Orius Common Stock held by such Person, duly
endorsed as required for delivery to Orius as described in the Joinder
Agreement or Orius Call Agreement executed by such Orius Stockholder
and relating
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to such shares (except to the extent that such Person has executed and
delivered to the Orius Stockholders Representative a lost certificate
affidavit and indemnity in the form of Exhibit X hereto in respect of
such shares), and each of the Orius Stockholders, other than the Orius
Selling Stockholders, has delivered to the Orius Stockholders
Representative a counterpart signature page to the Investor Rights
Agreement;
(v) by the LISN Shareholder Representative, the Investor
Representative or the Orius Stockholders Representative if the transactions
contemplated hereby have not been consummated by December 22, 1999 provided that
neither the Person electing termination pursuant to this Section 9A(iv), or any
Related Person in respect of such Person, is in breach of any of its
representations, warranties, covenants or agreements contained in this Agreement
or the Schedules and Exhibits attached hereto (including without limitation the
Purchase Agreement, a Joinder Agreement, the Put Agreement or the Call
Agreement) which has caused a closing condition to the obligations of LISN set
forth in Section 2 (in the case of a breach by the Orius Stockholders
Representative, Orius or any Orius Stockholder) or of Orius set forth in Section
3 (in the case of any breach by the LISN Shareholder Representative, LISN or any
LISN Shareholder), to be unsatisfied. For purposes of the foregoing, "Related
Person"in respect of the LISN Shareholder Representative or the Investor
Representative means any of the LISN Shareholders and LISN, and in respect of
the Orius Stockholders Representative means any of Orius and the Orius
Stockholders.
Notwithstanding the immediately preceding clause, if a Representative or any of
its Related Persons has unintentionally breached this Agreement and such breach
has prevented the consummation of the transactions contemplated hereby, such
party may terminate this Agreement pursuant to this Section 9(A)(iv) if (i) such
Representative and its Related Persons who are in breach (the "Breaching
Party"), promptly upon becoming aware of such breach, delivers to LISN, Orius
and the other Representatives a written notice (a "Breach Notice") describing in
reasonable detail such breach (the "Identified Breach"), specifying the
condition described above which, because of such breach, will not be satisfied
(the "Unsatisfied Condition"), requesting that the Persons whose obligations are
subject to the Unsatisfied Condition deliver to the Breaching Party a Qualified
Waiver of the Unsatisfied Condition, and confirming that if such Persons deliver
such a waiver and consummate the transactions contemplated hereby such Persons
delivering such waiver shall be entitled to indemnification pursuant to Section
7B above in respect of such Identified Breach, and (ii) such other Persons fail
to deliver to the Breaching Party a Qualifying Waiver (as defined below) within
5 business days after receiving such Breach Notice, the Breaching Party shall
thereafter be permitted to terminate this Agreement pursuant to this Section
9A(iv). For purposes hereof, a "Qualifying Waiver" in respect of a Breach Notice
is an agreement to waive the Unsatisfied Condition described therein to the
extent that it remains unsatisfied solely due to the Identified Breach described
therein.
9B. Effect of Termination. In the event of termination of this
Agreement by either the LISN Shareholder Representative or Orius and the Orius
Stockholders Representative as provided above, this Agreement shall forthwith
become void and of no further force and effect, except that (i) the covenants
and agreements set forth in Section 10S. Section 7F, Section 7G and Section 10N
shall survive such termination until the applicable statute of limitations runs,
(ii) nothing in Section 9A or this Section 9B shall be deemed to release any
Person from any liability for any breach by such Person of the terms and
provisions of this Agreement prior to such
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termination or to impair the right of any Person to compel specific performance
by another Person of its obligations under this Agreement, except that no Person
shall be liable to any other Person for any damages arising out of such breach,
other than for such other Person's out-of-pocket costs and expenses incurred in
connection with the transactions contemplated by this Agreement (including fees
and expenses of legal counsel, accountants, investment bankers and other
representatives and consultants) unless such breach was wilful. Notwithstanding
anything herein to the contrary, in the event that the LISN Representative or
the Investor Representative elects to terminate this Agreement pursuant to
Section 9A(iv) above, Orius shall, within three business days of receiving
notice from such Person of the aggregate amount of Bridge Financing Expenses
incurred by LISN and its Affiliates, pay to LISN by wire transfer of immediately
available funds the amount of such Bridge Financing Expenses. For purposes
hereof, "Bridge Financing Expenses" means the aggregate amount of fees and
out-of-pocket expenses paid or owing by LISN pursuant to the Bridge Loan
Commitment Letter.
Section 10. Miscellaneous.
10A. Fees and Expenses. Each Party shall pay all of its own
fees and expenses (including fees and expenses of legal counsel, accountants,
investment bankers and other representatives and consultants) in connection with
this Agreement and the consummation of the transactions contemplated hereby. If
any legal action or other proceeding relating to this Agreement, the agreements
contemplated hereby, the transactions contemplated hereby or thereby or the
enforcement of any provision of this Agreement or the agreements contemplated
hereby is brought against any Party, the prevailing Party in such action or
proceeding shall be entitled to recover all reasonable expenses relating thereto
(including attorneys' fees and expenses) from the Party against which such
action or proceeding is brought in addition to any other relief to which such
prevailing Party may be entitled.
10B. Remedies. The Parties shall have all rights and remedies
set forth in this Agreement and all rights and remedies which the Parties have
been granted at any time under any other agreement or contract executed in
connection with the transactions contemplated hereby and, with respect to any
additional rights the Parties may have against Orius, all of the rights which
the Parties have under applicable law. Each of the Parties acknowledges and
agrees that the other Parties would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the Parties
agrees that the other Parties shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof in any action
instituted in any court of the United States or any state thereof having
jurisdiction over the Parties and the matter.
10C. Transfer of Restricted Securities.
(i) Restricted Securities are transferable only pursuant to
(a) public offerings registered under the Securities Act, (b) Rule 144 or Rule
144A of the Securities and Exchange Commission (or any similar rule or rules
then in force) if such rule is available and (c) subject to the conditions
specified in subparagraph (ii) below, any other legally available means of
transfer.
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(ii) In connection with the transfer of any Restricted
Securities (other than a transfer described in clause (a) or (b) of subparagraph
(i) above), the holder thereof shall deliver written notice to Orius describing
in reasonable detail the transfer or proposed transfer, together with an opinion
of Xxxxxxxx & Ellis, Akerman, Senterfitt & Xxxxxx, White and Xxxxxxxx LLP or
other counsel which (to Orius's reasonable satisfaction) is knowledgeable in
securities law matters to the effect that such transfer of Restricted Securities
may be effected without registration of such Restricted Securities under the
Securities Act. In addition, if the holder of the Restricted Securities delivers
to Orius an opinion of Xxxxxxxx & Ellis, Akerman, Senterfitt & Xxxxxx, White and
Xxxxxxxx LLP or such other counsel that no subsequent transfer of such
Restricted Securities shall require registration under the Securities Act, Orius
shall promptly upon such contemplated transfer deliver new certificates or
instruments, as the case may be, for such Restricted Securities which do not
bear the Securities Act legend set forth in Section 10C(v) below. If Orius is
not required to deliver new certificates or instruments, as the case may be, for
such Restricted Securities not bearing such legend, the holder thereof shall not
transfer the same until the prospective transferee has confirmed to Orius in
writing its agreement to be bound by the conditions contained in this Section
10C(ii) and Section 10C(v) below.
(iii) Upon the request of a holder of Restricted Securities,
Orius shall promptly supply to such holder or such holder's prospective
transferees all information regarding Orius required to be delivered in
connection with a transfer pursuant to Rule 144A of the Securities and Exchange
Commission.
