ASSET PURCHASE AGREEMENT
AMONG
SUN PAGING COMMUNICATIONS, A FLORIDA GENERAL PARTNERSHIP,
XXXXXX COMMUNICATIONS INCORPORATED and
AMERICAN MOBILPHONE, INC.
AND
CONTACT COMMUNICATIONS INC. and
PRONET INC.
November 10, 1995
TABLE OF CONTENTS
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ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1 Assets to be Acquired . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Assumption of Certain Liabilities . . . . . . . . . . . . . . . . . 1
1.4 Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.5 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.6 Deposit Escrow Agreement. . . . . . . . . . . . . . . . . . . . . . 4
1.7 Indemnification Escrow Agreement. . . . . . . . . . . . . . . . . . 5
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND PRONET
2.1 Due Organization. . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Due Authorization . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.4 Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.5 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.6 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS AND THE PARTNERS
3.1 Due Organization. . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2 Due Authorization . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.3 Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.4 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.5 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . 7
3.6 Conduct of Business; Certain Actions. . . . . . . . . . . . . . . . 8
3.7 Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.8 Pagers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.9 Licenses and Permits. . . . . . . . . . . . . . . . . . . . . . . . 9
3.10 Intellectual Rights . . . . . . . . . . . . . . . . . . . . . . . . 9
(i)
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3.11 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . . 10
3.12 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.13 ERISA Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.14 Contracts and Agreements. . . . . . . . . . . . . . . . . . . . . . 11
3.15 Claims and Proceedings. . . . . . . . . . . . . . . . . . . . . . . 11
3.16 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.17 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.18 Business Relations. . . . . . . . . . . . . . . . . . . . . . . . . 13
3.19 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.20 Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.21 Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . 13
3.22 Customers and Suppliers . . . . . . . . . . . . . . . . . . . . . . 13
3.23 Interest in Competitors, Suppliers, and Customers . . . . . . . . . 14
3.24 Inventory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.25 Commission Sales Contracts. . . . . . . . . . . . . . . . . . . . . 14
3.26 Regulatory Certificates . . . . . . . . . . . . . . . . . . . . . . 14
3.27 Information Furnished . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 4
COVENANTS OF THE SELLERS AND THE PARTNERS
4.1 Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.2 Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.3 Satisfaction of All Conditions Precedent. . . . . . . . . . . . . . 15
4.4 No Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.5 Notice of Developments. . . . . . . . . . . . . . . . . . . . . . . 15
4.6 Notice of Breach. . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.7 Notice of Litigation. . . . . . . . . . . . . . . . . . . . . . . . 16
4.8 Continuation of Insurance Coverage. . . . . . . . . . . . . . . . . 16
4.9 Maintenance of Credit Terms . . . . . . . . . . . . . . . . . . . . 16
4.10 Updating Information. . . . . . . . . . . . . . . . . . . . . . . . 16
4.11 Interim Operations of the Sellers . . . . . . . . . . . . . . . . . 16
4.12 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . 17
4.13 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.14 Licenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(ii)
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ARTICLE 5
REGULATORY APPROVALS
ARTICLE 6
CONDITIONS TO CLOSING
6.1 Conditions to Obligations of the Purchaser and ProNet . . . . . . . 18
6.2 Conditions to Obligations of the Sellers and the Partners . . . . . 20
ARTICLE 7
TERMINATION
7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 8
INDEMNIFICATION
8.1 Indemnification of the Purchaser and ProNet . . . . . . . . . . . . 21
8.2 Indemnification Of the Seller and the Partners. . . . . . . . . . . 22
8.3 Defense of Third Party Claims . . . . . . . . . . . . . . . . . . . 22
8.4 Direct Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.5 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 9
MISCELLANEOUS
9.1 Collateral Agreements, Amendments, and Waivers. . . . . . . . . . . 24
9.2 Risk of Loss - Damage to Transferred Assets . . . . . . . . . . . . 24
9.3 Prorations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.4 Allocation of Purchase Price. . . . . . . . . . . . . . . . . . . . 25
(iii)
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9.5 Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.6 Sellers' Liabilities. . . . . . . . . . . . . . . . . . . . . . . . 25
9.7 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . 25
9.8 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.9 Invalid Provisions. . . . . . . . . . . . . . . . . . . . . . . . . 26
9.10 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.11 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.12 Survival of Representations, Warranties, and Covenants. . . . . . . 27
9.13 Public Announcement . . . . . . . . . . . . . . . . . . . . . . . . 27
9.14 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . 27
9.15 No Third-Party Beneficiaries. . . . . . . . . . . . . . . . . . . . 27
9.16 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.17 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.18 Sections; Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . 28
9.19 Number and Gender of Words. . . . . . . . . . . . . . . . . . . . . 28
9.22 Specific Performance. . . . . . . . . . . . . . . . . . . . . . . . 28
9.23 ProNet Guarantee. . . . . . . . . . . . . . . . . . . . . . . . . . 28
SCHEDULES
1.1 Transferred Assets
1.2 Excluded Assets
3.1 Foreign Qualification
3.3 Conflicts
3.4 Consents
3.5(a) September Asset List
3.6 Conduct of Business
3.7 Title
3.8 Tariffs
3.9 Licenses and Permits
3.10 Intellectual Rights
3.12 Insurance
3.15 Claims and Proceedings
3.17 Personnel
3.21 Accounts Receivable
3.22 Customers and Suppliers
3.24 Inventory
3.25 Commission Sales Contracts
6.1(g) Current Accounts
(iv)
EXHIBITS
A - Xxxx of Sale
B - Assumption Agreement
C - Form of Opinion of Counsel to the Sellers and the General Partners
D - Form of Opinion of FCC Counsel to the Sellers and the Partners
E - Noncompetition Agreement - Xxxxxx Communications Incorporated
E-1 - Noncompetition Agreement - American Mobilphone, Inc.
F - Noncompetition Agreement - Sun Paging Communications
G - License Agreement
H - Allocation of Purchase Price
I - Indemnification Escrow Agreement
J - Deposit Escrow Agreement
(v)
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is made and entered
into as of November 10, 1995, by and among Sun Paging Communications, a
Florida general partnership (the "Seller"), Xxxxxx Communications
Incorporated ("Xxxxxx"), American Mobilphone, Inc. ("American", collectively
with Xxxxxx, the "Partners"), and Contact Communications Inc., a Delaware
corporation (the "Purchaser") and ProNet Inc., a Delaware corporation
("ProNet").
R E C I T A L S
A. The Partners are the only partners of the Seller.
B. The Purchaser desires to purchase from the Seller, and the Seller
desires to sell to the Purchaser, upon the terms and subject to the
conditions set forth herein, substantially all of the property and assets of
the Seller that are used in the conduct of the Seller's radio paging system
business in Florida (such property, assets, and business, including all
rights to affiliated networks, being hereinafter collectively called the
"System").
A G R E E M E N T S
NOW, THEREFORE, in consideration of the respective representations,
warranties, agreements, and conditions hereinafter set forth, and other good
and valuable consideration, the sufficiency of which is hereby acknowledged,
the parties hereto hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1 ASSETS TO BE ACQUIRED. On the Closing Date (as hereinafter
defined), the Seller shall sell to the Purchaser, and the Purchaser shall
purchase from the Seller, on the terms and conditions set forth in this
Agreement, all of the property and assets of whatever nature of the Seller
that are used in the conduct of the System (other than as provided in Section
1.2 hereof) including, without limitation, the assets described in SCHEDULE
1.1 attached hereto (collectively, the "Transferred Assets"), free and clear
of all liens, security interests, claims, rights of another, and encumbrances
of any kind or character except as disclosed in SCHEDULE 3.7 attached hereto.
1.2 EXCLUDED ASSETS. The Seller shall not sell, assign, transfer, or
convey to the Purchaser hereunder any of the assets or property of the Seller
used in the conduct of the System listed on SCHEDULE 1.2 attached hereto (the
"Excluded Assets").
1.3 ASSUMPTION OF CERTAIN LIABILITIES. On the Closing Date, the
Purchaser shall assume and agree to perform and discharge the liabilities and
obligations of the Seller under:
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(a) All personal property leases listed on ANNEX 2 to SCHEDULE 1.1
(the "Personal Property Leases");
(b) All real estate leases (including any radio tower leases) listed
on ANNEX 3 to SCHEDULE 1.1 (the "Real Estate Leases"); and
(c) All contracts, agreements, arrangements, policies, and
instruments that are listed on ANNEX 4 to SCHEDULE 1.1 (the "Miscellaneous
Contracts" and, collectively with the Personal Property Leases and the Real
Estate Leases, the "Assumed Contracts"),
but only to the extent such liabilities and obligations relate to goods
delivered to, services performed for, or benefits received by the Purchaser
after the Closing.
In addition to the above described obligations under the Assumed
Contracts, the Purchaser shall assume and agrees to discharge the obligations
of the Seller with respect to the customer pager rental deposits in the
amounts set forth on the Closing Balance Sheet (as hereinafter defined) and
the obligations of the Seller to provide services with respect to the
deferred revenue accounts transferred to the Purchaser at the Closing (as
hereinafter defined) (such deposits, deferred revenue accounts and the
Assumed Contracts collectively referred to herein as the "Assumed
Liabilities"); provided however, that the Purchase Price shall be reduced by
the amount of the customer pager rental deposits and deferred revenues
existing on the Closing Date.
Notwithstanding the foregoing, it is expressly understood that the
Purchaser shall not be liable for and shall not assume any of the Seller's
obligations or liabilities (whether known or unknown, matured or unmatured,
or fixed or contingent) other than obligations and liabilities expressly
assumed in this Section 1.3. Without limiting the generality of the
foregoing, the Purchaser shall not assume any of the Seller's obligations or
liabilities in connection with the System with respect to (a) any claims for
workers compensation for claimed injuries occurring prior to the Closing
Date, (b) any foreign, Federal, state, county, or local taxes on income of
the Seller whether arising before or after the Closing Date, any foreign,
federal, state, county, or local taxes, fees, and assessments of any kind of
the Seller or for which the Seller has the obligation to collect from any
other party, including, without limitation, sales, use, gross receipts,
franchise, excise, payroll, including Social Security and unemployment,
value-added, withholding, and any other taxes, whether arising before or
after the Closing Date (Purchaser shall be responsible, however, without
limitation, for any foreign, state, county or local taxes relating to the
Transferred Assets of the System which accrue or arise as of and after the
Closing Date.) or any foreign, federal, state, county, or local taxes,
including, without limitation, sales, use, gross receipts and value-added
taxes, or any other fees assessed against Seller for sale of the Transferred
Assets to Purchaser under Section 1.1 hereof (Purchaser shall, however,
assume any liability for any taxes or fees assessed against Purchaser for the
purchase of the Transferred Assets from Seller under Section 1.1 hereof.) (c)
any liability for any violation by the Seller of any
2
statutes, laws, regulations, or ordinances of any federal, state, or local
government, including, without limitation, the failure to file or the
improper filing of any and all tax returns and other reports or the failure
to timely pay any and all taxes, fees, and assessments to any governmental
unit, authority, or instrumentality by the Seller, (d) any liability for any
breach of contract, negligence, or misconduct by the Seller or any of its
agents, servants, or employees, (e) any liability of the Seller arising out
of or pursuant to Seller's employee severance policy, if any, (f) any
liability of the Seller relating to any litigation arising from any event,
action, or omission relating to a time period prior to the Closing Date, (g)
any liability of the Seller relating to employee benefit plans maintained by
the Seller, (h) any liability arising out of or incurred in respect of any
transaction of the Seller occurring prior to or after the Closing Date, (i)
any liability of the Seller to its Partners, whether in connection with the
transactions contemplated by this Agreement or any subsequent liquidation and
dissolution of the Seller, or otherwise, including, but not limited to,
liabilities or obligations of the Seller to make distributions to the
Partners or distributions in liquidation. Seller shall indemnify Purchaser,
pursuant to Section 8 hereof, for any liabilities of Seller not expressly
assumed by the Purchaser pursuant to this Section 1.3.
1.4 PURCHASE PRICE. The aggregate purchase price payable by the
Purchaser to Seller in consideration for the sale of the Transferred Assets
shall be an amount equal to the sum of (A) $75,000, (the "Indemnification
Funds") which amount shall be deposited with the Escrow Agent (hereinafter
defined) as a deposit in accordance with Section 1.7 hereof and the terms of
the Indemnification Escrow Agreement a copy of which is attached hereto as
EXHIBIT I (B) $2,475,000 payable in cash to Seller on the Closing Date, (C)
an amount payable in cash to Seller on the Closing Date equal to the sum of
the Seller's accounts receivable in respect of services or merchandise
provided by the System, less the amount of Seller's liabilities for Customer
deposits for the System and less the amount of Seller's deferred revenues for
the System, (for the purposes of this calculation, the amount of accounts
receivables, customer deposits and deferred revenue shall be taken from
Seller's accounting records as of the day before the Closing Date (the
"Closing Balance Sheet"), (D) $50,0000 payable to Seller at Closing (the
"Deposit") which amount has been deposited by Purchaser with Nations Bank of
Texas, N.A., (the "Escrow Agent") as a deposit in accordance with the terms
of that certain Depository Agreement of even date herewith, by and among the
parties herein (the "Deposit Escrow Agreement"), a copy of which is attached
hereto as EXHIBIT J, and (E) an amount payable in cash to Seller at the
Closing or a Purchase Prices reduction to be determined by the Seller's
Recurring Monthly Revenue (as hereinafter defined) for the last complete
month prior to the date of the Closing; provided that in the event Recurring
Monthly Revenue is less than $140,000, the Purchase Price shall be reduced by
$10,000 for each $1,000 under $140,000; and further provided that in the
event the Recurring Monthly Revenue exceeds $150,000, the Purchase Price
shall be increased by $10,000 for each $1,000 over $150,000. "Recurring
Monthly Revenue" shall be defined as total monthly operating revenue less net
equipment sales revenue.
For purposes of calculating the Purchase Price, the Seller's accounts
receivable shall be valued as follows: (A) 96% of face amount for accounts
receivable that, as of the Closing Date, are less than 30 days past due from
the date of billing; (B) 90% of face amount for accounts receivable
3
that, as of the Closing Date, are 30 days or more and less than 60 days past
due from the date of billing; (C) 30% of face amount for accounts
receivable that, as of the Closing Date, are 60 days or more and less then 90
days past due from the date of billing; and (D) 5% of face amount for
accounts receivable that, as of the Closing Date, are 90 days or more past
due from the date of billing. Notwithstanding the foregoing, any accounts
receivable in respect of any customers that opened new accounts with the
Seller within 30 days immediately prior to the Closing Date shall be valued
at 80% of the face amount for such accounts receivable.