(iv) If any Restricted Securities become eligible for sale
pursuant to Rule 144(k), Orius shall, upon the request of the holder of such
Restricted Securities, remove the legend set forth in Section 10C(v) from the
certificates or instruments, as the case may be, representing such Restricted
Securities.
(v) Each certificate or instrument representing Restricted
Securities shall be imprinted with a legend in substantially the following form:
"The Securities represented hereby have not been registered
under the Securities Act of 1933, as amended, or under any
state securities laws. Neither this security nor any portion
hereof or interest herein may be sold, assigned, transferred,
pledged or otherwise disposed of unless the same is registered
under said Act and applicable state securities laws or unless
an exemption from such registration is available and the
issuer hereof (the "Company") will have received evidence of
such exemption reasonably satisfactory to the Company."
10D. Consent to Amendments. This Agreement may be amended, or
any provision of this Agreement may be waived; provided that any such amendment
or waiver shall be binding upon Orius or LISN if and only if set forth in a
writing executed by Orius or LISN, respectively, and referring specifically to
the provision alleged to have
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been amended or waived, any such amendment or waiver shall be binding upon the
Orius Stockholders if and only if set forth in a writing executed by the Orius
Stockholders Representative and referring specifically to the provision alleged
to have been amended or waived, and any such amendment or waiver shall be
binding upon the LISN Shareholders or the Investors if and only if set forth in
a writing executed by the LISN Shareholders Representative and the Investor
Representative and referring specifically to the provision alleged to have been
amended or waived. No course of dealing between or among the Parties shall be
deemed effective to modify, amend or discharge any part of this Agreement or any
rights or obligations of any Party under or by reason of this Agreement.
10E. Successors and Assigns.
(i) This Agreement and all covenants and agreements contained
herein and rights, interests or obligations hereunder, by or on behalf of any of
the Parties hereto, shall bind and inure to the benefit of the respective
successors and permitted assigns of the Parties hereto whether so expressed or
not, except that prior to the Closing neither this Agreement nor any of the
covenants and agreements herein or rights, interests or obligations hereunder
may be assigned or delegated by any Orius Stockholder, or assigned or delegated
by Orius, without the prior written consent of LISN and the LISN Shareholder
Representative, prior to the Closing neither this Agreement nor any of the
covenants and agreements herein or rights, interests or obligations hereunder
may be assigned or delegated by any LISN Shareholder, or assigned or delegated
by LISN, without the prior written consent of Orius and the Orius Stockholders
Representative, and after the Closing neither this Agreement nor any of the
covenants and agreements herein or rights, interests or obligations hereunder
may be assigned or delegated by any of such Persons without the prior written
consent of Orius. In connection with any such assignment, the assigning Person
shall cause the prospective assignee to execute and deliver to the Parties a
counterpart to this Agreement, and to each other agreement contemplated hereby
to which such assigning Person is or is contemplated hereby or thereby be a
party, and an acknowledgment by such Person agreeing to be bound by all terms
and provisions hereof and thereof in the same manner and to the same extent as
the assigning party was bound thereby prior to such assignment. Notwithstanding
the foregoing, any Person entitled to indemnity rights pursuant to Section 7 may
assign such Person's rights to indemnification under Section 7 of this Agreement
to any lender to Orius or any of its Subsidiaries as collateral security.
(ii) Orius and its Subsidiaries, and any Orius Stockholder or
LISN Shareholder may assign this Agreement and its rights and obligations
hereunder in connection with a merger or consolidation involving Orius or any of
its Subsidiaries or in connection with a sale of stock or assets of Orius or any
of its Subsidiaries or other disposition of Orius or any of its Subsidiaries.
10F. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement or the application of any
such provision to any Person or circumstance shall be held to be prohibited by,
illegal or unenforceable under applicable law in any respect by a court of
competent jurisdiction, such provision shall be ineffective only to the extent
of such prohibition or illegality or unenforceability, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
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10G. Counterparts. This Agreement may be executed
simultaneously in counterparts (including by means of telecopied signature
pages), any one of which need not contain the signatures of more than one Party,
but all such counterparts taken together shall constitute one and the same
Agreement.
10H. Descriptive Headings; Interpretation. The headings and
captions used in this Agreement and the table of contents to this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized terms used in any Schedule or
Exhibit attached hereto and not otherwise defined therein shall have the
meanings set forth in this Agreement. The use of the word "including" herein
shall mean "including without limitation." The Parties intend that each
representation, warranty and covenant contained herein shall have independent
significance. If any Party has breached any representation, warranty or covenant
contained herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the Party has not
breached shall not detract from or mitigate the fact that the Party is in breach
of the first representation, warranty or covenant. Each reference to "Orius" or
"LISN" herein shall be deemed to be a reference to such Person and its
predecessors, collectively.
10I. Entire Agreement. This Agreement and the agreements and
documents referred to herein contain the entire agreement and understanding
between the Parties with respect to the subject matter hereof and supersede all
prior agreements and understandings whether written or oral, relating to such
subject matter in any way.
10J. No Third-Party Beneficiaries. This Agreement is for the
sole benefit of the Parties and their permitted successors and assigns and
nothing herein expressed or implied shall give or be construed to give any
Person, other than the Parties and such permitted successors and assigns, any
legal or equitable rights hereunder.
10K. Schedules. No exceptions to any representations or
warranties disclosed on one Schedule shall constitute an exception to any other
representations or warranties made in this Agreement unless the substance of
such exception is disclosed as provided herein on each such other applicable
Schedule or a specific cross-reference to a disclosure on another Schedule is
made.
10L. Cooperation on Tax Matters. The Parties shall
cooperatefully, as and to the extent reasonably requested by each Party and at
the requesting Party's expense, in connection with any audit, litigation or
other proceeding with respect to Taxes. Such cooperation shall include the
retention and (upon any Party's request) the provision of records and
information which are reasonably relevant to any such audit, litigation or other
proceeding and making employees available on a mutually convenient basis to
provide additional information and explanation of any material provided
hereunder. The Parties agree (i) to retain all books and records with respect to
Tax matters pertinent to Orius and its Subsidiaries and LISN and its
Subsidiaries relating to any taxable period beginning before the Closing Date
until the expiration of the statute of limitations (and, to the extent notified
by any Party, any extensions thereof) applicable to such taxable periods, and to
abide by all record retention agreements entered into with any taxing authority,
and (ii) to give each Party reasonable written notice prior to transferring,
destroying or discarding any such books and records
-97-
106
and, if any Party so requests, the LISN Shareholders, Orius or the Orius
Stockholders, as the case may be, shall allow such party to take possession of
such books and records.
10M. Schedules and Exhibits. All Schedules and Exhibits
attached hereto or referred to herein are hereby incorporated in and made a part
of this Agreement as if set forth in full herein.
10N. Governing Law; Jurisdiction and Venue; Service of
Process; Waiver of Right to Jury Trial.
(i) The law of the State of Florida shall govern all issues
and questions concerning the relative rights and obligations of Orius and the
holders of its equity securities. All other issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
Schedules and Exhibits hereto (including the Joinder Agreements, the Put
Agreements, the Call Agreements, the Note Exchange Agreement, the Purchase
Agreement and the Investment Agreement) shall be governed by, and construed in
accordance with, the laws of the State of Illinois without giving effect to any
choice of law or conflict of law rules or provisions (whether of the State of
Illinois or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Illinois. In furtherance of the
foregoing, the internal law of the State of Illinois shall control the
interpretation and construction of this Agreement (and all Schedules and
Exhibits hereto, including the Joinder Agreements, the Put Agreements (other
than the HIG Put Agreement), the Call Agreements (other than the HIG Call
Agreement), the Note Exchange Agreement, the Purchase Agreement and the
Investment Agreement), even though under that jurisdiction's choice of law or
conflict of law analysis, the substantive law of some other jurisdiction would
ordinarily apply.