Notwithstanding the foregoing, to the extent that any accounts receivable of
any Seller are in dispute with the obligor or are known by the Seller or
either Partner to be noncollectible at the time of Closing, no value shall be
assigned to Purchaser. In addition, the parties hereto acknowledge and agree
that no amount shall be paid by the Purchaser for accounts receivable
relating to services to be performed, or goods sold, by the Purchaser after
the Closing Date. The Purchase Price shall be paid by certified bank check or
wire transfer of immediately available funds.
1.5 CLOSING.
(a) CLOSING DATE. The closing of the transactions contemplated
hereby (the "Closing") shall take place at the offices of the Purchaser
located at 0000 XXX Xxxxxxx, Xxxxxx, Xxxxx 00000 at 9:00 a.m., local time,
on the last day of the month in which all Federal, state, and local
regulatory approvals for the transactions contemplated hereby are received by
Final Order (as hereinafter defined) or such other location as may be agreed
upon by Seller and Purchaser. The date on which the Closing actually occurs
is referred to herein as the "Closing Date".
(b) DELIVERY AND PAYMENT. At the Closing, (i) the Seller shall
execute and deliver to the Purchaser a xxxx of sale and assignment with
respect to the Transferred Assets substantially in the form attached hereto
as EXHIBIT A (the "Xxxx of Sale"), and such other bills of sale, assignments,
certificates of title, endorsements, and other instruments of conveyance as
may be necessary to transfer the Transferred Assets to the Purchaser, and
(ii) the Purchaser shall (A) execute and deliver to the Seller an assumption
agreement with respect to the Assumed Liabilities substantially in the form
attached hereto as EXHIBIT B (the "Assumption Agreement"), (B) deliver to the
Seller by wire transfer the amount of the cash portion of the Purchase Price
to be paid on the Closing Date as provided in Section 1.4 (b); 1.4(c) and 1.4
(e) hereof, and (C) deliver to the Escrow Agent by wire transfer the
Indemnification Funds in accordance with the terms of the Indemnification
Escrow Agreement, a copy of which is attached hereto as Exhibit I; and (iii)
the Escrow Agent shall deliver the Deposit ($50,000) to the Seller by wire
transfer and the interest accrued thereon to the Purchaser.
1.6 DEPOSIT ESCROW AGREEMENT. Pursuant to the Deposit Escrow
Agreement, substantially in the form of EXHIBIT J, attached hereto, the
Purchaser will deliver the Deposit to the Escrow Agent on the date of
execution hereof. After the Sellers have executed and delivered the Seller's
Closing Certificate (as defined in Section 6.1 (a)) to Purchaser and ProNet
and
4
ProNet and Purchaser have executed and delivered the Purchaser's Closing
Certificate (as defined in Section 6.2 (a)) to Seller, Purchaser, ProNet and
Sellers shall execute the written instructions in the form of Exhibit B-1 and
deliver Exhibit B-1 to the Escrow Agent instructing the Escrow Agent to
deliver the Deposit to Sellers and the interest accrued thereof to the
Purchaser at the Closing in accordance with Section 1.4 of this Agreement.
If this Agreement is terminated prior to Closing pursuant to Section 7.1
(b), then the Deposit, including all accrued interest thereon, shall be paid
to Seller; and if this Agreement is terminated prior to Closing pursuant to
Section 7.1 (c), then the Deposit, including all accrued interest thereon,
shall be paid to Purchaser.
1.7. INDEMNIFICATION ESCROW AGREEMENT. Prior to or at the Closing,
Purchaser, Sellers, and the Escrow Agent shall enter into an Indemnification
Escrow Agreement (herein so called) substantially in the form of EXHIBIT I,
attached hereto, whereby Buyer and Sellers shall agree that the
Indemnification Funds shall be deposited on the Closing Date into and held
in escrow under and pursuant to the Indemnification Escrow Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND PRONET
The Purchaser and ProNet hereby represent and warrant to the Seller and
the Partners as follows (with the understanding that the Seller and the
Partners are relying materially on each such representation and warranty in
entering into and performing this Agreement):
2.1 DUE ORGANIZATION. The Purchaser and ProNet are corporations duly
organized, validly existing, and in good standing under the laws of the State
of Delaware and have full corporate power and corporate authority to own or
lease their properties and to carry on their businesses as, and in the places
where, such properties are owned or leased and such businesses are conducted.
2.2 DUE AUTHORIZATION. The Purchaser and ProNet have full corporate
power and corporate authority to enter into and perform their obligations
under this Agreement and each agreement, document, and instrument required to
be executed by the Purchaser and ProNet in accordance herewith. The
execution, delivery and performance of this Agreement and any other
agreements required to be executed by Purchaser and ProNet have been duly
authorized. This Agreement and the other agreements, documents, and
instruments required to be executed and delivered by the Purchaser and ProNet
in accordance herewith have been, or by the Closing shall have been, duly and
validly executed and delivered by the Purchaser and ProNet and constitute,
valid and binding obligations of the Purchaser and ProNet enforceable in
accordance with their respective terms, except that (a) such enforcement may
be subject to applicable bankruptcy, insolvency, fraudulent transfer, or
other laws, now or hereafter in effect, affecting creditors' rights
generally, and (b) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses
(including commercial reasonableness, good faith, and
5
fair dealing) and to the discretion of the court before which any proceeding
therefor may be brought.
2.3 FUNDS. As of the date of this Agreement, the Purchaser has access
to sufficient funds or has obtained commitments from a reputable financial
institution to enable it to obtain such funds as are needed to pay the
Purchase Price.
2.4 CONFLICTS. Except as set forth on Schedule 2.4, neither the
execution, delivery, nor performance of this Agreement or any other
agreement, document or instrument to be executed by Purchaser and/or ProNet
in connection herewith shall (a) violate any Federal, state, county, or local
law, rule, or regulation applicable to the Purchaser or ProNet, or (b)
violate, conflict or constitute a default of any provision of the Certificate
of Incorporation or Bylaws of Purchaser or ProNet.
2.5 CONSENTS. Set forth on Schedule 2.5 attached hereto is a complete
list of all actions, consents, or approvals of, or filings with, any
governmental authorities or third parties required in connection with the
execution, delivery, or performance of this agreement, document, or other
instrument to be executed in connection herewith by Purchaser and ProNet.
2.6 BROKERS AND FINDERS. Purchaser and ProNet have not employed any
broker, finder, sales agent or investment banker or incurred any liability to
such in connection with the execution, delivery, or performance of this
Agreement or the transactions contemplated hereby.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE PARTNERS
The Seller and the Partners hereby jointly and severally represent and
warrant to the Purchaser and ProNet as follows (with the understanding that
the Purchaser and ProNet are relying materially on each such representation
and warranty in entering into and performing this Agreement):
3.1 DUE ORGANIZATION; OWNERSHIP. The Seller is a general partnership
duly organized and validly existing, under the laws of the State of Florida
and has full power and authority to own or lease its properties and to carry
on its businesses as, and in the places where, such properties are owned or
leased and such businesses are conducted. The Seller is qualified to do
business in the states set forth on SCHEDULE 3.1 attached hereto, which
states represent every jurisdiction where such qualification is required. No
other jurisdiction has asserted a claim that the Seller is required to
qualify to do business as a foreign corporation in such jurisdiction. All of
the partnership interest in the Seller are owned of record and beneficially
as set forth on SCHEDULE 3.1 attached hereto. There are no authorized or
outstanding warrants, options, or rights of any
6
kind to acquire from the Seller or the Partners any equity or debt securities
of the Seller or securities convertible into or exchangeable for equity or
debt securities of the Seller.
3.2 DUE AUTHORIZATION. The Seller has full power and authority to
enter into and perform its obligations under this Agreement and each
agreement, document, and instrument required to be executed by the Seller in
accordance herewith. The execution, delivery, and performance of this
Agreement and any agreements, documents, and instruments required to be
executed by the Seller have been duly authorized by the Partners. This
Agreement and the agreements, documents, and instruments required to be
executed and delivered by the Seller or the Partners in accordance herewith
have been duly and validly executed and delivered by the Seller and/or the
Partners and constitute valid and binding obligations of the Seller and/or
the Partners enforceable in accordance with their respective terms, except
that (a) such enforcement may be subject to applicable bankruptcy,
insolvency, fraudulent transfer, or other laws, now or hereafter in effect,
affecting creditors' rights generally, and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses (including commercial reasonableness, good faith, and
fair dealing) and to the discretion of the court before which any proceeding
therefor may be brought.
3.3 CONFLICTS. Except as set forth on SCHEDULE 3.3, neither the
execution, delivery, nor performance of this Agreement or any other
agreement, document, or instrument to be executed by the Seller and/or the
Partners in connection herewith shall (a) violate any Federal, state, county,
or local law, rule, or regulation applicable to the Seller or the Partners or
their properties, (b) violate or conflict with, or permit the cancellation
of, any agreement to which the Seller or the Partners are a party, or by
which it, or their properties are bound, or result in the creation of any
lien, security interest, charge, or encumbrance upon any of such properties,
(c) result in the acceleration of the maturity of any indebtedness of, or
indebtedness secured by any property or other assets of, the Seller or the
Partners, or (d) violate or conflict with any provision of the partnership
agreement of the Seller.
3.4 CONSENTS. Set forth on SCHEDULE 3.4 attached hereto is a complete
list of all actions, consents, or approvals of, or filings with, any
governmental authorities or third parties required in connection with the
execution, delivery, or performance of this Agreement or any agreement,
document, or other instrument to be executed in connection herewith by any of
the Partners or the Seller.
3.5 FINANCIAL STATEMENTS. [FINANCIAL STATEMENTS TO BE CONFIRMED] The
Seller has delivered to the Purchaser (a) the audited balance sheet and
income statement of Seller through December 31, 1994, (the "1994 Financial
Statements"), (b) balance sheet and income statement of Seller through July
31, 1995 (the "Interim Financial Statements and together with the 1994
Financial Statements, the "Financial Statements"), and (c) a list of the
Transferred Assets together with the book value of each such Transferred
Asset as of September 30, 1995, which list is set forth on SCHEDULE 3.5(a)
attached hereto (the "September Asset List"). The Financial Statements have
been prepared in accordance with generally accepted accounting principles
7
applied on a consistent basis throughout the periods indicated (except, with
respect to the Interim Financial Statements, for the absence of footnotes,
and subject to normal year-end adjustments and accruals required to be made
in the ordinary course of business consistent with past practices) and fairly
present the financial position and, results of operations, of the Seller as
of the indicated dates and for the indicated periods. The September Asset
List has been prepared in accordance with and is otherwise consistent with
the books and records of the Seller, presents fairly and accurately the book
value of each of the Transferred Assets, and has been prepared in accordance
with generally accepted accounting principles as used in the preparation of
Financial Statements.
3.6 CONDUCT OF BUSINESS; CERTAIN ACTIONS. Except as set forth on
SCHEDULE 3.6 attached hereto, since July 31, 1995, the Seller has conducted
its business and operations in the ordinary course and consistent with its
past practices and has not (a) increased the compensation of any of the
directors, officers, or key employees of the System or, except for wage and
salary increases made in the ordinary course of business and consistent with
the past practices of the Seller, increased the compensation of any other
employees of the System, (b) except as set forth in SCHEDULE 3.6 made any
capital expenditures exceeding $10,000 individually or $25,000 in the
aggregate, (c) sold any asset (or any group of related assets) used in the
operation of the System in any transaction (or series of related
transactions) in which the purchase price for such asset (or group of related
assets) exceeded $5,000, (d) discharged or satisfied any lien or encumbrance
or paid any obligation or liability, absolute or contingent, other than
current liabilities incurred and paid in the ordinary course of business, (e)
made or guaranteed any loans or advances to any party whatsoever, (f)
suffered or permitted any lien, security interest, claim, charge, or other
encumbrance to arise or be granted or created against or upon any of the
Transferred Assets, (g) canceled, waived, or released any debts, rights, or
claims of the System against third parties, (h) made any change in the method
of accounting of the Seller, (i) made any investment or commitment therefor
in any person, business, corporation, limited liability company, association,
partnership, joint venture, trust, or other entity, (j) except as set forth
on Schedule 3.6 made, entered into, amended, or terminated any written
employment contract or created, made, amended, or terminated any bonus, stock
option, pension, retirement, profit sharing, or other employee benefit plan
or arrangement, or withdrawn from any "multi-employer plan" (as defined in
Section 414(f) of the Internal Revenue Code of 1986, as amended (the "Code"))
so as to create any liability under Article IV of ERISA (as hereinafter
defined) to any entity, (k) amended, renewed, or experienced a termination of
any FCC license related to the conduct of the System to which the Seller is
a party, (l) entered into any other material transactions relating to the
System except in the ordinary course of business, (m) suffered any material
damage, destruction, or loss (whether or not covered by insurance) to any of
the Transferred Assets, (n) experienced any strike, slowdown, or demand for
recognition by a labor organization by or with respect to any of the
employees of the System, or (o) experienced or effected any shutdown,
slow-down, or cessation of any operations conducted by, or constituting part
of, the System.
3.7 TITLE. The Seller does not own or lease any assets or property
used in connection with or necessary for the operation of the System other
than the Transferred Assets and the Excluded Assets. Except as set forth in
SCHEDULE 3.7 attached hereto, the Seller has good and
8
indefeasible title to all of the Transferred Assets. Except as set forth on
SCHEDULE 3.7 attached hereto, the Transferred Assets are free and clear of
all liens (including any liens for Taxes (as defined in Section 3.16 hereof),
security interests, claims, rights of another, and encumbrances. Upon
consummation of the transactions contemplated hereby, the Purchaser shall
acquire good and indefeasible title to the Transferred Assets, free and clear
of all liens, security interests, claims, rights of another, and
encumbrances. The tangible Transferred Assets listed on ANNEX 1 to SCHEDULE
1.1 are in good operating condition and repair, normal wear and tear
excepted, and are free from material defects. The operation of the System in
the manner in which it is now and has been operated does not violate any
material zoning ordinances, material municipal regulations, or other
material rules, regulations, or laws. Except as set forth in SCHEDULE 3.7,
no covenants, easements, rights-of-way, or regulations of record impair the
uses of the Transferred Assets for the purposes for which they are now
operated. There are no other parties in possession of any portion of the
Transferred Assets. There are no pending or threatened condemnation or
similar proceedings or assessments affecting the Transferred Assets.
3.8 PAGERS. ANNEX 1 to SCHEDULE 1.1 includes a true and complete list
of the number and type of pagers in service in the System as of September 30,
1995. In the ordinary course of business, Seller requests that customers
execute valid and binding lease and/or service agreements with the Seller or
agents or resellers. The Seller and the Partners do not know of any current
account or accounts totalling in the aggregate more than 600 pagers in
service who intend to discontinue the use of such service for any reason
including, but not limited to, the consummation of the transactions
contemplated herein. As used herein, "lease" means, with respect to any
pager, provision of communications common carriage and the rental or lease of
subscriber equipment to the customer by the Seller or its agents or resellers
to permit the customer to utilize such service. The rates charged to
subscribers for each class of service and copies of all applicable tariffs
filed with governmental agencies regulating the rates to be charged to
subscribers of the System are all contained in SCHEDULE 3.8.
3.9 LICENSES AND PERMITS. Set forth on ANNEX 7 to SCHEDULE 1.1
attached hereto is a list of all material federal, state, county, and local
governmental licenses, authorizations, certificates, permits, and orders held
or applied for by the Seller in connection with or related to the operation
of the System (collectively, the "Licenses"). Except as set forth on
SCHEDULE 3.9, the Seller has complied in all material respects and is in
material compliance with the terms and conditions of all Licenses, and no
violation of any such Licenses or the laws or rules governing the issuance or
continued validity thereof, has occurred which would materially impair
Purchaser's ability to operate the System. Other than the consents required
to be obtained in connection with this Agreement (which consents are set
forth on SCHEDULE 3.4 hereto), no additional license, authorization,
certificate, permit, or order is required from any Federal, state, county, or
local governmental agency or body thereof in connection with the operation of
the System by the Seller or the Purchaser or the ownership by the Seller or
the Purchaser or the transfer of the Transferred Assets by the Seller to the
Purchaser. No claim has been made by any governmental authority to the
effect that any license, authorization, certificate, permit, or order in
9
addition to those listed on ANNEX 7 to SCHEDULE 1.1 is necessary in respect
of the operation of the System.
3.10 INTELLECTUAL RIGHTS. Attached hereto as SCHEDULE 3.10 is a list
and description of all patents, trademarks, servicemarks, tradenames, and
copyrights and applications therefor related to the System and owned by or
registered in the name of the Seller or in which the Seller has any right,
license, or interest. Except as disclosed on SCHEDULED 3.10, the Seller is
not a party to any license agreements whether written or oral, either as
licensor or licensee, with respect to any patents, trademarks, servicemarks,
tradenames, or copyrights or applications therefor. The Seller has good and
marketable title to or the right to use such patents, trademarks, service
marks, tradenames, and copyrights and all inventions, processes, designs,
formulae, trade secrets, and know-how necessary for the conduct of its
business, without the payment of any royalty or similar payment except as
disclosed on SCHEDULE 3.10. The Seller is not infringing any patent,
trademark, servicemark, tradename, or copyright of others.
3.11 COMPLIANCE WITH LAWS. The Seller has complied in all material
respects, and is in compliance in all material respects, with all federal,
state, county, and local laws, regulations, and orders that are applicable to
the Seller's business including, but not limited to, the rules and
regulations of the Federal Communications Commission (the "FCC") and the
Federal Aviation Administration (the "FAA") and the states and municipalities
in which the System is located, and has filed with the proper authorities all
statements and reports required by the laws, regulations, and orders to which
the Seller or its properties or operations are subject. The Seller and the
Partners represent and warrant that they have complied with Seller's and
Partners' obligations in all material respects and, prior to the Closing,
will comply in all material respects with, all rules, regulations, policies,
precedents, and orders of the FCC and the FAA with respect to marking,
lighting, notification, and approval of each and every tower used in the
Seller's business. No claim has been made by any governmental authority (and,
to the best knowledge of the Seller and the Partners, no such claim is
anticipated) to the effect that the business conducted by the Seller fails to
comply, in any material respect, with any law, rule, regulation, or
ordinance. To the best of the Seller's and the Partners' knowledge, the
Seller has complied with all laws, rules, regulations, ordinances, and orders
related to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, handling, presence, emission, discharge,
release, or threatened release into or on the air, land, surface, water,
groundwater, personal property, or structures, wherever located, of any
contaminants, hazardous materials, hazardous or toxic substances, or wastes
as defined under any federal, state, or local laws, regulations, or
ordinances.
3.12 INSURANCE. Attached hereto as SCHEDULE 3.12 is a list of all
current policies of fire, liability, business interruption, and other forms
of insurance and all fidelity bonds held by or applicable to the Seller,
which schedule sets forth in respect of each such policy the policy name,
policy number, carrier, term, type of coverage, deductible amount or
self-insured retention amount, limits of coverage, and annual premium.
Except as set forth in SCHEDULE 3.12 attached hereto, no event relating to
the Seller has occurred which is likely to result in any prospective upward
adjustment in such premiums. The insurance currently held by the Seller is
in such
10
amounts and is of such types and scope as is customary in the industry in
which the Seller is engaged. Excluding insurance policies which have expired
and been replaced, no insurance policy of the Seller has been cancelled
within the last three years, and no threat has been made to cancel any
insurance policy of the Seller within such period.
3.13 ERISA PLANS. The Seller has no employee benefit plans subject to
the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
3.14 CONTRACTS AND AGREEMENTS. The contracts and agreements listed and
described in SCHEDULE 1.1 and SCHEDULE 1.2 attached hereto constitute all of
the material written or oral contracts, commitments, leases, and other
agreements (including, without limitation, promissory notes, loan agreements,
and other evidences of indebtedness but excluding rental agreements and
agreements with resellers) to which the Seller is a party or by which the
Seller or its properties are bound with respect to which the obligations of
or the benefits to be received by the Seller from any single agreement could
reasonably be expected to have a value in excess of $10,000 in any
consecutive 12 month period (each a "Material Agreement"). The Seller has
also furnished to the Purchaser the Seller's standard form rental agreement
and agreement with resellers used in the ordinary course of the Seller's
business. The Seller is not a lessor under any rental agreement or reseller
agreement that varies from such standard form agreement in any material
respect. The Seller and the Partners afforded to the Purchaser and the
Purchaser's officers, attorneys, and other representatives the opportunity to
review complete and correct copies of all of the Material Agreements. The
Seller is not and, to the best knowledge of the Seller and the Partners, no
other party thereto is in default (and no event has occurred which, with the
passage of time or the giving of notice, or both, would constitute a default)
under any Material Agreements, and the Seller has not waived any right under
any Material Agreements. Neither the Seller nor the Partners has received
any notice of default or termination under any Material Agreements and,
except for the assignment of the Assumed Contracts to the Purchaser pursuant
to this Agreement, the Seller has not assigned or otherwise transferred any
rights under any Material Agreements. None of the Material Agreements are
leases in connection with which an election was made under Section 168(f)(8)
of the Code.
3.15 CLAIMS AND PROCEEDINGS. Attached hereto as SCHEDULE 3.15 is a list
and description of all claims, actions, suits, proceedings, and
investigations pending or, to the best knowledge of the Seller and the
Partners, threatened against or affecting the Seller or any of its properties
or assets, at law or in equity, or before or by any court, municipal or other
governmental department, commission, board, agency, or instrumentality.
Except as set forth on SCHEDULE 3.15 attached hereto, none of such claims,
actions, suits, proceedings, or investigations will result in any liability
or loss to the Seller which (individually or in the aggregate) is material to
the Seller, and the Seller has not been, and the Seller is not now, subject
to any order, judgment, decree, stipulation, or consent of any court,
governmental body, or agency. No inquiry, action, or proceeding has been
asserted, instituted, or, to the best knowledge of the Seller and the
Partners, threatened to restrain or prohibit the carrying out of the
transactions contemplated by this Agreement or to challenge the validity of
such transactions or any part thereof or seeking damages on account thereof.
To
11
the best knowledge of the Seller and the Partners, there is no basis for any
such claim or action or any other claims or actions which would, or could
reasonably be expected to (individually or in the aggregate), have a material
adverse effect on the business, operations, or financial condition or
prospects of the Seller or the System or result in a material liability of
the Seller.
3.16 TAXES. To the best knowledge of the Seller and the Partners, all
Federal, foreign, state, county, and local income, gross receipts, excise,
property, ad valorem, transfer, franchise, capital stock, business and
occupation, license, sales, use, value-added, transfer, profits, gains,
mortgage recording, disability, employment, payroll, withholding, custom,
estimated, and other taxes, fees and assessments imposed by any governmental
entity, agency, or instrumentality (individually, a "Tax" and collectively,
"Taxes") returns, reports, statements, invoices, and declarations of
estimated tax (collectively, "Returns") which were required to be filed by
the Seller on or before the date hereof have been filed within the time and
in the manner provided by law, and all such Returns are true, correct, and
complete and accurately reflect the liabilities for Tax of the Seller. To the
best knowledge of the Seller and the Partners all Taxes, penalties, interest,
and other additions to Taxes which have become due pursuant to such Returns
have been adequately accrued in the Financial Statements of the Seller and,
to the extent the due date for payment of such Taxes has occurred prior to
the Closing date hereof, have been timely paid by the Seller. All annual or
other FCC regulatory fees arising from the operations of the Seller have been
paid. The Seller has not executed any presently effective waiver or
extension of any statute of limitations against assessments and collections
of Taxes, interest, penalties, or additions to Taxes or any extension of time
to file any Return. There are no pending or threatened claims, assessments,
notices, proposals to assess, deficiencies, or audits (collectively, "Seller
Tax Actions") with respect to any Taxes, penalties, interest, or additions to
Taxes owed or allegedly owed by the Seller. To the best knowledge of the
Seller and the Partners, there is no basis for any Seller Tax Actions. To
the best knowledge of the Seller and the Partners, there are no liens for
Taxes, penalties, interest, or additions to Taxes on any of the assets of the
Seller. To the best knowledge of the Seller and Partners, proper and
accurate amounts of any and all payroll and employment Taxes that are
required to be withheld have been withheld and remitted by the Seller from
and in respect of its Partners and its employees for all periods in full and
complete compliance with the tax withholding provisions of all applicable
laws and regulations.
3.17 PERSONNEL. Attached hereto as SCHEDULE 3.17 is a list of the names
and annual rates of compensation of the employees of the System whose annual
rates of compensation during the fiscal year ending December 31, 1994
(including base salary, bonuses, commissions, and incentive pay), exceeded or
are expected to exceed $20,000. SCHEDULE 3.17 attached hereto also
summarizes the bonus, profit sharing, percentage compensation, company
automobile, club membership, and other like benefits, if any, paid or payable
to such employees during such fiscal year and to the date hereof. SCHEDULE
3.17 attached hereto also contains a brief description of all material terms
of all employment agreements and confidentiality agreements to which the
Seller is a party and all severance benefits which any director, officer, or
employee of the Seller is or may be entitled to receive. The Seller has
delivered to the Purchaser accurate and complete copies of all such
employment agreements, confidentiality agreements, and all other agreements,
plans, and
12
other instruments relating to the System to which the Seller is a party and
under which any of its employees are entitled to receive benefits of any
nature. The employee relations of the Seller are good and there is no
pending or, to the best knowledge of the Seller and the Partners, threatened
labor dispute or union organization campaign involving the Seller. None of
the employees of the Seller is represented by any labor union or
organization. The Seller is in compliance with all federal and state laws
respecting employment and employment practices, terms and conditions of
employment, and wages and hours and is not engaged in any unfair labor
practices. There is no unfair labor practice claim against the Seller before
the National Labor Relations Board or any strike, labor dispute, work
slowdown, or work stoppage pending or, to the best knowledge of the Seller
and the Partners, threatened against or involving the Seller.
3.18 BUSINESS RELATIONS. Neither the Seller nor the Partners knows that
any account or accounts totalling in the aggregate more than 600 pagers in
service on the System will cease or otherwise refuse to do business with the
Purchaser after the Closing in the same manner as such business was
previously conducted with the Seller. The Seller has not received any notice
of any disruption (including delayed deliveries or allocations by suppliers)
in the availability of the materials or products used by the Seller in the
operation of the System.
3.19 BROKERS. Except for Seller's agreement with Xxxxxxx & Associates,
neither the Seller nor the Partners has caused any liability to be incurred
to any finder, broker, or sales agent in connection with the execution,
delivery, or performance of this Agreement or the transactions contemplated
hereby.
3.20 WARRANTIES. To the best knowledge of the Seller and the Partners,
no state of facts exists, or event has occurred, which may form the basis of
any claim against the Seller for liability on account of any express or
implied warranty to any third party related to the operation of the System.
3.21 ACCOUNTS RECEIVABLE. Except as set forth on SCHEDULE 3.21 attached
hereto, all of the accounts, notes, and loans receivable that have been
recorded on the books of the Seller are bona fide and represent amounts
validly due (net of reserves set forth on the Seller's Closing Balance
Sheet). All of such accounts, notes, and loans receivable are free and clear
of any security interests, liens, encumbrances, or other charges; none of
such accounts, notes, or loans receivable are subject to any offsets or
claims of offset; and none of the obligors of such accounts, notes, or loans
receivable have given notice that they will or may refuse to pay the full
amount thereof or any portion thereof.
3.22 CUSTOMERS AND SUPPLIERS. SCHEDULE 3.22 attached hereto contains a
true, correct, and complete list of the eight largest customers (measured in
dollar volume of revenue) of the System during the quarter ended June 30,
1995, and the year ended December 31, 1994.
13
3.23 INTEREST IN COMPETITORS, SUPPLIERS, AND CUSTOMERS. With the
exception of radio station WARO-FM, owned by Xxxxxx, to the best of their
knowledge none of the Seller, the Partners, nor any employee of the Seller,
or affiliate of any of the foregoing, has any ownership interest in any
competitor, supplier, or customer of the System or any property used in the
operation of the System.
3.24 INVENTORY. Except as set forth on SCHEDULE 3.24 attached hereto,
the inventories shown on the Financial Statements and SCHEDULE 1.1 consist of
(and the inventories of the Seller at the Closing will consist of) material
items (including pagers) in good operating condition except pagers in
inventory needing repair.