(ii) EACH OF THE PARTIES HERETO, AND EACH OF THE ORIUS
STOCKHOLDERS, THE LISN SHAREHOLDERS AND THE INVESTORS, BY EXECUTING ANY OF THE
JOINDER AGREEMENTS, PUT AGREEMENTS, CALL AGREEMENTS, PURCHASE AGREEMENT, NOTE
EXCHANGE AGREEMENT, INVESTMENT AGREEMENT OR LISN TRANSMITTAL LETTER
(COLLECTIVELY, THE "CONSENTING PARTIES", AND EACH INDIVIDUALLY A "CONSENTING
PARTY"), IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL
COURTS OF THE NORTHERN DISTRICT OF ILLINOIS, AND THE STATE COURTS OF XXXX
COUNTY, ILLINOIS, FOR ANY LEGAL ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION ANY OF THE JOINDER AGREEMENTS, PUT
AGREEMENTS, CALL AGREEMENTS, PURCHASE AGREEMENT, NOTE EXCHANGE AGREEMENT OR
INVESTMENT AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY ANY OF SUCH
AGREEMENTS, AND AGREES THAT ANY SUCH ACTION, SUIT, OR PROCEEDING MAY BE BROUGHT
ONLY IN SUCH COURTS, PROVIDED THAT THIS SECTION SHALL NOT PREVENT ANY CONSENTING
PARTY FROM SEEKING TO ENFORCE ANY JUDGMENT IN ANY OTHER COURT. EACH OF THE
CONSENTING PARTIES FURTHER WAIVES ANY OBJECTION TO THE LAYING OF VENUE FOR ANY
SUCH SUIT ACTION, OR PROCEEDING IN SUCH COURTS AND
-98-
107
AGREES NOT TO ASSERT ANY DEFENSE OF LACK OF PERSONAL JURISDICTION, IMPROPER
VENUE OR FORUM NON CONVENIENS IN CONNECTION WITH ANY SUCH SUIT, ACTION OR
PROCEEDING.
(iii) EACH CONSENTING PARTY AGREES TO ACCEPT AND ACKNOWLEDGE
SERVICE OF ANY AND ALL PROCESS THAT MAY BE SERVED, AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED BY THE FEDERAL COURTS OF THE NORTHERN DISTRICT OF
ILLINOIS, IN ANY SUIT, ACTION, OR PROCEEDING. EACH CONSENTING PARTY AGREES THAT
ANY SERVICE OF PROCESS UPON IT MAILED BY REGISTERED MAIL, RETURN RECEIPT
REQUESTED, OR BY REPUTABLE OVERNIGHT COURIER SERVICE, TO SUCH CONSENTING PARTY,
OR TO THE REPRESENTATIVE OF SUCH CONSENTING PARTY APPOINTED PURSUANT TO THIS
AGREEMENT, A JOINDER AGREEMENT, A PUT AGREEMENT, A CALL AGREEMENT, THE NOTE
EXCHANGE AGREEMENT OR THE INVESTMENT AGREEMENT, AT THE ADDRESS PROVIDED IN
EXHIBIT D OF THIS AGREEMENT SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE
OF PROCESS UPON SUCH CONSENTING PARTY IN ANY SUCH SUIT, ACTION, OR PROCEEDING,
SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY THE CONSENTING PARTIES TO BE EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT. A COPY OF SUCH PROCESS SO SERVED SHALL BE
MAILED BY REGISTERED MAIL TO THE COMPANY AT ITS ADDRESS PROVIDED HEREIN, EXCEPT
THAT UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY
SHALL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS (UNLESS THE COMPANY IS THE
PARTY SO SERVED AND IS NOT OTHERWISE SERVED). TO THE EXTENT PERMITTED BY LAW, IF
ANY REPRESENTATIVE OR AGENT APPOINTED BY A CONSENTING PARTY REFUSES TO ACCEPT
SERVICE, THE CONSENTING PARTY HEREBY AGREES THAT SERVICE UPON SUCH AGENT,
REPRESENTATIVE OR CONSENTING PARTY BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE.
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.
(iv) EACH CONSENTING PARTY ON BEHALF OF ITSELF, ITS SUCCESSORS
AND ASSIGNS, HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY
JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(v) EACH OF THE CONSENTING PARTIES AGREES THAT THIS SECTION
10O IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT AND ACKNOWLEDGES THAT
THE OTHER CONSENTING PARTIES WOULD NOT ENTER INTO THIS AGREEMENT OR THE OTHER
AGREEMENTS CONTEMPLATED HEREBY IF THIS SECTION 10O WERE NOT PART OF THIS
AGREEMENT.
10O. Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given (i) when delivered
personally to the recipient, (ii) one business day after being sent to the
recipient by reputable overnight courier service (charges prepaid), (iii) upon
machine-generated acknowledgment of receipt after transmittal by facsimile if so
acknowledged to
-99-
108
have been received before 5:00 p.m. on a business day at the location of receipt
and otherwise on the next following business day, provided in each such notice,
demand or other communication is also deposited within 24 hours thereafter with
a reputable overnight courier service (charges prepaid) for delivery to the same
Person, or (iv) five days after being mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid. Such notices,
demands and other communications shall be sent to each LISN Shareholder and such
Orius Stockholder at the address indicated on the LISN Transmittal Letter or the
Joinder Agreements executed and delivered by such LISN Shareholder or such Orius
Stockholder, respectively, and to Orius, the Representatives, Orius and LISN, as
the case may be, at the addresses indicated below, or to such other address or
to the attention of such other person as the recipient party has specified by
prior written notice to the sending party.
Orius and Merger Sub (prior to the Closing):
Orius Corp.
0000 Xxxxx Xxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
(which shall not constitute notice to Orius)
Akerman, Senterfitt & Xxxxxx, P.A.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
and
H.I.G. Capital Management, Inc.
0000 Xxxxxxxx Xxx Xx. Xxxxx 0000
Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
and
-100-
109
White and Xxxxxxxx LLP
0000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: M. Xxxxxx Xxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Orius and Merger Sub (after the Closing):
Orius Corp.
0000 Xxxxx Xxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
(which shall not constitute notice to Orius)
Xxxxxx Xxxxx & Partners II, L.P.
000 Xxxx Xxxxxx, Xxx. 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
Phone: (000) 000-0000
Facsimile: (312) 422- 2424
and:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Orius Stockholders Representative:
Xxxxxxx X. Xxxxxx
c/o Orius Corp.
0000 Xxxxx Xxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 000000
Attn: Chief Executive Officer
Phone: (000) 000-0000
Facsimile: (000) 000-0000
-101-
110
with a copy to:
(which shall not constitute notice to the Orius Stockholders
Representative)
White and Xxxxxxxx LLP
0000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: M. Xxxxxx Xxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
LISN (prior to the Closing):
LISN Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Phone: (440)
Facsimile: (000) 000-0000
with copies to:
(which shall not constitute notice to LISN)
Xxxxxx Xxxxx & Partners II, L.P.
000 Xxxx Xxxxxx, Xxx. 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
Phone: (000) 000-0000
Facsimile: (312) 422- 2424
and:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
-102-
111
LISN Shareholder Representative:
Xxxxxx Xxxxx & Partners II, L.P.