3.25 COMMISSION SALES CONTRACTS. Except as disclosed in SCHEDULE 3.25
attached hereto, the Seller does not employ or have any relationship with any
individual, corporation, partnership, or other entity whose compensation from
the Seller arising from the operation of the System is in whole or in part
determined on a commission basis.
3.26 REGULATORY CERTIFICATES. To the best knowledge of the Seller and
the Partners, there are no facts or circumstances concerning the Seller or
its operations that could cause the FCC or any other regulatory authority not
to issue to the Purchaser all regulatory certificates and approvals necessary
for the consummation of the transactions contemplated hereunder and for the
Purchaser's operation of the System and ownership of the Transferred Assets.
3.27 INFORMATION FURNISHED. The Seller and the Partners have made
available to the Purchaser and its officers, attorneys, accountants, lenders,
and representatives true and correct copies of all material agreements,
documents, and other items listed on the schedules to this Agreement and have
allowed inspection of all books and records of the Seller relating to the
Transferred Assets, and to the best knowledge of the Seller and the
Partners, neither this Agreement, nor the schedules hereto, nor any
information, agreements, or documents delivered to or made available to the
Purchaser or its officers, attorneys, accountants, lenders, and
representatives pursuant to this Agreement or otherwise contain any untrue
statement of a material fact or omit any material fact necessary to make the
statements herein or therein, as the case may be, not misleading.
ARTICLE 4
COVENANTS OF THE SELLER AND THE PARTNERS
4.1 INSPECTION. From the date hereof to the Closing, the Seller and
the Partners shall provide the Purchaser and the Purchaser's officers,
attorneys, accountants, representatives, and lenders complete access during
business hours to all books, records, tax returns, files, correspondence,
personnel, facilities, and properties of the Seller; provide the Purchaser
and its officers, attorneys, accountants, representatives, and lenders all
information and material
14
pertaining to the business and affairs of the Seller as the Purchaser may
deem necessary or appropriate. Any investigation by the Purchaser or its
officers, attorneys, accountants, representatives, or lenders shall not in
any manner affect the representations and warranties of the Seller and the
Partners contained herein.
4.2 COMPLIANCE. From the date hereof to the Closing, neither the Seller
nor the Partners shall take or fail to take any action which action or failure
to take such action shall cause the representations and warranties made by the
Seller or the Partners herein to be untrue or incorrect as of the Closing.
4.3 SATISFACTION OF ALL CONDITIONS PRECEDENT. From the date hereof to the
Closing, the Seller and the Partners shall use their best efforts to cause all
conditions precedent to the obligations of the Purchaser hereunder to be
satisfied by the Closing.
4.4 NO SOLICITATION. From the date hereof until 11:59 p.m. on March 31,
1996, or the date of termination of this Agreement, whichever is sooner, the
Seller and the Partners shall not, and shall use their best efforts to cause the
officers, directors, employees, and agents of the Seller not to, (a) solicit,
initiate or encourage the submission of proposals or offers from any person or
entity for, or enter into any agreement or arrangement relating to, any
acquisition or purchase of any or all of the Transferred Assets, or securities
of the Seller, or any merger, consolidation, or business combination with the
Seller or (b) participate in any negotiations regarding, or, except as required
by legal process, furnish to any other person or entity any information with
respect to, or otherwise cooperate in any way with, or assist or participate in,
facilitate, or encourage, any effort or attempt by any other person or entity to
do or seek any of the foregoing. In addition, until 11:59 p.m. on March 31,
1996, the Seller and the Partners agree that neither the Seller nor the Partners
will enter into any agreement or consummate any transaction that would interfere
with the consummation of the transactions contemplated by this Agreement. The
Seller and the Partners shall promptly notify the Purchaser if any such proposal
or offer described in this Section 4.4, or any inquiry or contact with any
person or entity with respect thereto, is made. The notification under this
Section 4.4 shall include the identity of the person or entity making such
acquisition, offer or other proposal, the terms thereof, and any other
information with respect thereto as the Purchaser may reasonably request.
4.5 NOTICE OF DEVELOPMENTS. From the date hereof to the Closing, the
Seller and the Partners shall, immediately upon the Seller or the Partners
becoming aware thereof, notify the Purchaser of any material problems or
developments with respect to the business, operations, assets, or prospects of
the Seller.
4.6 NOTICE OF BREACH. From the date hereof to the Closing, the Sellers
and the Partners shall, immediately upon the Seller or the Partners becoming
aware thereof, give detailed written notice to the Purchaser of the occurrence
of, or the impending or threatened occurrence of, any event that would cause or
constitute a breach, or would have caused or constituted a breach had such event
occurred or been known to the Seller or the Partners prior to the date of
15
this Agreement, of any of their respective covenants, agreements,
representations, or warranties contained or referred to herein or in any
document delivered in accordance with the terms hereof.
4.7 NOTICE OF LITIGATION. From the date hereof to the Closing, the Seller
and the Partners shall, immediately upon the Seller or the Partners becoming
aware thereof, notify the Purchaser of (a) any suit, action, or proceeding
(including, without limitation, any Tax Action or proceeding involving a labor
dispute or grievance or union recognition) to which the Seller becomes a party
or which is threatened against the Seller, (b) any order or decree or any
complaint praying for an order or decree restraining or enjoining the
consummation of this Agreement or the transactions contemplated hereby, or
(c) any notice from any tribunal of its intention to institute an investigation
into, or to institute a suit or proceeding to restrain or enjoin the
consummation of, this Agreement or the transactions contemplated hereby or to
nullify or render ineffective this Agreement or such transactions if
consummated.
4.8 CONTINUATION OF INSURANCE COVERAGE. From the date hereof to the
Closing, the Seller shall keep (and the Partners shall cause the Seller to keep)
in full force and effect insurance coverage for the Seller and its assets and
operations comparable in amount and scope to the coverage now maintained
covering the Seller and its assets and operations.
4.9 MAINTENANCE OF CREDIT TERMS. From the date hereof to the Closing, the
Seller shall continue (and the Partners shall cause the Seller to continue) to
effect sales and leases of its products in a manner consistent with past
practices.
4.10 UPDATING INFORMATION. As of the Closing, the Seller and the Partners
shall update all information set forth in the schedules to this Agreement.
4.11 INTERIM OPERATIONS OF THE SELLER.
(a) From the date hereof to the Closing, the Seller shall conduct
(and the Partners shall cause the Seller to conduct) its business only in
the ordinary course consistent with past practice, and the Seller shall
not, unless the Purchaser gives its prior written approval, (i) except in
the ordinary course of business, sell, pledge, dispose of, or encumber, or
agree to sell, pledge, dispose of, or encumber, any of the Transferred
Assets, or authorize any capital expenditure in excess of $10,000,
(excluding the sale or purchase of pagers in the ordinary course of
business) (ii) acquire (by merger, consolidation, or acquisition of stock
or assets) any corporation, partnership, or other business organization or
division thereof, or enter into any contract, agreement, commitment, or
arrangement with respect to any of the foregoing, (iii) incur any
indebtedness for borrowed money, issue any debt securities, or enter into
or modify any contract, agreement, commitment, or arrangement with respect
thereto, (iv) enter into, amend, or terminate any employment or consulting
agreement with any director, officer, consultant, or key employee of the
System, enter into, amend, or terminate any employment or consulting
agreement with any other person that relates to the operation of the System
otherwise than in the ordinary
16
course of business, take any action intended to increase or decrease the
number of persons employed by the System, or take any action with
respect to the grant or payment of any severance or termination pay
other than pursuant to policies or agreements of the Seller in effect on
the date hereof, (v) enter into, extend, or renew any lease for office
space used in connection with the operation of the System, except in the
ordinary course of business or (vi) except as required by law, adopt,
amend, or terminate any bonus, profit sharing, compensation, stock
option, pension, retirement, deferred compensation, employment, or other
employee benefit plan, agreement, trust, fund, or arrangement for the
benefit or welfare of any officer, employee, or sales representative of
the Seller, so as to create any liability under Article IV of ERISA to
any entity, (vii) grant any increase in compensation to any director,
officer, consultant, or key employee of the System, or (viii) grant any
increase in compensation to any other employee or consultant of the
System except in the ordinary course of business consistent with past
practice.
(b) From the date hereof to the Closing, the Seller shall use (and
the Partners shall cause the Seller to use) its best efforts to preserve
intact the business organization of the System, to keep available in all
material respects the services of its present officers and key employees,
to preserve intact the System's banking relationships and credit
facilities, to preserve the goodwill of those having business relationships
with the System, and to comply with all applicable laws.
4.12 FINANCIAL STATEMENTS. From the date hereof until the Closing, as soon
as available, and in any event within 45 days after the end of each calendar
month beginning with August 1995, the Seller shall furnish to the Purchaser a
balance sheet, and, statement of income of the System for such month prepared by
the Seller as an internal management control in accordance with the generally
accepted accounting principles and past practices applied in the preparation of
the Financial Statements (except for the absence of notes to such monthly
financial statements and subject to normal year-end adjustments and accruals
required to be made in the ordinary course of business that are not materially
adverse and are consistent with past practices). Such monthly financial
statements shall fairly present the financial position and results of operations
as of the indicated dates and for the indicated periods.
4.13 ASSIGNMENTS. From the date hereof until the Closing, the Seller and
the Partners shall use their best efforts to obtain all necessary consents to
the assignment by the Seller to the Purchaser of the Assumed Contracts, all of
which consents are described on SCHEDULE 3.4 hereto.
4.14 LICENSES. From the date hereof until the Closing, the Seller and the
Partners shall cooperate and assist fully in connection with Purchaser's efforts
to obtain, prior to the Closing Date, all consents and authorizations that may
be required in connection with the transfer of each of the Licenses listed on
ANNEX 7 to SCHEDULE 1.1 hereto.
17
ARTICLE 5
REGULATORY APPROVALS
With the full cooperation and assistance of the Seller and the Partners as
contemplated in Section 4.14 hereof, the Purchaser shall file with the FCC, the
FAA, (if applicable) and with all state regulatory agencies, commissions, or
other entities having jurisdiction over the System, applications for consent to
transfer to the Purchaser of the Licenses, or any similar state authorizations,
currently held by the Seller. The Purchaser shall use all commercially
reasonable efforts to file and prosecute such applications so as to permit the
Closing to occur. Approval of the aforementioned applications by the FCC, the
FAA, if applicable and by any applicable state agencies, commissions, or other
entities shall be by Final Order (and such approvals shall hereinafter
collectively be referred to as the "Final Order"). As used in this Agreement,
any such approval shall only be a Final Order if (a) the action of the subject
governmental agency approving the application has not been reversed, stayed,
enjoined, set aside, annulled, or suspended, (b) with respect to such approval,
no timely request for stay, motion, or petition for reconsideration or
rehearing, application, or request for review, or notice of appeal or other
judicial petition for review is pending, and (c) the time for filing any such
request, motion, petition, application, appeal, or notice, and for the entry of
orders staying, reconsidering, or reviewing the subject governmental agency's
own motion, shall have expired. Any action by a governmental authority
approving the applications subject to conditions (other than conditions
concerning notification of the consummation of this Agreement and other
conditions that the FCC routinely attaches to grants of this type) shall not be
deemed a Final Order until such time as the Purchaser notifies the Seller in
writing of its willingness to accept such conditions. In addition, if prior to
the date on which any such action would become a Final Order, the Purchaser does
not elect to accept any such conditions, the Purchaser shall have the right to
terminate this Agreement upon written notice to the Seller and the Shareholder
and shall be relieved of all obligations hereunder as provided in Article 7
hereof.
ARTICLE 6
CONDITIONS TO CLOSING
6.1 CONDITIONS TO OBLIGATIONS OF THE PURCHASER AND PRONET. The
obligations of the Purchaser and ProNet to consummate the transactions
contemplated hereby are subject to the fulfillment of each of the following
conditions:
(a) The representations and warranties of the Seller and the Partners
contained in this Agreement shall be true and correct in all material
respects at and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the Closing; the
Seller and the Partners shall have performed and complied in all material
respects with all agreements required by this Agreement to be performed or
18
complied with by the Seller and the Partners at or prior to the Closing;
and the Purchaser shall have received a certificate, dated as of the
Closing Date, signed by the Partners to the foregoing effects.
(b) No action or proceeding shall have been instituted or threatened
for the purpose or with the possible effect of enjoining or preventing the
consummation of this Agreement or seeking damages on account thereof.
(c) The Purchaser shall have received an opinion of K. Xxxxxxx
Xxxxxx, counsel for the Seller and the Partners, dated as of the Closing
Date, in the form attached hereto as EXHIBIT C.
(d) The Purchaser shall have received an opinion of Xxxxx Xxxxxxx,
Xxxxx, Xxxxxxx and Xxxxxxx, Washington, D.C., FCC counsel for the Seller
and the Partners, dated as of the Closing Date, in the form attached hereto
as EXHIBIT D.
(e) Prior to the Closing, there shall not have occurred any material
casualty or damage (whether or not insured) to any facility, property,
asset, or equipment used in connection with the operation of the System;
and the operation of the System shall have been conducted only in the
ordinary course consistent with past practices.
(f) The FCC and all applicable state regulatory agencies,
commissions, or other entities, by Final Order, shall have granted any
required consent to the sale, transfer, and assignment of the Transferred
Assets to the Purchaser and to the Purchaser's ownership and operation of
the Transferred Assets (except the Licenses set forth in SCHEDULE 1.2).
(g) As of the Closing Date, the Seller shall have at least 12,000
pagers in service in the System and the Purchaser shall have received a
certificate, dated as of the Closing Date, signed by the Partners setting
forth the number and type (as provided in Appendix A hereto) of pagers in
service in the System. "Pagers in service" shall be defined as a paging
unit that is in service on the Closing Date and has no account receivable
balance more than ninety (90) days old; provided that accounts set forth in
Schedule 6.1(g) will qualify if the account has an established pattern of
late, but regular payments.
(h) As of the Closing Date, the Seller's inventory shall have at
least $50,000 of useable (including pagers needing repair) pagers valued
pursuant to the value matrix as set forth in Schedule 1.1, and the
Purchaser shall have received a certificate, dated as of the Closing Date,
signed by the Partners to the foregoing effect.
19
(i) All material consents and approvals as noted on SCHEDULE 3.4
hereto shall have been obtained or waived.
(j) All necessary action (corporate or otherwise) shall have been
taken by the Seller to authorize, approve, and adopt this Agreement and the
consummation and performance of the transactions contemplated hereby, and
the Purchaser shall have received a certificate, dated as of the Closing
Date, signed by the Partners of the Seller to the foregoing effect.
(k) The Purchaser shall have received from the Seller a duly executed
Xxxx of Sale.
(l) Each of the Partners and the Seller shall have entered into a
Noncompetition Agreement (a "Noncompetition Agreement") with the Purchaser
substantially in the forms attached hereto as EXHIBITS E and F,
respectively.
(m) The Seller shall have duly executed and delivered to the
Purchaser the License Agreement substantially in the form attached hereto
as EXHIBIT G granting the Purchaser the right to the use of the name "Sun
Paging" in the area presently served by the System.
(n) The Seller shall have delivered to the Purchaser assignments of
the Real Estate Leases.
The decision of the Purchaser and ProNet to consummate the transactions
contemplated hereby without the satisfaction of any of the preceding conditions
shall not constitute a waiver of any of the Seller's or the Partners' respective
representations, warranties, covenants, or indemnities herein.
6.2 CONDITIONS TO OBLIGATIONS OF THE SELLER AND THE PARTNERS. The
obligations of the Seller and the Partners to consummate the transactions
contemplated hereby are subject to the fulfillment of the following conditions:
(a) The representations and warranties of the Purchaser and ProNet
contained in this Agreement shall be true and correct in all material
respects at and as of the Closing with the same effect as though such
representations and warranties had been made as of the Closing; all
agreements to be performed hereunder by the Purchaser and ProNet at or
prior to the Closing shall have been performed in all material respects;
and the Seller and the Partners shall have received a certificate, dated as
of the Closing Date, signed by an officer of the Purchaser and ProNet to
the foregoing effects.
20
(b) The Purchaser shall have delivered to the Seller by wire transfer
cash portion of the Purchase Price to be paid on the Closing Date in
accordance with and as specified in Section 1.4 (B), 1.4 (C) and 1.4(E)
hereof.
(c) Purchaser shall have deposited the Indemnification Funds with the
Escrow Agent.
(d) The Deposit shall have been paid to the Seller.
(e) The Purchaser shall have delivered to the Seller an Assumption
Agreement substantially in the form attached hereto as EXHIBIT B with
respect to the Assumed Liabilities.
The decision of the Seller and the Partners to consummate the transactions
contemplated hereby without the satisfaction of any of the preceding conditions
shall not constitute a waiver of any of the Purchaser's or ProNet's respective
representations, warranties, covenants, or indemnities herein.
ARTICLE 7
TERMINATION
7.1 TERMINATION. This Agreement may be terminated prior to the Closing by
(a) the mutual consent of the Purchaser and ProNet and the Seller, (b) the
Seller upon the failure of the Purchaser and ProNet to perform or comply in all
material respects with each of its covenants or agreements contained herein
prior to the Closing or if each representation or warranty of the Purchaser and
ProNet hereunder shall not have been true and correct as of the time at which
such representation or warranty was made, (c) the Purchaser and ProNet upon the
failure of the Seller or the Partners to perform or comply in all material
respects with each of its or his covenants or agreements contained herein prior
to the Closing or if each representation or warranty of the Seller or the
Partners hereunder shall not have been true and correct as of the time at which
such representation or warranty was made, (d) the Purchaser and ProNet in
accordance with the provisions of Article 5 hereof, and (e) the Seller or the
Purchaser and ProNet if the Closing does not occur by June 30, 1996 provided,
that no party may terminate this Agreement pursuant to (b), (c), or (d) above if
such party is, at the time of any such attempted termination, in breach of any
term hereof.
ARTICLE 8
INDEMNIFICATION
8.1 INDEMNIFICATION OF THE PURCHASER AND PRONET. The Seller and the
Partners jointly and severally agree to indemnify and hold harmless the
Purchaser and ProNet and each officer, director, employee, consultant,
stockholder, and affiliate of the Purchaser and ProNet (collectively, the
"Purchaser Indemnified Parties") from and against any and all damages, losses,
21
claims, liabilities (including, without limitation, those liabilities not
expressly assumed by the Purchaser as provided in Sections 1.3 and 9.2 hereof),
demands, charges, suits, penalties, costs, and expenses (including court costs
and reasonable attorneys' fees and expenses incurred in investigating and
preparing for any litigation or proceeding) (collectively, "Purchaser
Indemnified Costs") which any of the Indemnified Parties may sustain, or to
which any of the Indemnified Parties may be subjected, arising out of any breach
or default by the Seller or the Partners of or under any of the representations,
warranties, covenants, agreements, or other provisions of this Agreement or any
agreement or document executed in connection herewith.
8.2 INDEMNIFICATION OF THE SELLER AND THE PARTNERS. The Purchaser and
ProNet agree to indemnify and hold harmless the Seller, the Partners, and each
officer, director, employee, and consultant of the Seller (collectively, the
"Seller Indemnified Parties" and collectively with the Purchaser Indemnified
Parties, the "Indemnified Parties") from and against any and all damages,
losses, claims, liabilities, demands, charges, suits, penalties, costs, and
expenses (including court costs and reasonable attorney's fees and expenses
incurred in the investigating and preparing for any litigation or proceeding)
(collectively, the "Seller Indemnified Costs" and, collectively with the
Purchaser Indemnified Costs, the "Indemnified Costs") which any of the Seller
Indemnified Parties may sustain, or to which any of the Seller Indemnified
Parties may be subjected, arising out of any breach or default by the Purchaser
and ProNet under any of the representations, warranties, convenants, agreements,
or other provisions of this Agreement or any agreement or document executed in
connection herewith.
8.3 DEFENSE OF THIRD-PARTY CLAIMS. An Indemnified Party shall give prompt
written notice to any entity or person who is obligated to provide
indemnification hereunder (an "Indemnifying Party") of the commencement or
assertion of any action, proceeding, demand, or claim by a third party
(collectively, a "third-party action") in respect of which such Indemnified
Party shall seek indemnification hereunder. Such notice shall specify the
provision(s) of this Agreement from which such indemnification obligation
arises. Any failure so to notify an Indemnifying Party shall not relieve such
Indemnifying Party from any liability that it or he may have to such Indemnified
Party under this Article 8 unless the failure to give such notice materially and
adversely prejudices such Indemnifying Party; provided, however, such notice
must be provided within eighteen (18) months after the Closing Date. The
Indemnifying Parties shall have the right to assume control of the defense of,
settle, or otherwise dispose of such third-party action on such terms as they
deem appropriate; provided, however, that:
(a) The Indemnified Party shall be entitled, at his, her, or its own
expense, to participate in the defense of such third-party action
(provided, however, that the Indemnifying Parties shall pay the attorneys'
fees of the Indemnified Party if (i) the employment of separate counsel
shall have been authorized in writing by any such Indemnifying Party in
connection with the defense of such third-party action, (ii) the
Indemnifying Parties shall not have employed counsel reasonably
satisfactory to the Indemnified Party to have charge of such third-party
action, (iii) the Indemnified Party shall have reasonably concluded that
there may be defenses available to such Indemnified
22
Party that are different from or additional to those available to the
Indemnifying Parties, or (iv) the Indemnified Party's counsel shall have
advised the Indemnified Party in writing, with a copy to the
Indemnifying Parties, that there is a conflict of interest that could
make it inappropriate under applicable standards of professional conduct
to have common counsel);
(b) The Indemnifying Parties shall obtain the prior written approval
of the Indemnified Party before entering into or making any settlement,
compromise, admission, or acknowledgment of the validity of such third-
party action or any liability in respect thereof if, pursuant to or as a
result of such settlement, compromise, admission, or acknowledgment,
injunctive or other equitable relief would be imposed against the
Indemnified Party or if, in the opinion of the Indemnified Party, such
settlement, compromise, admission, or acknowledgment could have a material
adverse effect on its business or, in the case of an Indemnified Party who
is a natural person, on his or her assets or interests;
(c) No Indemnifying Party shall consent to the entry of any judgment
or enter into any settlement that does not include as an unconditional term
thereof the giving by each claimant or plaintiff to each Indemnified Party
of a release from all liability in respect of such third-party action; and
(d) The Indemnifying Parties shall not be entitled to control (but
shall be entitled to participate at their own expense in the defense of),
and the Indemnified Party shall be entitled to have sole control over, the
defense or settlement, compromise, admission, or acknowledgment of any
third-party action (i) as to which the Indemnifying Parties fail to assume
the defense within a reasonable length of time or (ii) to the extent the
third-party action seeks an order, injunction, or other equitable relief
against the Indemnified Party which, if successful, would materially
adversely affect the business, operations, assets, or financial condition
of the Indemnified Party; PROVIDED, HOWEVER, that the Indemnified Party
shall make no settlement, compromise, admission, or acknowledgment that
would give rise to liability on the part of any Indemnifying Party without
the prior written consent of such Indemnifying Party.
The parties hereto shall extend reasonable cooperation in connection with the
defense of any third-party action pursuant to this Article 8 and, in connection
therewith, shall furnish such records, information, and testimony and attend
such conferences, discovery proceedings, hearings, trials, and appeals as may be
reasonably requested.
8.4 DIRECT CLAIMS. In any case in which an Indemnified Party seeks
indemnification hereunder which is not subject to Section 8.2 hereof because no
third-party action is involved, the Indemnified Party shall give prompt written
notice to the Indemnifying Parties of any Indemnified Costs which such
Indemnified Party claims are subject to indemnification under the terms hereof.
Such notice shall specify the provision(s) of this Agreement from which such
23
indemnification obligation arises. The failure of the Indemnified Party to
exercise promptness in such notification shall not amount to a waiver of such
claim unless the resulting delay materially prejudices the position of the
Indemnifying Parties with respect to such claim; provided, however, such notice
must be provided within eighteen (18) months after the Closing date.
8.5 LIMITATIONS. Notwithstanding the foregoing, the Indemnified
Party shall be responsible for the first $25,000.00 of Indemnified Costs.
ARTICLE 9
MISCELLANEOUS
9.1 COLLATERAL AGREEMENTS, AMENDMENTS, AND WAIVERS. This Agreement
(together with the documents delivered in connection herewith) supersedes all
prior documents, understandings, and agreements, oral or written, relating to
this transaction including specifically that certain letter of intent dated July
26, 1995, among the parties hereto and constitutes the entire understanding
among the parties hereto with respect to the subject matter hereof. Any
modification or amendment to, or waiver of, any provision of this Agreement (or
any document delivered in connection herewith unless otherwise expressly
provided therein) may be made only by an instrument in writing executed by the
party against whom enforcement thereof is sought.
9.2 RISK OF LOSS - DAMAGE TO TRANSFERRED ASSETS. The parties hereto
hereby agree that the risk of loss or damage to any of the Transferred Assets
shall be upon the Seller prior to the Closing and upon the Purchaser thereafter.
9.3 PRORATIONS. All annual or periodic ad valorem fees, taxes, and
assessments and similar charges imposed by taxing authorities on the Transferred
Assets (collectively, "Property Taxes") shall be borne and paid (a) by the
Seller for all full tax years or periods ending before the Closing Date and for
that portion of any tax year or period ending on or after the Closing Date from
the date of commencement of such year or period to the date immediately
preceding the Closing Date and (b) by the Purchaser for all full tax years or
periods beginning on or after the Closing Date and for that portion of any tax
year or period ending on or after the Closing Date from and including the
Closing Date to the final date of such year or period, regardless of when or by
which party such Property Taxes are actually paid to the applicable taxing
authority. In addition, all rents and other lease charges, power and utility
charges, license or other fees, wages, salaries, and commissions, all Assumed
Contracts, prepaid items and expenses, and similar items to be allocated between
the Purchaser and the Seller shall be allocated between the Purchaser and the
Seller effective as of 12:01 a.m. on the Closing Date. Such allocations shall
be determined and payment accordingly made from one party to the other, as the
case may be, on the Closing Date to the extent they are known and agreed to by
the Purchaser and the Seller; otherwise such allocations shall be determined and
payment made (effective as of 12:01 a.m. on the Closing Date) on the date 30
days thereafter. If there shall be any dispute in regard to the amounts due
under
24
this Section 9.4, the same shall be determined by a nationally
recognized accounting firm selected by the Purchaser and Seller and any
such determination by such firm shall be binding and conclusive on the
parties hereto. The charges of such firm shall be shared equally by the
Purchaser and the Seller.
9.4 ALLOCATION OF PURCHASE PRICE. The parties hereto acknowledge that the
transactions contemplated hereby must be reported in accordance with Section
1060 of the Code. Accordingly, the parties shall report such transactions for
all purposes in accordance with the Purchase Price allocation set forth on
EXHIBIT H hereto. It is specifically understood that $50,000 of the Purchase
Price shall be allocated to the Noncompetition Agreements executed by the Seller
and the Partners.
9.5 RECORDS. At the Closing, the Seller and the Partners will turn over
and deliver to the Purchaser all files of the Seller relating to the Transferred
Assets and/or the System, including, without limitation, all copies and
originals of all Assumed Contracts, any and all operating manuals, third party
warranties, and like materials and data in the Seller's or the Partners'
possession relating to the design, construction, maintenance, and operation of
facilities, improvements, and equipment included in the Transferred Assets
and/or the System, and all appropriate books and records, accounting
information, and operating information and data, current and historical,
reasonably related to the Transferred Assets and/or the System; provided,
however, the Seller shall not be obligated to deliver the financial books and
records of the Partnership.
9.6 SELLER'S LIABILITIES. The Seller agrees to satisfy, pay and
extinguish all of the liabilities of the Seller outstanding as of the Closing
Date within 30 days following the Closing Date.
9.7 SUCCESSORS AND ASSIGNS. No rights or obligations of any party hereto
under this Agreement may be assigned (except that the Purchaser or ProNet may
assign its rights and obligations to any affiliate (as that term is defined in
Rule 144 under the Securities Act) of the Purchaser or ProNet or to any
successor entity to the Purchaser or ProNet whether pursuant to a sale of all or
substantially all of the Purchaser's or ProNet's assets, the merger,
consolidation, liquidation, or dissolution of the Purchaser or ProNet, or
otherwise). Any assignment, dissolution, or liquidation in violation of the
foregoing shall be null and void. Subject to the preceding sentences of this
Section 9.8, the provisions of this Agreement (and, unless otherwise expressly
provided therein, of any document delivered pursuant to this Agreement) shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, legal representatives, successors, and permitted assigns.