000 Xxxx Xxxxxx, Xxx. 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
Phone: (000) 000-0000
Facsimile: (312) 422- 2424
with copy to:
(which shall not constitute notice to the LISN Shareholder
Representative)
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
10P. No Strict Construction. The Parties have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the Parties, and no presumption or burden
of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any of the provisions of this Agreement.
* * * * *
-103-
112
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement and Plan of Reorganization on the date first written above.
THE COMPANY:
ORIUS CORP.
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------
Its:
---------------------------
MERGER SUB:
ORIUS MERGER SUB, INC.
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------
Its:
---------------------------
LISN:
LISN HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX
---------------------------
Its: President
---------------------------
[End of Signature Page to Agreement and Plan of Reorganization]
113
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Xxxxxxx X. Xxxxxxx
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
XXXXXXX X. XXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 X. Xxxxxxxx Xxx. XX
------------------------------ --------------------------------
Xx. Xxxxxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
114
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXX X. XXXXXX Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXX X. XXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 000 Xxx Xxxxxxx Xx.
------------------------------ --------------------------------
Xxxxxxx, Xx. 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
115
SIGNATURE PAGE TO
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
D. XXXXXX XXXXXX Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ D. XXXXXX XXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 X. Xxxxxxxx
------------------------------ --------------------------------
Xxxxxxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
116
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXX XXXXX XX. Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXX XXXXX XX.
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxxxxxxxx Xx.
------------------------------ --------------------------------
Xxxxxxxxx, Xx. 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
117
SIGNATURE PAGE TO
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXX XXXX XXXXXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXX XXXX XXXXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxxxxxxx Xx.
------------------------------ --------------------------------
Xxxxxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
118
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
XXXXXXX XXXXXX XXXXXX TRUST
----------------------------------------
Name of Entity
/s/ XXXXXXX XXXXXX XXXXXX TRUST
----------------------------------------
Signature
Print Name: XXXXXXX XXXXXX
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: ###-##-####
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 0000 Xxxxx Xxx
-------------------------------
Suite 400
-------------------------------
West Xxxx Xxxxx XX 00000
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
119
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXX X. XXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXX X. XXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 000 00xx Xxx
------------------------------ --------------------------------
Xxxxxx XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
120
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXX X. XXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXX X. XXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxxxxxxxx Creek Dr.
------------------------------ --------------------------------
Xxxxxxxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
121
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXX X. XXXXX Not an Accredited Investor.
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXXX X. XXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 X.X. Xxxxxxxxx Xx.
------------------------------ --------------------------------
Xxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
122
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXX XXXXX XXXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXX XXXXX XXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 310 Iron Mounthain
------------------------------ --------------------------------
Lake Oswego Oregon
------------------------------ --------------------------------
97034
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
123
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
P. XXXXXXXX XXXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ P. XXXXXXXX XXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 00000 Xxxxxxx Xx.
------------------------------ --------------------------------
Lake Oswego, Dr 97034
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
124
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXX XXXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
// XXXXXXX XXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 000 Xx Xxxxx Xx.
------------------------------ --------------------------------
Xxxxxx Xxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
125
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXX X. XXXXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXXX X. XXXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxxxxxxx Xx.
------------------------------ --------------------------------
Xxxxxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
126
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXX X. XXXXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXXX X. XXXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: W 0000 Xxx Xx. EH
------------------------------ --------------------------------
Xxxxxxx Xxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
127
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXX X. XXXXX Not an Accredited Investor.
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXX X. XXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxxx Xxxxx
------------------------------ --------------------------------
Xxxxxxxxxx, Xxxxxxx 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
128
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
Czarnicki Irrevocable Trust
----------------------------------------
Name of Entity
Xxxx X. Gomolchail
----------------------------------------
Signature
Print Name: XXXX X. GOMOLCHAIL
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: Applied for
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 0000 Xxxxxx Xxxx
-------------------------------
Xxxx XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
129
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXX XXXXXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXXX XXXXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 00000 X. Xxxx Xx.
------------------------------ --------------------------------
X. Xxxxxxxxxxx XX. 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
130
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXX CHILDRESS
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXXX CHILDRESS
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 000 Xxxxxxxx Xxxx
------------------------------ --------------------------------
Creve Xxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
131
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXX X. XXXXX Not An Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXX X. XXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxx Xxxxx Xxxxx
------------------------------ --------------------------------
Xxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
132
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
Xxxxxxxxx Xxxxxxx Gift Trust
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name: Xxxxx Xxxxxxx
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 0000 X.X. Xxxxxxxx Xx.
-------------------------------
Xxxxxx XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
133
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Not an Accredited Investor.
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
Xxxxxxx Xxxxxxx Gift Trust
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name: Xxxxx Xxxxxxx
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 0000 X.X. Xxxxxxxx Xx.
-------------------------------
Xxxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
134
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
Xxxxxx Xxxxxxx Gift Trust
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name: Xxxxx Xxxxxxx
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 0000 X.X. Xxxxxxxx Xx.
-------------------------------
Xxxxxx XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
135
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
Xxxxxxx Xxxxxxx Gift Trust
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name: Xxxxx Xxxxxxx
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 0000 X.X. Xxxxxxxx Xx.
-------------------------------
Xxxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
136
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Not an Accredited Investor.
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
XXXXXX XXXXXXX GIFT TRUST
----------------------------------------
Name of Entity
/s/ XXXXX XXXXXXX TRUSTEE
----------------------------------------
Signature
Print Name: XXXXX XXXXXXX
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 0000 X. X. Xxxxxxxx XX
-------------------------------
Xxxxxx XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
137
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Xxxxx Xxxxxxx
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 X. X. Xxxxxxxx Xx.
------------------------------ --------------------------------
Xxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
138
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXX. O. BACK
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXX X. BACK
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxxxxxx Xx.
------------------------------ --------------------------------
Xxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
139
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXX X. XXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXX X. XXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxxxxxx Xxxxx
------------------------------ --------------------------------
Xxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
140
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXX X. XXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXX X. XXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxxxxxx Xxxxx
------------------------------ --------------------------------
Xxxxxxx XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
141
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS WARRANTS
SIGN HERE
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as applicable, as well as the terms
and agreements above, and makes the representations and warranties set forth
above.
IF THE UNDERSIGNED IS AN INDIVIDUAL:
----------------------------------------
Print Name
----------------------------------------
Signature
Address:
------------------------------
------------------------------
------------------------------
IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST:
PNC Bank National Association
----------------------------------------
Name of Entity
/s/ XXXXX X. XXXX
----------------------------------------
Signature
Print Name: Xxxxx X. Xxxx
-----------------------------
Title: Managing Director
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: One PNC Plaza
-------------------------------
000 Xxxxx Xxxxxx
-------------------------------
Xxxxxxxxxx, XX 00000-0000
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON ORIUS
WARRANT(S) OR BY PERSON(S) AUTHORIZED TO BECOME REGISTERED HOLDER(S) BY ORIUS
WARRANT(S) AND DOCUMENTS TRANSMITTED HEREWITH.)
-10-
142
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS WARRANTS
SIGN HERE
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as applicable, as well as the terms
and agreements above, and makes the representations and warranties set forth
above.
IF THE UNDERSIGNED IS AN INDIVIDUAL:
----------------------------------------
Print Name
----------------------------------------
Signature
Address:
------------------------------
------------------------------
------------------------------
IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST:
Xxxxxxx Xxxxx Capital Corporation
----------------------------------------
Name of Entity
/s/ XXXXXXXXXXX X. XXXXX
----------------------------------------
Signature
Print Name: Xxxxxxxxxxx X. Xxxxx
-----------------------------
Title: Vice President
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: (000) 000-0000
-----------------------
Address: World Financial Center
-------------------------------
North Tower
-------------------------------
Xxx Xxxx, XX 00000-0000
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON ORIUS
WARRANT(S) OR BY PERSON(S) AUTHORIZED TO BECOME REGISTERED HOLDER(S) BY ORIUS
WARRANT(S) AND DOCUMENTS TRANSMITTED HEREWITH.)
-10-
143
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
MAGNETITE ASSET INVESTORS L.L.C.
----------------------------------------
Name of Entity
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Signature
By: Black Rock Financial Management Inc.,
as Managing Member
Print Name: XXXXXX X. XXXXXXX
-----------------------------
Title: Managing Director
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: (000) 000-0000
-----------------------
Address: c/o BlackRock Financial Management, Inc.
-------------------------------
000 Xxxx Xxx., 00xx Xxxxx
-------------------------------
Xxx Xxxx, XX 00000
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
144
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
XXXXXX FINANCIAL, INC.
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name: XXXXXX X. XXXX
-----------------------------
Title: Assistant Vice President
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 000 X. Xxxxxx
-------------------------------
Xxxxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
145
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
ANTARES CAPITAL CORPORATE
----------------------------------------
Name of Entity
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Signature
Print Name: XXXXX X. XXXXXXX
-----------------------------
Title: Director
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 311 X. Xxxxxx
-------------------------------
Suite 2725
-------------------------------
Xxxxxxx, XX. 00000
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
146
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXX XXXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXX XXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxxxxxx Xxxxx Xx
------------------------------ --------------------------------
Xxxxx, Xx 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
147
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
XXXXX X. XXXX & XXXXX X. XXXX TRUSTEES
OF THE XXXXX X. XXXX AND XXXXX X. XXXX
LOVING TRUST
----------------------------------------
Name of Entity
/s/ XXXXX X. XXXX
----------------------------------------
Signature
Print Name: XXXXX X. XXXX
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: ###-##-####
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 0000 Xxxxx Xxx.
-------------------------------
X'Xxxxxx, MO
-------------------------------
63366
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
148
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXX X. XXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXX X. XXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 000 Xxxxxxxxxx Xx.
------------------------------ --------------------------------
Xxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
149
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXX XXXXXXX Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXX XXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 22101 Xxxxxxxx
------------------------------ --------------------------------
Xxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
150
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
KITTY J. CHEVERERE Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ KITTY J. CHEVERERE
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 250 Eldorado N221
------------------------------ --------------------------------
Xxxxxxx XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
151
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXX XXXXXXXXX Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXX XXXXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxxxxx Xxx
------------------------------ --------------------------------
Xxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
152
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Dolobas Bonadeo Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 23351
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
153
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
Xxxxxxx Xxxxxx Xxxxxx Child Trust
----------------------------------------
Name of Entity
Xxxx X. Xxxxx
----------------------------------------
Signature
Print Name: Xxxx X. Xxxxx, Trustee
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 265 Runnymede
-------------------------------
Xx. Xxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
154
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
Xxxxxxxxx Xxxx Xxxxxx Grandchild Trust
----------------------------------------
Name of Entity
Xxxx X. Xxxxx
----------------------------------------
Signature
Print Name: XXXX X. XXXXX, TRUSTEE
-----------------------------
Title: TRUSTEE
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 265 Runnymede
-------------------------------
Xx. Xxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
155
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Not an Accredited Investor.
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
Xxxxxx Xxxxxxx Xxxxxx Grandchild Trust
----------------------------------------
Name of Entity
Xxxx X. Xxxxx
----------------------------------------
Signature
Print Name: Xxxx X. Xxxxx, TRUSTEE
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 265 Runnymede
-------------------------------
Xx. Xxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
156
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
XXXXXXXX XXX XXXXXX GRANDCHILD TRUST
----------------------------------------
Name of Entity
/s/ XXXX X. XXXXX
----------------------------------------
Signature
Print Name: XXXX X. XXXXX, TRUSTEE
-----------------------------
Title: TRUSTEE
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 265 Runnymede
-------------------------------
Xx. Xxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
157
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXXX X. XXXXXXXX Not an Accredited Investor.
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXXXX X. XXXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 5313 5 Miles Grant Rd
------------------------------ --------------------------------
204K 5Foot FL
------------------------------ --------------------------------
34997
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
158
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Xxxxx X. Xxxxxxxx Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
159
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Not an Accredited Investor.
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
Xxxxx Gene Grandchild Trust
----------------------------------------
Name of Entity
Xxxx X. Xxxxx
----------------------------------------
Signature
Print Name: Xxxx X. Xxxxx, TRUSTEE
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 265 Runnymede
-------------------------------
Xx. Xxxxx XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
160
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 X.X. Dr.
------------------------------ --------------------------------
Xxxx Xxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
161
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXX X. ROLL Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXXX X. ROLL
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 000 0xx Xxx XX
------------------------------ --------------------------------
Xxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
162
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Not an Accredited Investor.
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
THE XXXXXXX XXXXXX XXXXXX IRREVOCABLE
FAMILY TRUST
----------------------------------------
Name of Entity
Xxxx X. Xxxxx
----------------------------------------
Signature
Print Name: Xxxx X. Xxxxx, Trustee
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 265 Runnymede
-------------------------------
Xx. Xxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
163
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXX XXXXXX Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXX XXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 00000 Xxxxxx Xx.
------------------------------ --------------------------------
Xxxx Xxxxxxxxxxx, Xx 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
164
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXX XXXXXXX Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXXX XXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxxxxxx Xx
------------------------------ --------------------------------
Xxxxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
165
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
/s/ XXXX XXXXXXX XXXXXX
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXX XXXXXXX XXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXX XXXXXXX XXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 XX 0xx Xxx.
------------------------------ --------------------------------
Xxxx Xxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
166
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXX XXXXX XXXXXX Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXX XXXXX XXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxxxxxxxx Xxxxxx
------------------------------ --------------------------------
Xxx Xxxxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
167
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
/s/ XXXXXX X. XXXXXX
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXX X. XXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXX X. XXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 00000 Xxxxxxx Xxx Xxx
------------------------------ --------------------------------
Xxxx Xxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
168
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
/s/ Xxxxxxx Xxx Xxxxxx
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Xxxxxxx Xxx Xxxxxx
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
Xxxxxxx Xxx Xxxxxx
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 00000 Xxxxxxx Xxx Xxx
------------------------------ --------------------------------
Xxxx Xxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
169
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-155
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
The Xxxxxxxxx Xxxxxxxxxx Irrevocable
Trust Agreement
----------------------------------------
Name of Entity
/s/ XXXXX XXXXXXXX
----------------------------------------
Signature
Print Name: XXXXX XXXXXXXX
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: Applied For
----------------------
Telephone Number: (000) 000-0000
-----------------------
Address: 00000 Xxxxxxx Xx.
-------------------------------
Xxxxx Xxxx Xxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
170
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXXXX XXXXXXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXXXXX XXXXXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 Xxxxxxx Xxxx Xx
------------------------------ --------------------------------
No. Palm Beach, FL
------------------------------ --------------------------------
33408
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Share Identification Rider to Joinder Agreement.
171
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-152
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
THE XXXXX XXXXXXXXXX IRREVOCABLE
TRUST AGREEMENT
----------------------------------------
Name of Entity
/s/ Xxxxx Xxxxxxxx
----------------------------------------
Signature
Print Name: XXXXX XXXXXXXX
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: Applied For
----------------------
Telephone Number: (000) 000-0000
-----------------------
Address: 00000 Xxxxxxx Xx.