9.8 EXPENSES. Each of the parties hereto shall pay its or his own
respective costs and expenses incurred in connection with this Agreement. The
Seller and the Purchaser shall each pay one-half of any administrative,
application, and filing costs incurred in connection with regulatory approvals
described in Article 5 hereof.
25
9.9 INVALID PROVISIONS. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws, such provision
shall be fully severable from this Agreement, this Agreement shall be construed
and enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision, there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid, and enforceable.
9.10 WAIVER. No failure or delay on the part of any party in exercising
any right, power, or privilege hereunder or under any of the documents delivered
in connection with this Agreement shall operate as a waiver of such right,
power, or privilege; nor shall any single or partial exercise of any such right,
power, or privilege preclude any other or future exercise thereof or the
exercise of any other right, power, or privilege.
9.11 NOTICES. Any notices required or permitted to be given under this
Agreement (and, unless otherwise expressly provided therein, under any document
delivered in connection with this Agreement) shall be given in writing and shall
be deemed received (a) when personally delivered to the relevant party at such
party's address as set forth below, (b) when confirmed if delivered by
telefacsimile or similar device, or (c) if sent by mail, on the third day
following the date when deposited in the United States mail, certified or
registered mail, postage prepaid, to the relevant party at its or his address
indicated below:
If to the Purchaser: Contact Communications Inc.
0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Fax No: (000) 000-0000
With a copy to: ProNet Inc.
0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxx
Fax No: (000) 000-0000
26
If to the Seller Sun Paging Communications
% American Mobilphone, Inc.
000 Xxxxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Atten: Xx. Xxxx X. Xxxxxxx
Fax No: (000) 000-0000
With a copy to: Xxxxxx Wireless, Inc.
K. Xxxxxxx Xxxxxx, Esquire
Vice President & General Counsel
00000 Xxxxxxxxxx Xxxxx, Xxxxx #000
Xx. Xxxxx, Xxxxxxx 00000
Fax # (000) 000-0000
Each party may change its or his address for purposes of this Section 9.13 by
proper notice to the other parties.
9.12 SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND COVENANTS. Regardless of
any investigation at any time made by or on behalf of any party hereto or of any
information any party may have in respect thereof, all covenants, agreements,
representations, and warranties made hereunder or pursuant hereto or in
connection with the transactions contemplated hereby shall survive the Closing
for a period of eighteen (18) months from the Closing Date; provided, however,
all representations and warranties with respect to taxes shall survive for the
applicable statute of limitations..
9.13 PUBLIC ANNOUNCEMENT. No public announcement shall be made by any
party with respect to the transactions contemplated hereby without the approval
of the Purchaser unless otherwise required by law.
9.14 FURTHER ASSURANCES. From time to time hereafter, (a) at the request
of the Purchaser, but without further consideration, the Seller and the Partners
shall execute and deliver such other instruments of conveyance, assignment,
transfer, and delivery and take such other action as the Purchaser may
reasonably request in order more effectively to consummate the transactions
contemplated hereby, and (b) at the request of the Seller or the Partners, but
without further consideration, the Purchaser shall execute and deliver such
other certificates, statements, and documents, and take such other action as the
Seller or the Partners may reasonably request in order to more effectively
consummate the transactions contemplated hereby.
9.15 NO THIRD-PARTY BENEFICIARIES. Except for the Indemnified Parties not
a party to this Agreement, no person or entity not a party to this Agreement
shall be deemed to be a third-party beneficiary hereunder or entitled to any
rights hereunder.
27
9.16 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
9.17 HEADINGS. The headings, captions, and arrangements used in this
Agreement are, unless specified otherwise, for convenience only and shall not be
deemed to limit, amplify, or modify the terms of this Agreement or affect the
meaning hereof.
9.18 SECTIONS; EXHIBITS. All references to "Sections", "Subsections",
"Schedules", "Annexes", and "Exhibits" herein are, unless specifically indicated
otherwise, references to sections, subsections, schedules, annexes, and exhibits
of and to this Agreement. All schedules and exhibits attached hereto are made a
part hereof for all purposes, the same as set forth herein verbatim, it being
understood that if any exhibit attached hereto which is to be executed and
delivered contains blanks, the same shall be completed correctly and in
accordance with the terms and provisions contained and as contemplated herein
prior to or at the time of the execution and delivery thereof.
9.19 NUMBER AND GENDER OF WORDS. Whenever herein the singular number is
used, the same shall include the plural where appropriate, and words of any
gender shall include each other gender where appropriate.
9.22 SPECIFIC PERFORMANCE. The parties hereto acknowledge and agree that,
without limiting any other remedy available to the Purchaser at law or in
equity, the Purchaser shall be able to specifically enforce the terms of this
Agreement.
9.23 PRONET GUARANTEE. ProNet hereby agrees to guarantee the obligations
of the Purchaser as set forth in this Agreement.
28
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement in
one or more counterparts (all of which shall constitute one and the same
agreement) as of the day and year first above written.
CONTACT COMMUNICATIONS INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx, Chief Executive Officer
PRONET INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx, Chief Executive Officer
SUN PAGING COMMUNICATIONS
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
American Mobilphone Inc.
Managing Partner
Title: Xxxx X. Xxxxxxx
---------------------------
Vice Xxxxxxxxx
XXXXXX COMMUNICATIONS INCORPORATED
By: /s/ Xxxxxx XxXxxxxx
------------------------------
Title: Vice President-Treasurer
---------------------------
AMERICAN MOBILPHONE, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Xxxx X. Xxxxxxx
Title: Vice President
--------------------------
29
EXHIBIT A
XXXX OF SALE AND ASSIGNMENT
STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS )
THAT Sun Paging Communications, a Florida general partnership ("Grantor"),
in consideration of the payment by Contact Communications Inc., a Delaware
corporation ("Grantee"), of the consideration specified in the Purchase
Agreement (as hereinafter defined), the receipt and sufficiency of which are
hereby acknowledged, does hereby sell, convey, transfer, assign, and deliver
unto Grantee, pursuant to that certain Asset Purchase Agreement (the "Purchase
Agreement") dated as of _____________, 1995, by and among Grantor, Xxxxxx
Communications Incorporated, American Mobilphone, Inc., ProNet Inc., and
Grantee, all of Grantor's rights, titles, and interests in and to all of the
assets, properties, contracts, leases (including, but not limited to, all of
Grantor's interests as "tenant" or "lessee" under all real property leases), and
agreements which are used in operation of the System (as defined in the Purchase
Agreement), including, without limitation, the assets described on SCHEDULE 1
attached hereto but excluding the assets listed on SCHEDULE 2 hereto
(collectively, the "Transferred Assets").
TO HAVE AND TO HOLD the Transferred Assets unto Grantee and its successors
and assigns forever, and Grantor does hereby bind itself and its successors to
warrant and forever defend the title to the Transferred Assets unto Grantee, its
successors and assigns, against the claims and demands of all persons. The
Grantor hereby further warrants to Grantee that it is conveying to Grantee good
and indefeasible title to the Transferred Assets, free and clear of all liens,
mortgages, security interests, charges, or encumbrances of any kind or
character.
Grantor covenants and agrees, for the benefit of Grantee and its successors
and assigns, without further consideration, and whenever and as often as
required so to do by Grantee and its successors and assigns, to execute and
deliver to Grantee such other instruments of conveyance, transfer, and
assignment and take such other action as Grantee may require more fully and
effectively to transfer, assign, and convey to and vest in Grantee and its
successors and assigns, and to put Grantee and its successors and assigns in
actual possession and operating control of, the Transferred Assets.
Nothing in this Xxxx of Sale and Assignment, express or implied, is
intended or shall be construed to confer upon, or to give to, any person, firm,
corporation, or other entity other than the Grantor, the Grantee, and their
respective successors and assigns, any right or remedy under or by reason of
this Xxxx of Sale and Assignment or any term, covenant, or condition hereof, and
all the terms, covenants, conditions, promises, and agreements contained in this
Xxxx of Sale and Assignment shall be for the sole and exclusive benefit of the
Grantor, the Grantee, and their respective successors and assigns.
The terms and conditions of this Xxxx of Sale and Assignment shall be
governed and construed in accordance with the laws of the State of Texas.
In the event that this Xxxx of Sale and Assignment conflicts with any terms
contained in the Purchase Agreement, the Purchase Agreement shall control.
IN WITNESS WHEREOF, the undersigned has executed this Xxxx of Sale as of
this __ day of ________________, 1995.
SUN PAGING COMMUNICATIONS
By:
-------------------------------------
Title:
-----------------------------------
B-2
EXHIBIT B
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (the "Agreement") is made and entered into as of
this __ day of ____________, 1995, by and between Contact Communications Inc., a
Delaware corporation (the "Purchaser"), and Sun Paging Communications, a Florida
general partnership (the "Seller").
W I T N E S S E T H
WHEREAS, concurrently with the execution and delivery hereof, the Seller
has sold to the Purchaser substantially all of the assets and properties of the
Seller that are used in the operation of the Seller's Florida area radio paging
system pursuant to that certain Asset Purchase Agreement dated as of
_____________, 1995, by and among the Purchaser, ProNet Inc., Xxxxxx
Communications Incorporated and American Mobilphone Inc. (the "Purchase
Agreement"); and
WHEREAS, pursuant to the Purchase Agreement, the Purchaser has agreed to
assume certain liabilities and obligations of the Seller.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Purchaser hereby covenants and
agrees with the Seller as follows:
1. Effective as of the date hereof, the Purchaser hereby agrees to assume
and be solely responsible for the payment, performance, and discharge of all of
the Seller's obligations and liabilities under the contracts, agreements,
arrangements, leases, licenses, permits, and instruments listed on SCHEDULE 1
hereto , subject, however, to the terms and conditions of the Purchase
Agreement.
2. Except as specifically provided in this Agreement, the Purchaser shall
not be liable for and shall not assume any obligations or liabilities of the
Seller (whether known or unknown, matured or unmatured, or fixed or contingent)
not included within the Assumed Contracts, including, without limitation,
(a) any claims for workers compensation, (b) any foreign, federal, state,
county, or local taxes on income of the Seller whether arising before or after
the date hereof, any foreign, federal, state, county, or local taxes, fees, and
assessments of any kind of the Seller or for which the Seller has the obligation
to collect from any other party, including, without limitation, sales, use,
gross receipts, franchise, excise, payroll, including Social Security and
unemployment, value-added, withholding, and any other taxes, whether arising
before or after the date hereof, or any foreign, federal, state, county, or
local taxes, including, without limitation, sales, use, gross receipts and
value-added taxes, or any other fees, arising by reason of the
purchase and sale of the Transferred Assets (as defined in the Purchase
Agreement) by the Seller to Purchaser and the assumption of liabilities
pursuant hereto, including any such taxes, fees, and assessments related the
purchase and sale of the Transferred Assets and the assumption of liabilities
payable by, or assessed against, Purchaser, or otherwise, (c) any liability
for any violation by the Seller of any statutes, laws, regulations, or
ordinances of any federal, state, or local government, including, without
limitation, the failure to file or the improper filing of any and all tax
returns and other reports or the failure to timely pay any and all taxes,
fees, and assessments to any governmental unit, authority, or instrumentality
by the Seller, (d) any liability for any breach of contract, negligence, or
misconduct by the Seller or any of its agents, servants, or employees, (e)
any liability of the Seller arising out of or pursuant to the Purchase
Agreement (including, without limitation, any liability arising out of the
Seller's employee severance policy), (f) any liability of the Seller relating
to any litigation arising from any event, action, or omission, (g) any
liability of the Seller relating to employee benefit plans maintained by the
Seller, (h) any liability arising out of or incurred in respect of any
transaction of the Seller, (i) any liability of the Seller to its Partners,
whether in connection with the transactions contemplated by the Purchase
Agreement or any subsequent liquidation and dissolution of the Seller, or
otherwise, including, but not limited to, liabilities or obligations of the
Seller to make distributions to the Partners or distributions in liquidation.
3. The Purchaser and the Seller hereby agree to execute and deliver any
and all additional documents that the other may reasonably request in order to
more fully effect the agreements set forth in this Agreement.
4. The undertakings, covenants, and agreements set forth herein shall be
binding upon and inure to the benefit of the Purchaser and the Seller and their
respective successors and assigns.
5. In the event that this Assumption Agreement conflicts with any terms
contained in the Purchase Agreement, the Purchase Agreement shall control.
B-2
IN WITNESS WHEREOF, the Purchaser and the Seller have executed this
Agreement as of the date first written above.
CONTACT COMMUNICATIONS INC.
By:
--------------------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
SUN PAGING COMMUNICATIONS
By:
----------------------------------
Title:
-------------------------------
B-3
EXHIBIT C
---------
FORM OF
OPINION OF K. XXXXXXX XXXXXX
1. The Seller is a general partnership, duly organized, validly existing,
and in good standing under the laws of the State of Florida.
2. The Seller has full power and authority to execute and deliver the
Purchase Agreement, the Seller Non-Competition Agreement, the Xxxx of Sale and
the License Agreement (collectively, the "Seller Transaction Documents") and to
perform the obligations contemplated thereby. The execution and delivery by the
Seller of each of the Seller Transaction Documents has been duly authorized by
all necessary action on the part of the Seller. Each of the Seller Transaction
Documents has been duly executed and delivered by the Seller and constitutes the
legal, valid, and binding obligation of the Seller enforceable in accordance
with its terms.
3. The Partners have duly executed and delivered the Purchase Agreement
and the Noncompetition Agreements. The Purchase Agreement and the Partners
Noncompetition Agreements constitute the legal, valid, and binding obligation of
the Partners enforceable in accordance with their respective terms.
4. Neither the execution and delivery by the Seller of the Seller
Transaction Documents, nor the performance by the Seller of its obligations
thereunder violates or conflicts with, results in a breach of, or constitutes a
default under the Seller's partnership agreement., any law, any judgment,
decree, or order of any court or any other agency of government known to this
firm that is applicable to the Seller or the Seller's property, or any material
agreement known to this firm to which the Seller is a party or by which the
Seller's property is bound.
5. Neither the execution and delivery by the Partners of the Purchase
Agreement and the Noncompetition Agreements, nor the performance by the Partners
of their obligations thereunder, violates or conflicts with, results in a breach
of, or constitutes a default under any law, any judgment, decree, or order of
any court or any other agency of government known to this firm that is
applicable to the Shareholder or the Seller or their or its property, or any
material agreement known to this firm to which the Partners or the Seller is a
party, or by which their or its properties is bound.
6. No approvals or authorizations by, or filings or qualifications with,
any state, federal, or local agency, authority, or body are required in
connection with the execution, delivery, and performance of the Purchase
Agreement or any other agreements or documents executed and delivered pursuant
thereto by the Seller and/or the Partners, except such as have been duly
obtained or made.
7. To our knowledge after inquiry, there is no action, suit,
investigation, or proceeding that is pending or threatened against or affecting
the Seller or the Partners in any court
or before any governmental authority, arbitration board, or tribunal that (a)
involves any of the transactions contemplated by the Purchase Agreement or
(b) if decided adversely to the Seller or such Shareholder, would involve the
possibility of materially and adversely affecting the Transferred Assets.
8. To our knowledge after inquiry, there are no pending or threatened
condemnation or similar proceedings or assessments affecting the Transferred
Assets or any part thereof and there are no such proceedings or assessments
contemplated by any governmental authority.
9. To our knowledge after inquiry, neither the Seller nor the Shareholder
has entered into any agreement pursuant to which any other individual or entity
has obtained the right to acquire any or all of the Transferred Assets.
10. Upon the consummation by the Seller of the transactions contemplated
by the Purchase Agreement, the Purchaser shall have duly and validly acquired
all of the right, title, and interest in and to the Transferred Assets and the
Transferred Assets will have been conveyed by proper and enforceable instruments
of conveyance, and, to our knowledge after inquiry, all consents of third
parties necessary for such conveyance to be valid and enforceable by the
Purchaser against third parties will have been obtained.
11. To our knowledge after inquiry, the Seller does not currently sponsor
or contribute to, or have any contract or other obligation to sponsor or
contribute to, any employee benefit plan subject to ERISA.
EXHIBIT D
FORM OF
OPINION OF SELLER'S FCC COUNSEL
1. The Seller and the Partners have complied in all respects with, and
are not in violation in any respect of, the Communications Act of 1934, as
amended, and the rules, regulations, policies, precedents and orders promulgated
thereunder (collectively, the "Act"), by virtue of the licenses and
authorizations issued or granted to the Seller by the FCC, as listed in Annex 7
to Schedule 1.1 of the Agreement (the "Licenses"), except as listed in SCHEDULE
3.8 to the Agreement.
2. The Licenses, which constitute all licenses, orders and other
authorizations from the FCC which are necessary for the Seller's operation of
the System, were duly issued by the FCC to the Seller and have not been sold,
conveyed, pledged, assigned or transferred to any other party. There are no
liens, charges, encumbrances or adverse claims with respect to the Licenses.
All of the Licenses are in full force and effect and their grant to the Seller
is "final," I.E., no longer subject to administrative reconsideration or review
or to judicial review, whether on motion of the reviewing agency or otherwise.
No License is subject to any condition or requirement not generally imposed by
the FCC upon holders of authorizations in the same service. The Licenses were
properly and validly obtained by the Seller in compliance with the Act. No
party has valid grounds to contest the assignment of the Licenses as
contemplated by the Agreement. No event has occurred with respect to any of the
Licenses which permits, or after notice or lapse of time or both would permit,
revocation or termination thereof or would result in any impairment of the
rights of the holder of any License or the imposition of a forfeiture against
the Seller or the Partners or any subsequent holder with respect to their
operation of the System. The Seller and the Partners have received no pending
notice of violation with respect to any of the Licenses. All Licenses are
renewable by their terms, and the Licenses can be renewed without the need to
pay any amounts other than routine FCC fees. No state regulatory agencies
exercise any jurisdiction over the operation of the System.
3. The execution, delivery and performance of the Agreement by the
Purchaser, the Seller and the Partners will not violate, conflict with or result
in the breach of any term, condition or provision of, or require the consent of
any other party to, any judgment, order, writ, injunction, decree or award of
any court, arbitrator or governmental or regulatory official, body or authority
which is applicable to the Seller or the Partners or any of their assets by
virtue of the Licenses. All authorizations, approvals and consents of, and
registrations and filings with and notices to, the FCC required in connection
with the execution, delivery and performance of the Agreement (including the
assignment of the Licenses from Seller to Purchaser) by the Seller and the
Partners by virtue of the Licenses are in full force and effect and their grant
is "final," other than certain post-closing informational filings that may be
required by the Act (I.E., written notification to the FCC that the assignment
has, in fact, been completed).
4. The Seller has obtained all necessary clearances from the Federal
Aviation Administration ("FAA") for the construction of all radio towers
associated with the System. The Seller and the Partners have complied in all
respects with, and are not in violation in any respect of, all rules,
regulations, policies, precedents or orders of the FAA with respect to such
towers.
5. No judgments, decrees or orders have been issued by the FCC against
the Seller or the Partners in connection with the Licenses or the System. No
action, proceeding, inquiry, investigation, notice of apparent liability, order
of forfeiture, show cause order, license revocation proceeding, formal complaint
or informal complaint is currently pending or threatened by or before the FCC
regarding the Licenses or the Systems, or (insofar as it relates to the Licenses
or the Systems) regarding the Seller or the Partners, other than rulemaking
proceedings of general applicability pertaining to the paging industry. All
reports and other filings required under the Act with respect to the Licenses,
the System, or (insofar as they relate to the Licenses or the System) the Seller
have been made in a timely manner.
EXHIBIT E
---------
NONCOMPETITION AGREEMENT
------------------------
This Noncompetition Agreement (the "Agreement") is entered into as of
__________, 1995, between Contact Communications Inc., a Delaware corporation
(the "Company"), and Xxxxxx Communications Incorporated (the "Partner").
W I T N E S S E T H
-------------------
WHEREAS, concurrently herewith, Sun Paging Communications, a Florida
general partnership ("Sun Paging"), is selling, transferring, and conveying to
the Company, pursuant to that certain Asset Purchase Agreement (the "Purchase
Agreement") dated as of , 1995, by and among the Company, Sun Paging, and
the Partner, substantially all of the property and assets of Sun Paging that are
used in the conduct of Sun Paging's radio paging system business (such property,
assets, and business, including all affiliated networks, being hereinafter
collectively called the "System");
WHEREAS, the Partner has been affiliated with Xxxxx Paging for a number of
years and, as a principal shareholder and officer of Sun Paging, possesses
valuable knowledge about the business and operations of Sun Paging; and
WHEREAS, the Company has requested that the Partner enter into this
Agreement as an inducement to the Company to enter into and consummate the
transactions contemplated by the Purchase Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. CONSIDERATION. The Partner has entered into this Agreement and made
the covenants hereinafter set forth in order to induce the Company to consummate
the transactions contemplated by the Purchase Agreement.
2. CONFIDENTIAL INFORMATION. The Partner acknowledges that the
information, observations, and data obtained or possessed by him concerning the
business affairs of the System will be the property of the Company and not the
Partner. Therefore, the Partner agrees that he will not disclose to any person
or use for his own account any of such information, observations, or data unless
and to the extent that such information, observations, or data become generally
known to and available for use by the public otherwise than as a result of the
Partner's act or omission to act. The Partner agrees to deliver to the Company,
at any time the Company may
request, all memoranda, notes, plans, records, reports, and other documents
(and copies thereof) relating to the conduct of the System of which it may
then possess or have under its control.
3. NONCOMPETITION. The Partner agrees that it shall not, until 11:59
p.m. on the fifth (5th) anniversary of the date hereof:
a. directly or indirectly own, engage in, manage, operate, join,
control, or participate in the ownership, management, operation,
or control of, or be connected as a stockholder, director,
officer, employee, agent, partner, joint venturer, member,
beneficiary, or otherwise with, any corporation, limited
liability company, partnership, sole proprietorship, association,
business, trust, or other organization, entity or individual
which in any way competes with the Company in the sale or leasing
of pagers or paging services in the Florida Area (as hereinafter
defined); PROVIDED, HOWEVER, that the Partner may own, directly
or indirectly, securities of any entity traded on any national
securities exchange or listed on the National Association of
Securities Dealers Automated Quotation System if the Partner does
not, directly or indirectly, own 1% or more of any class of
equity securities, or securities convertible into or exercisable
or exchangeable for 1% or more of any class of equity securities,
of such entity;
b. aid, abet, or otherwise assist any individual, business or other
organization or entity in canvassing, soliciting, or accepting
any contracts for the sale or lease of pagers or paging services
in the Florida Area;
c. directly or indirectly request or advise any present or future
customers of the Company to cancel any contracts with the Company
or curtail their dealings with the Company;
d. directly or indirectly request or advise any present or future
service provider or financial resource of the System or the
Company to withdraw, curtail, or cancel the furnishing of such
service or resource to the Company;
e. directly or indirectly disclose or communicate to any other
person, firm, or corporation:
(1) the names of past, present, or future customers of the
Company; or
(2) any names of past, present, or future employees or other
knowledge of or relating to the Company; or
f. directly or indirectly induce or attempt to influence any
employee of the Company to terminate his or her employment.
As used herein, the "Florida Area" means that area described in the map attached
hereto as Schedule 1.
4. AMENDMENTS. This Agreement may be amended or modified from time to
time, but only by a written instrument executed by both parties hereto.
5. NOTICES. Any notices required or permitted hereunder shall be in
writing and shall be deemed given (a) when personally delivered, (b) when
confirmed if delivered by telefacsimile or similar device, or (c) when sent by
registered or certified mail, return receipt requested, addressed to the other
party at its or his address set forth below its or his signature to this
Agreement, or at such other address as it or he may specify in writing in
accordance with this Section 5.
6. ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties hereto respecting the subject matter hereof and supersedes all prior
discussions and understandings.
7. ASSIGNMENT; PARTIES BOUND. The Company may assign its rights and
obligations hereunder to any party. The Partners may not assign any of its
obligations hereunder. Any assignment in violation of the foregoing shall be
null and void. Subject to the foregoing, this Agreement shall be binding upon
the parties hereto and shall inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, legal representatives,
successors, and permitted assigns.
8. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Texas (regardless of the laws that might otherwise govern under
applicable Texas principles of conflicts of law) as to all matters, including
but not limited to, matters of validity, construction, effect, performance, and
remedies.
9. NON-WAIVER OF BREACH. A waiver by any party hereto of a particular
breach or default in connection with any provision of this Agreement shall not
be deemed a waiver of any subsequent default or breach of the same or any other
provision of this Agreement.
10. INVALID PROVISION. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws, such provision
shall be severable, and this Agreement shall be construed and enforced as if
such illegal, invalid, or unenforceable provision had never comprised a part of
this Agreement, and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by such illegal, invalid, or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid, or unenforceable provision, there shall be added
automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid, and enforceable.
11. HEADINGS. The headings in this Agreement are for purposes of
reference only and shall not be considered in construing this Agreement.
12. ATTORNEYS' FEES. If either party hereto brings any action, at law or
in equity, to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to recover from the other party hereto reasonable
attorneys' fees in addition to any other relief to which such party may be
entitled.
13. ENFORCEMENT OF COVENANTS. The Partner agrees that a violation on his
part of any covenant contained herein shall cause irreparable damage to the
Company and, consequently, the Partner further agrees that the Company shall be
entitled, as a matter of right, to an injunction restraining any further
violation of such covenant by the Partner. Such right to an injunction shall be
cumulative and in addition to all other remedies the Company may have,
including, but not limited to, recovery of damages.
14. In the event that this Noncompetition Agreement conflicts with any
terms contained in the Purchase Agreement, the Purchase Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
CONTACT COMMUNICATIONS INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address: 0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Fax No: (000) 000-0000
XXXXXX COMMUNICATIONS INCORPORATED
By
-----------------------------------
Title:
--------------------------------
Address:
------------------------------
---------------------------------------
---------------------------------------
EXHIBIT E-1
-----------
NONCOMPETITION AGREEMENT
------------------------
This Noncompetition Agreement (the "Agreement") is entered into as of
__________, 1995, between Contact Communications Inc., a Delaware corporation
(the "Company"), and American Mobilphone, Inc.(the "Partner").
W I T N E S S E T H
-------------------
WHEREAS, concurrently herewith, Sun Paging Communications, a Florida
general partnership ("Sun Paging"), is selling, transferring, and conveying to
the Company, pursuant to that certain Asset Purchase Agreement (the "Purchase
Agreement") dated as of , 1995, by and among the Company, Sun Paging, and
the Partner, substantially all of the property and assets of Sun Paging that are
used in the conduct of Sun Paging's radio paging system business (such property,
assets, and business, including all affiliated networks, being hereinafter
collectively called the "System");
WHEREAS, the Partner has been affiliated with Xxxxx Paging for a number of
years and, as a principal shareholder and officer of Sun Paging, possesses
valuable knowledge about the business and operations of Sun Paging; and
WHEREAS, the Company has requested that the Partner enter into this
Agreement as an inducement to the Company to enter into and consummate the
transactions contemplated by the Purchase Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. CONSIDERATION. The Partner has entered into this Agreement and made
the covenants hereinafter set forth in order to induce the Company to consummate
the transactions contemplated by the Purchase Agreement.
2. CONFIDENTIAL INFORMATION. The Partner acknowledges that the
information, observations, and data obtained or possessed by him concerning the
business affairs of the System will be the property of the Company and not the
Partner. Therefore, the Partner agrees that he
will not disclose to any person or use for his own account any of such
information, observations, or data unless and to the extent that such
information, observations, or data become generally known to and available
for use by the public otherwise than as a result of the Partner's act or
omission to act. The Partner agrees to deliver to the Company, at any time
the Company may request, all memoranda, notes, plans, records, reports, and
other documents (and copies thereof) relating to the conduct of the System of
which it may then possess or have under its control.