-------------------------------
Xxxxx Xxxx Xxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
172
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-151
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE /s/
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
The Xxxx Xxxxxxxxxx Irrevocable
Trust Agreement
----------------------------------------
Name of Entity
XXXXX XXXXXXXX
----------------------------------------
Signature
Print Name: XXXXX XXXXXXXX
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: Applied For
----------------------
Telephone Number: (000) 000-0000
-----------------------
Address: 00000 Xxxxxxx Xx.
-------------------------------
Xxxxx Xxxx Xxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
173
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-156
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXX X. XXXXXXXX, XX.
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXXX X. XXXXXXXX, XX.
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 00000 Xxxxxxx Xx.
------------------------------ --------------------------------
Xxxxx Xxxx Xxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.: Applied For
----------------------
Telephone Number: (000) 000-0000
-----------------------
Address: 00000 Xxxxxxx Xx.
-------------------------------
Xxxxx Xxxx Xxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
174
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-164
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
/s/ XXXXXXX X. XXXXXXXX AND XXXXXXXX XXXXXXXX
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXX X. XXXXXXXX AND
XXXXXXXX XXXXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 00000 Xxxxxxx Xx.
------------------------------ --------------------------------
Xxxxx Xxxx Xxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.: ###-##-####
----------------------
Telephone Number: (000) 000-0000
-----------------------
Address: 00000 Xxxxxxx Xx.
-------------------------------
Xxxxx Xxxx Xxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
175
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXX X. XXXXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXXX X. XXXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 00000 Xxxxxxx Xx.
------------------------------ --------------------------------
Xxxxx Xxxx Xxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.: ###-##-####
----------------------
Telephone Number: (000) 000-0000
-----------------------
Address: 00000 Xxxxxxx Xx.
-------------------------------
Xxxxx Xxxx Xxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
See Attached Share Identification Rider to Joinder Agreement.
176
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-154
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
The Xxxxxxxx Xxxxxxxx Irrevocable
Trust Agreement
----------------------------------------
Name of Entity
XXXXX XXXXXXXX
----------------------------------------
Signature
Print Name: XXXXX XXXXXXXX
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: Applied For
----------------------
Telephone Number: (000) 000-0000
-----------------------
Address: 00000 Xxxxxxx Xx.
-------------------------------
Xxxxx Xxxx Xxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
177
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-153
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
THE XXXX X. XXXXXXXX IRREVOCABLE
TRUST AGREEMENT
----------------------------------------
Name of Entity
XXXXX XXXXXXXX
----------------------------------------
Signature
Print Name: XXXXX XXXXXXXX
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: Applied for
----------------------
Telephone Number: (000) 000-0000
-----------------------
Address: 00000 Xxxxxxx Xx.
-------------------------------
Xxxxx Xxxx Xxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
178
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-138
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
Xxxx Xxxxxxx Xxxx Irrevocable Trust
----------------------------------------
Name of Entity
/s/ X.X. XXXXXXX
----------------------------------------
Signature
Print Name: X.X. XXXXXXX
-----------------------------
Title: Trustee
----------------------------------
Taxpayer I.D. No.: Applied For
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 000 X. Xxxxx Xx
-------------------------------
Xxxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
179
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-141
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Xxxx Xxxxxxx Xxxx
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ Xxxx Xxxxxxx Xxxx
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 0000 X. Xxx Xx.
------------------------------ --------------------------------
Xxxxxxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
180
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 000 Xxxx Xxxxxxx Xx.
------------------------------ --------------------------------
Xxxxxx, XX. 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
181
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-137
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
Xxxxxxx X. Xxxxxxx Irrevocable Trust
----------------------------------------
Name of Entity
/s/ XXXXXXX X. XXXXXXX
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.: Applied For
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 000 X. Xxxxx Xx
-------------------------------
Xxxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
182
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-140
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Xxxxxxx X. Xxxxxxx
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
183
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-143
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
X. X. Xxxxxxx
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ X. X. Xxxxxxx
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 000 X. Xxxxx Xx
------------------------------ --------------------------------
Xxxxxx, XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
184
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-139
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
Xxxxxxxxx X. Xxxxxxx Irrevocable Trust
----------------------------------------
Name of Entity
/s/ XXXXXXXXX X. XXXXXXX
----------------------------------------
Signature
Print Name: X. X. Xxxxxxx
-----------------------------
Title: TRUSTEE
----------------------------------
Taxpayer I.D. No.: Applied For
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 000 X. Xxxxx Xx
-------------------------------
Xxxxxx, XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
185
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
C-142
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
XXXXXXXXX X. XXXXXXX
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
/s/ XXXXXXXXX X. XXXXXXX
---------------------------------------- --------------------------------
Signature
--------------------------------
Address: 817 Pink Xxxxxxx Ct
------------------------------ --------------------------------
Xxxxxx XX 00000
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
----------------------------------------
Name of Entity
----------------------------------------
Signature
Print Name:
-----------------------------
Title:
----------------------------------
Taxpayer I.D. No.:
----------------------
Telephone Number:
-----------------------
Address:
-------------------------------
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
186
SIGNATURE
JOINDER TO REORGANIZATION AGREEMENT AND TRANSMITTAL OF ORIUS COMMON
The undersigned agrees to be bound by the terms of the Reorganization Agreement
and agrees to all of the provisions thereof, as well as the terms and agreements
above, and makes the representations and warranties set forth above.
SIGN HERE
--------------------------------
IF THE UNDERSIGNED IS AN INDIVIDUAL: EXCEPTIONS SCHEDULE
--------------------------------
Not an Accredited Investor
---------------------------------------- --------------------------------
Print Name
--------------------------------
--------------------------------
---------------------------------------- --------------------------------
Signature
--------------------------------
Address:
------------------------------ --------------------------------
------------------------------ --------------------------------
------------------------------ --------------------------------
If the Undersigned is a Corporation,
Partnership or Trust:
Powers Grandchildren's Trust
----------------------------------------
Name of Entity
/s/ XXXXXX X. XXXXXXXXX
----------------------------------------
Signature
Print Name: XXXXXX X. XXXXXXXXX
XXXXXXXX X. XXXXXXXXX
-----------------------------
Title: Trustees
----------------------------------
Taxpayer I.D. No.: 00-0000000
----------------------
Telephone Number: 000-000-0000
-----------------------
Address: 0000 Xxxxxxxxx Xx
-------------------------------
Xxxxxx XX 00000
-------------------------------
-------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE ORIUS COMMON OR BY PERSON(S) AUTHORIZED TO
BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND DOCUMENTS TRANSMITTED
HEREWITH.)
187
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
IF THE UNDERSIGNED IS AN INDIVIDUAL: IF THE UNDERSIGNED IS AN INDIVIDUAL:
------------------------------------ ------------------------------------
Print Name Print Name
------------------------------------ ------------------------------------
Signature Signature
IF THE UNDERSIGNED IS A CORPORATION, IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST: PARTNERSHIP OR TRUST:
BANCBOSTON VENTURES, INC. BANCBOSTON VENTURES, INC.
------------------------------------ ------------------------------------
Name of Entity Name of Entity
/s/ XXXXXXX X. XXXX /s/ XXXXXXX X. XXXX
------------------------------------ ------------------------------------
Signature Signature
Print Name: Xxxxxxx X. Xxxx Print Name: Xxxxxxx X. Xxxx
------------------------- -------------------------
Title: Director Title: Director
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
000000000 000000000
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
000-000-0000 000-000-0000
------------------------------------ ------------------------------------
Address: Address:
000 Xxxxxxx Xxxxxx, 00xx Xxxxx 000 Xxxxxxx Xxxxxx, 00xx Floor
------------------------------------ ------------------------------------
Xxxxxx, XX 00000 Xxxxxx, XX 00000
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
188
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
XXXXXXXX PARTNERS III, X.X. XXXXXXXX PARTNERS III, L.P.
------------------------------------ ------------------------------------
Name of Entity Name of Entity
/s/ XXXXXXX X. XXXX /s/ XXXXXXX X. XXXX
------------------------------------ ------------------------------------
Signature Signature
Print Name: XXXXXXX X. XXXX Print Name: XXXXXXX X. XXXX
------------------------- -------------------------
Title: Vice President Title: Vice President
Silverado III Corp. Silverado III corp.
General Partner, General Partner,
Silverado III, L.P. Silverado III, L.P.
General Partner, Xxxxxxxx General Partner, Xxxxxxxx
Partners III, LP Partners III, LP
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE LISN SHARES AND LISN JUNIOR NOTES OR BY
PERSON(S) AUTHORIZED TO BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND
DOCUMENTS TRANSMITTED HEREWITH.)
189
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
FLEET EQUITY PARTNERS VI, L.P. FLEET EQUITY PARTNERS VI, L.P.
------------------------------------ ------------------------------------
Name of Entity Name of Entity
/s/ /s/
------------------------------------ ------------------------------------
Signature Signature
Print Name: XXXXXXX X. XXXX Print Name: XXXXXXX X. XXXX
------------------------- -------------------------
Title: Vice President Title: Vice President
Fleet Growth Resources II, Inc. Fleet Growth Resources II, Inc.
General Partner General Partner
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE LISN SHARES AND LISN JUNIOR NOTES OR BY
PERSON(S) AUTHORIZED TO BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND
DOCUMENTS TRANSMITTED HEREWITH.)
190
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
FLEET VENTURE RESOURCES, INC. FLEET VENTURE RESOURCES, INC.
------------------------------------ ------------------------------------
Name of Entity Name of Entity
/s/ /s/
------------------------------------ ------------------------------------
Signature Signature
Print Name: XXXXXXX X. XXXX Print Name: XXXXXXX X. XXXX
------------------------- -------------------------
Title: Vice President Title: Vice President
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE LISN SHARES AND LISN JUNIOR NOTES OR BY
PERSON(S) AUTHORIZED TO BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND
DOCUMENTS TRANSMITTED HEREWITH.)
191
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
XXXXXXX PLAZA PARTNERS XXXXXXX PLAZA PARTNERS
------------------------------------ ------------------------------------
Name of Entity Name of Entity
/s/ XXXXXXX X. XXXX /s/ XXXXXXX X. XXXX
------------------------------------ ------------------------------------
Signature Signature
Print Name: XXXXXXX X. XXXX Print Name: XXXXXXX X. XXXX
------------------------- -------------------------
Title: General Partner Title: General Partner
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE LISN SHARES AND LISN JUNIOR NOTES OR BY
PERSON(S) AUTHORIZED TO BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND
DOCUMENTS TRANSMITTED HEREWITH.)
192
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
If the Undersigned is an Individual: If the Undersigned is an Individual:
------------------------------------ ------------------------------------
Print Name Print Name
------------------------------------ ------------------------------------
Signature Signature
If the Undersigned is a Corporation, If the Undersigned is a Corporation,
Partnership or Trust: Partnership or Trust:
INDOSUEZ LISN PARTNERS INDOSUEZ LISN PARTNERS
------------------------------------ ------------------------------------
Name of Entity Name of Entity
/s/ XXXXXXX XXXXX X. XXXXXXXXX /s/ XXXXXXX XXXXX X. XXXXXXXXX
------------------------------------ ------------------------------------
Signature Signature
Print Name: XXXXXXX XXXXX X. XXXXXXXXX Print Name: XXXXXXX XXXXX X. XXXXXXXXX
------------------------- -------------------------
Title: Vice Presidents of Indosvez Title: Vice Presidents of Indosuez XX XX, Inc.
XX XX, Inc., Managing General Partner Managing General Partner
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE LISN SHARES AND LISN JUNIOR NOTES OR BY
PERSON(S) AUTHORIZED TO BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND
DOCUMENTS TRANSMITTED HEREWITH.)
193
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
XXXXXX XXXXX & PARTNERS II, L.P. XXXXXX XXXXX & PARTNERS II, L.P.
By: Xxxxxx Xxxxx & Partners Management By: Xxxxxx Xxxxx & Partners Management II, X.X.
XX, L.L.C.
Its: General Partner Its: General Partner
By: Xxxxxx Xxxxx & Partners II, L.L.C. By: Xxxxxx Xxxxx & Partners II, L.L.C
By: /s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Director Title: Managing Director
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE LISN SHARES AND LISN JUNIOR NOTES OR BY
PERSON(S) AUTHORIZED TO BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND
DOCUMENTS TRANSMITTED HEREWITH.)
194
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
XXXXXX XXXXX & PARTNERS DUTCH, L.P. XXXXXX XXXXX & PARTNERS DUTCH, L.P.
By: Xxxxxx Xxxxx & Partners II, L.P. By: Xxxxxx Xxxxx & Partners II, L.P.
Its: General Partner Its: General Partner
By: Xxxxxx Xxxxx & Partners II, L.L.C. By: Xxxxxx Xxxxx & Partners II, L.L.C.
/s/ XXXXXX X. XXXXXXXXXX /s/ XXXXXX X. XXXXXXXXXX
------------------------------------ ------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Director Title: Managing Director
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE LISN SHARES AND LISN JUNIOR NOTES OR BY
PERSON(S) AUTHORIZED TO BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND
DOCUMENTS TRANSMITTED HEREWITH.)
195
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
IF THE UNDERSIGNED IS AN INDIVIDUAL: IF THE UNDERSIGNED IS AN INDIVIDUAL:
------------------------------------ ------------------------------------
Print Name Print Name
------------------------------------ ------------------------------------
Signature Signature
IF THE UNDERSIGNED IS A CORPORATION, IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST: PARTNERSHIP OR TRUST:
Xxxxx X. Xxxxxx
Electing Small Business
------------------------------------ ------------------------------------
Name of Entity Name of Entity
/s/ X. X. Xxxxxx /s/ X. X. Xxxxxx
------------------------------------ ------------------------------------
Signature Signature
Print Name: XXXXX X. XXXXXX Print Name: XXXXX X. XXXXXX
------------------------- -------------------------
Title: TRUSTEE Title:
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
00-0000000 ###-##-####
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
000-000-0000 000-000-0000
------------------------------------ ------------------------------------
Address: Address:
0000 Xxxxx Xxxxx Xx 0000 Xxxxx Xxxxx Xx
------------------------------------ ------------------------------------
Xxxxxxxx XX 00000 Xxxxxxxx XX 00000
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON STOCK
CERTIFICATE(S) REPRESENTING THE LISN SHARES AND LISN JUNIOR NOTES OR BY
PERSON(S) AUTHORIZED TO BECOME REGISTERED HOLDER(S) BY CERTIFICATE(S) AND
DOCUMENTS TRANSMITTED HEREWITH.)
196
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
IF THE UNDERSIGNED IS AN INDIVIDUAL: IF THE UNDERSIGNED IS AN INDIVIDUAL:
------------------------------------ ------------------------------------
Print Name Print Name
------------------------------------ ------------------------------------
Signature Signature
IF THE UNDERSIGNED IS A CORPORATION, IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST: PARTNERSHIP OR TRUST:
Xxxxxx X. Xxxxx Electing Xxxxxx X. Xxxxx Electing
Small Business Trust Small Business Trust
------------------------------------ ------------------------------------
Name of Entity Name of Entity
/s/ XXXXXX X. XXXXX /s/ XXXXXX X. XXXXX
------------------------------------ ------------------------------------
Signature Signature
Print Name: Xxxxxx X. Xxxxx Print Name: Xxxxxx X. Xxxxx
------------------------- -------------------------
Title: Trustee Title: Trustee
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
00-0000000 00-0000000
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
(000) 000-0000 (000) 000-0000
------------------------------------ ------------------------------------
Address: Address:
13792 Peppercreek Dr. 00000 Xxxxxxxxxxx Xx.
------------------------------------ ------------------------------------
Xxxxxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
197
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
IF THE UNDERSIGNED IS AN INDIVIDUAL: IF THE UNDERSIGNED IS AN INDIVIDUAL:
XXXXXXX XXXXXX XXXXXXX XXXXXX
------------------------------------ ------------------------------------
Print Name Print Name
/s/ XXXXXXX XXXXXX /s/ XXXXXXX XXXXXX
------------------------------------ ------------------------------------
Signature Signature
IF THE UNDERSIGNED IS A CORPORATION, IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST: PARTNERSHIP OR TRUST:
------------------------------------ ------------------------------------
Name of Entity Name of Entity
------------------------------------ ------------------------------------
Signature Signature
Print Name: Print Name:
------------------------- -------------------------
Title: Title:
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
198
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
IF THE UNDERSIGNED IS AN INDIVIDUAL: IF THE UNDERSIGNED IS AN INDIVIDUAL:
XXXXXX XXXXXXX
------------------------------------ ------------------------------------
Print Name Print Name
/s/ XXXXXX XXXXXXX
------------------------------------ ------------------------------------
Signature Signature
IF THE UNDERSIGNED IS A CORPORATION, IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST: PARTNERSHIP OR TRUST:
------------------------------------ ------------------------------------
Name of Entity Name of Entity
------------------------------------ ------------------------------------
Signature Signature
Print Name: Print Name:
------------------------- -------------------------
Title: Title:
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
199
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
IF THE UNDERSIGNED IS AN INDIVIDUAL: IF THE UNDERSIGNED IS AN INDIVIDUAL:
XXXXX XXXXXX
------------------------------------ ------------------------------------
Print Name Print Name
/s/ XXXXX XXXXXX
------------------------------------ ------------------------------------
Signature Signature
IF THE UNDERSIGNED IS A CORPORATION, IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST: PARTNERSHIP OR TRUST:
------------------------------------ ------------------------------------
Name of Entity Name of Entity
------------------------------------ ------------------------------------
Signature Signature
Print Name: Print Name:
------------------------- -------------------------
Title: Title:
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
200
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
IF THE UNDERSIGNED IS AN INDIVIDUAL: IF THE UNDERSIGNED IS AN INDIVIDUAL:
XXXXXX X. XXXXXXX XXXXXX X. XXXXXXX
------------------------------------ ------------------------------------
Print Name Print Name
/s/ XXXXXX X. XXXXXXX /s/ XXXXXX X. XXXXXXX
------------------------------------ ------------------------------------
Signature Signature
IF THE UNDERSIGNED IS A CORPORATION, IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST: PARTNERSHIP OR TRUST:
------------------------------------ ------------------------------------
Name of Entity Name of Entity
------------------------------------ ------------------------------------
Signature Signature
Print Name: Print Name:
------------------------- -------------------------
Title: Title:
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
201
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
IF THE UNDERSIGNED IS AN INDIVIDUAL: IF THE UNDERSIGNED IS AN INDIVIDUAL:
Xxxxxx X. Xxxxx Xxxxxx X. Xxxxx
------------------------------------ ------------------------------------
Print Name Print Name
/s/ XXXXXX X. XXXXX /S/ XXXXXX X. XXXXX
------------------------------------ ------------------------------------
SIGNATURE Signature
IF THE UNDERSIGNED IS A CORPORATION, IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST: PARTNERSHIP OR TRUST:
------------------------------------ ------------------------------------
Name of Entity Name of Entity
------------------------------------ ------------------------------------
Signature Signature
Print Name: Print Name:
------------------------- -------------------------
Title: Title:
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
202
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
IF THE UNDERSIGNED IS AN INDIVIDUAL: IF THE UNDERSIGNED IS AN INDIVIDUAL:
XXXXXX X. XXXXXXXX
------------------------------------ ------------------------------------
Print Name Print Name
/s/ XXXXXX X. XXXXXXXX
------------------------------------ ------------------------------------
Signature Signature
IF THE UNDERSIGNED IS A CORPORATION, IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST: PARTNERSHIP OR TRUST:
------------------------------------ ------------------------------------
Name of Entity Name of Entity
------------------------------------ ------------------------------------
Signature Signature
Print Name: Print Name:
------------------------- -------------------------
Title: Title:
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
203
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
IF THE UNDERSIGNED IS AN INDIVIDUAL: IF THE UNDERSIGNED IS AN INDIVIDUAL:
XXXXX X. XXXXX XXXXX X. XXXXX
------------------------------------ ------------------------------------
Print Name Print Name
/s/ XXXXX X. XXXXX /s/ XXXXX X. XXXXX
------------------------------------ ------------------------------------
Signature Signature
IF THE UNDERSIGNED IS A CORPORATION, IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST: PARTNERSHIP OR TRUST:
------------------------------------ ------------------------------------
Name of Entity Name of Entity
------------------------------------ ------------------------------------
Signature Signature
Print Name: Print Name:
------------------------- -------------------------
Title: Title:
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
204
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
IF THE UNDERSIGNED IS AN INDIVIDUAL: IF THE UNDERSIGNED IS AN INDIVIDUAL:
XXXXX X. XXXXXX XXXXX X. XXXXXX
------------------------------------ ------------------------------------
Print Name Print Name
/s/ XXXXX X. XXXXXX /s/ XXXXX X. XXXXXX
------------------------------------ ------------------------------------
Signature Signature
IF THE UNDERSIGNED IS A CORPORATION, IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST: PARTNERSHIP OR TRUST:
------------------------------------ ------------------------------------
Name of Entity Name of Entity
------------------------------------ ------------------------------------
Signature Signature
Print Name: Print Name:
------------------------- -------------------------
Title: Title:
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
205
SIGNATURE
TRANSMITTAL OF LISN SHARES SPECIFIC AGREEMENT TO
EXCHANGE NOTES
SIGN HERE SIGN HERE
The undersigned agrees to all of the The undersigned hereby agrees to
terms above, other than those exchange the LISN Junior Notes (as
exclusively relating to the LISN defined above) pursuant to the Note
Junior Notes, including by making Exchange Agreement.
the representations and warranties
set forth above.
IF THE UNDERSIGNED IS AN INDIVIDUAL: IF THE UNDERSIGNED IS AN INDIVIDUAL:
Xxxxx Xxxxxxx Xxxxx Xxxxxxx
------------------------------------ ------------------------------------
Print Name Print Name
/s/ Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
------------------------------------ ------------------------------------
Signature Signature
IF THE UNDERSIGNED IS A CORPORATION, IF THE UNDERSIGNED IS A CORPORATION,
PARTNERSHIP OR TRUST: PARTNERSHIP OR TRUST:
------------------------------------ ------------------------------------
Name of Entity Name of Entity
------------------------------------ ------------------------------------
Signature Signature
Print Name: Print Name:
------------------------- -------------------------
Title: Title:
------------------------------ ------------------------------
Taxpayer I.D. No.: Taxpayer I.D. No.:
------------------------------------ ------------------------------------
Telephone Number: Telephone Number:
------------------------------------ ------------------------------------
Address: Address:
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
------------------------------------ ------------------------------------