3. NONCOMPETITION. The Partner agrees that it shall not, until 11:59
p.m. on the fifth (5th) anniversary of the date hereof:
a. directly or indirectly own, engage in, manage, operate, join,
control, or participate in the ownership, management, operation,
or control of, or be connected as a stockholder, director,
officer, employee, agent, partner, joint venturer, member,
beneficiary, or otherwise with, any corporation, limited
liability company, partnership, sole proprietorship, association,
business, trust, or other organization, entity or individual
which in any way competes with the Company in the sale or leasing
of pagers or paging services in the Florida Area (as hereinafter
defined); PROVIDED, HOWEVER, that the Partner may own, directly
or indirectly, securities of any entity traded on any national
securities exchange or listed on the National Association of
Securities Dealers Automated Quotation System if the Partner does
not, directly or indirectly, own 1% or more of any class of
equity securities, or securities convertible into or exercisable
or exchangeable for 1% or more of any class of equity securities,
of such entity;
b. aid, abet, or otherwise assist any individual, business or other
organization or entity in canvassing, soliciting, or accepting
any contracts for the sale or lease of pagers or paging services
in the Florida Area;
c. directly or indirectly request or advise any present or future
customers of the Company to cancel any contracts with the Company
or curtail their dealings with the Company;
d. directly or indirectly request or advise any present or future
service provider or financial resource of the System or the
Company to withdraw, curtail, or cancel the furnishing of such
service or resource to the Company;
e. directly or indirectly disclose or communicate to any other
person, firm, or corporation:
(1) the names of past, present, or future customers of the
Company; or
(2) any names of past, present, or future employees or other
knowledge of or relating to the Company; or
f. directly or indirectly induce or attempt to influence any
employee of the Company to terminate his or her employment.
As used herein, the "Florida Area" means that area described in the map attached
hereto as Schedule 1.
4. AMENDMENTS. This Agreement may be amended or modified from time to
time, but only by a written instrument executed by both parties hereto.
5. NOTICES. Any notices required or permitted hereunder shall be in
writing and shall be deemed given (a) when personally delivered, (b) when
confirmed if delivered by telefacsimile or similar device, or (c) when sent by
registered or certified mail, return receipt requested, addressed to the other
party at its or his address set forth below its or his signature to this
Agreement, or at such other address as it or he may specify in writing in
accordance with this Section 5.
6. ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties hereto respecting the subject matter hereof and supersedes all prior
discussions and understandings.
7. ASSIGNMENT; PARTIES BOUND. The Company may assign its rights and
obligations hereunder to any party. The Partners may not assign any of its
obligations hereunder. Any assignment in violation of the foregoing shall be
null and void. Subject to the foregoing, this Agreement shall be binding upon
the parties hereto and shall inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, legal representatives,
successors, and permitted assigns.
8. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Texas (regardless of the laws that might otherwise govern under
applicable Texas principles of conflicts of law) as to all matters, including
but not limited to, matters of validity, construction, effect, performance, and
remedies.
9. NON-WAIVER OF BREACH. A waiver by any party hereto of a particular
breach or default in connection with any provision of this Agreement shall not
be deemed a waiver of any subsequent default or breach of the same or any other
provision of this Agreement.
10. INVALID PROVISION. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws, such provision
shall be severable, and this Agreement shall be construed and enforced as if
such illegal, invalid, or unenforceable provision had never comprised a part of
this Agreement, and the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by such
illegal, invalid, or unenforceable provision or by its severance herefrom.
Furthermore, in lieu of such illegal, invalid, or unenforceable provision,
there shall be added automatically as a part of this Agreement a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may
be possible and be legal, valid, and enforceable.
11. HEADINGS. The headings in this Agreement are for purposes of
reference only and shall not be considered in construing this Agreement.
12. ATTORNEYS' FEES. If either party hereto brings any action, at law or
in equity, to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to recover from the other party hereto reasonable
attorneys' fees in addition to any other relief to which such party may be
entitled.
13. ENFORCEMENT OF COVENANTS. The Partner agrees that a violation on his
part of any covenant contained herein shall cause irreparable damage to the
Company and, consequently, the Partner further agrees that the Company shall be
entitled, as a matter of right, to an injunction restraining any further
violation of such covenant by the Partner. Such right to an injunction shall be
cumulative and in addition to all other remedies the Company may have,
including, but not limited to, recovery of damages.
14. In the event that this Noncompetition Agreement conflicts with any
terms contained in the Purchase Agreement, the Purchase Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
CONTACT COMMUNICATIONS INC.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Fax No: (000) 000-0000
AMERICAN MOBILPHONE, INC.
By:
------------------------------------
Title:
---------------------------------
Address:
-------------------------------
----------------------------------------
----------------------------------------
EXHIBIT F
---------
NONCOMPETITION AGREEMENT
------------------------
This Noncompetition Agreement (the "Agreement") is entered into as of
__________, 1995, between Contact Communications Inc., a Delaware corporation
(the "Company"), and Sun Paging Communications, a Florida general partnership
("Sun").
W I T N E S S E T H
-------------------
WHEREAS, concurrently herewith Sun is selling, transferring, and conveying
to the Company, pursuant to that certain Asset Purchase Agreement (the "Purchase
Agreement") dated as of ___________, 1995, by and among the Company, Sun, Xxxxxx
Communications Incorporated, and American Mobilphone, Inc., substantially all of
the property and assets that are used in the conduct of Sun 's radio paging
system business (such property, assets, and business, including all affiliated
networks, being hereinafter collectively called the "System");
WHEREAS, the Company has requested that Sun enter into this Agreement as an
inducement to the Company to enter into and consummate the transactions
contemplated by the Purchase Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. CONSIDERATION. Sun has entered into this Agreement and made the
covenants hereinafter set forth in order to induce the Company to consummate the
transactions contemplated by the Purchase Agreement.
2. CONFIDENTIAL INFORMATION. Sun acknowledges that the information,
observations, and data obtained or possessed by it concerning the business
affairs of the System (the "Confidential Information") will be the property of
the Company and not Sun . Therefore, Sun agrees that it will not disclose to
any person (other than the Company or any other person to whom such disclosure
has been specifically authorized by the Company in writing) or use for its own
account any of such Confidential Information unless and to the extent that any
such Confidential Information is or becomes generally known to and available for
use by the public otherwise than as a result of Sun's act or omission to act and
except as specifically permitted by the terms of this Agreement or as otherwise
required by law. In the event that Sun becomes legally compelled to disclose
any of the Confidential Information, Sun shall provide the Company
with prompt prior notice so that the Company may seek a protective order or
other appropriate remedy. In the event that such protective order or other
remedy is not obtained, Sun will furnish only that portion of the
Confidential Information which it is legally required to disclose. Sun
agrees to deliver to the Company, at any time the Company may request, all
memoranda, notes, plans, records, reports, and other documents (and copies
thereof) relating to the conduct of the System which it may then possess or
have under its control.
3. NONCOMPETITION. Sun agrees that it shall not, until 11:59 p.m. on the
fifth (5th) anniversary of the date hereof:
a. directly or indirectly own, engage in, manage, operate, join,
control, or participate in the ownership, management, operation,
or control of, or be connected as a stockholder, director,
officer, employee, agent, partner, joint venturer, member,
beneficiary, or otherwise with, any corporation, limited
liability company, partnership, sole proprietorship, association,
business, trust, or other organization, entity or individual
which in any way competes with the Company in the sale or leasing
of pagers or paging services in the Florida Area (as hereinafter
defined); PROVIDED, HOWEVER, that Sun may own, directly or
indirectly, securities of any entity traded on any national
securities exchange or listed on the National Association of
Securities Dealers Automated Quotation System if Sun does not,
directly or indirectly, own 1% or more of any class of equity
securities, or securities convertible into or exercisable or
exchangeable for 1% or more of any class of equity securities, of
such entity;
b. aid, abet, or otherwise assist any individual, business or other
organization or entity in canvassing, soliciting, or accepting
any contracts for the sale or leasing of pagers or paging
services in the Florida Area;
c. directly or indirectly request or advise any present or future
customers of the Company to cancel any contracts with the Company
or curtail their dealings with the Company;
d. directly or indirectly request or advise any present or future
service provider or financial resource of the System or the
Company to withdraw, curtail, or cancel the furnishing of such
service or resource to the Company;
e. directly or indirectly disclose or communicate to any other
person, firm, or corporation:
(1) the names of past, present, or future customers of the
Company; or
(2) any names of past, present, or future employees or other
knowledge of or relating to the Company; or
f. directly or indirectly induce or attempt to influence any
employee of the Company to terminate his or her employment.
As used herein, the "Florida Area" means that area described in the map attached
hereto as Schedule 1.
4. AMENDMENTS. This Agreement may be amended or modified from time to
time, but only by a written instrument executed by both parties hereto.
5. NOTICES. Any notices required or permitted hereunder shall be in
writing and shall be deemed given (a) when personally delivered, or (b) when
confirmed if delivered by telefacsimile or similar device, or (c) when sent by
registered or certified mail, return receipt requested, addressed to the other
party at its address set forth below its signature to this Agreement, or at such
other address as it may specify in writing in accordance with this Section 5.
6. ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties hereto respecting the subject matter hereof and supersedes all prior
discussions and understandings.
7. ASSIGNMENT; PARTIES BOUND. The Company may assign its rights and
obligations hereunder to any party. Sun may not assign any of its obligations
hereunder. Any assignment in violation of the foregoing shall be null and void.
Subject to the foregoing, this Agreement shall be binding upon the parties
hereto and shall inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, legal representatives, successors, and
permitted assigns.
8. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Texas (regardless of the laws that might otherwise govern under
applicable Texas principles of conflicts of law) as to all matters, including
but not limited to, matters of validity, construction, effect, performance, and
remedies.
9. NON-WAIVER OF BREACH. A waiver by any party hereto of a particular
breach or default in connection with any provision of this Agreement shall not
be deemed a waiver of any subsequent default or breach of the same or any other
provision of this Agreement.
10. INVALID PROVISION. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws, such provision
shall be severable, and this Agreement shall be construed and enforced as if
such illegal, invalid, or unenforceable provision
had never comprised a part of this Agreement, and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be
affected by such illegal, invalid, or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid, or
unenforceable provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and
enforceable.
11. HEADINGS. The headings in this Agreement are for purposes of
reference only and shall not be considered in construing this Agreement.
12. ATTORNEYS' FEES. If either party hereto brings any action, at law or
in equity, to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to recover from the other party hereto reasonable
attorneys' fees in addition to any other relief to which such party may be
entitled.
13. ENFORCEMENT OF COVENANTS. Sun agrees that a violation on its part of
any covenant contained herein shall cause irreparable damage to the Company and,
consequently, Sun further agrees that the Company shall be entitled, as a matter
of right, to an injunction restraining any further violation of such covenant by
Sun. Such right to an injunction shall be cumulative with any and all other
remedies the Company may have, including, but not limited to, recovery of
damages.
14. In the event that this Noncompetition Agreement conflicts with any
terms contained in the Purchase Agreement, the Purchase Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
CONTACT COMMUNICATIONS INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Fax No: (000) 000-0000
SUN PAGING COMMUNICATIONS
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
-------------------------------
----------------------------------------
Attn:
----------------------------------
Fax No. ( )
----- ------------------------
EXHIBIT G
LICENSE AGREEMENT
This License Agreement ("License Agreement") is made on the ___ day of
_____________, 1995, by and between Sun Paging Communications, a Florida general
partnership ("Licensor"), and Contact Communications Inc., a Delaware
corporation ("Licensee").
RECITALS:
A. Licensor and Licensee are parties to that certain Asset Purchase
Agreement (the "Purchase Agreement"), dated as of _____________1995, with
respect to the sale by Licensor to Licensee of substantially all of the property
and assets of Licensor used in the conduct of Licensor's radio paging system
business (the "System").
B. Licensor owns and uses certain trademarks and service marks as defined
herein (the "Marks").
C. Licensee desires to obtain a license to use the Marks.
AGREEMENTS:
NOW, THEREFORE, the parties hereto, in consideration of the mutual
agreements herein contained and promises herein expressed, and for other good
and valuable consideration acknowledged by each of them to be satisfactory and
adequate, do hereby agree as follows:
1. As used herein, "Marks" shall mean the trademark and service xxxx
"Sun Paging".
2. "Licensed Territory" shall mean the Florida Area, as set forth in
Schedule 1 hereto.
3. Licensor hereby grants to Licensee a paid-up, royalty-free, non-
exclusive license to use the Marks in connection with the operation of the
System and on or in connection with the goods and/or services sold by or under
the System in the Licensed Territory for a period of five (5) years beginning
on, and including, the date of the execution of this License.
4. Licensee shall have unlimited use of the Marks in the Licensed
Territory and may use the Marks as fully as if Licensee were the owner of the
Marks, and Licensee's right to use the Marks shall include, without limitation,
use in packaging, labels, advertising and related materials, business cards,
stationery, price lists, product catalogues and brochures, and the right to use
the licensed Marks as part of a corporate name, partnership name or name of any
other person; provided, however, that the nature and quality of all services
rendered and goods sold by Licensee
in connection with the Marks shall conform to the reasonable standards set by
and under the control of Licensor. Licensee agrees to permit reasonable
inspection of Licensee's operations by Licensor, and to supply Licensor with
specimens of use of the Marks upon request, to permit Licensor to verify
Licensee's compliance with the terms of the immediately preceding sentence.
5. Licensor hereby represents and warrants to Licensee that Licensor has
the full corporate power and authority to grant the license set forth in
paragraph 3 hereof and that Licensor has not granted or suffered any liens,
restrictions, security interests, encumbrances, or licenses with respect to the
Marks. Licensor expressly disclaims any representation or warranty as to the
exclusivity of its rights to the use of the xxxx "Sun Paging, Inc.."
6. Licensee may, but shall not be required to, at its sole expense, take
whatever action Licensee, in its sole discretion, deems necessary or advisable
to protect its right to use the Marks in the Licensed Territory. Such action
may include, without limitation, assuming responsibility at its own expense for
the defense of any lawsuit challenging or affecting rights to the Marks, and/or
instituting litigation at its own expense to protect its rights to the Marks.
Should Licensee choose to take any action with respect to the Marks, Licensor
shall comply with all reasonable requests for assistance in connection
therewith. Any recovery as a result of such action shall belong solely to
Licensee.
7. In the event Licensor decides not to take any action required to
maintain or renew registration for the Marks, Licensee at its expense may take
appropriate action to maintain or renew any such registration in the name of
Licensor, and Licensor shall cooperate reasonably with Licensee, including,
without limitation, by signing required documents, to allow Licensee to effect
any such maintenance or renewal action provided that Licensor shall incur no
liability to Licensee for its failure to maintain any registrations.
8. Licensee may assign or transfer its rights or obligations under this
License Agreement, whether by operation of law or otherwise, without the consent
of Licensor. Licensee shall also have the right to sublicense its right to use
the Marks without the prior written consent of Licensor.
9. This License Agreement sets forth the entire agreement between the
parties, and supersedes any and all prior agreements or understandings between
the parties, pertaining to the subject matter hereof. This License Agreement
may not be amended, modified or terminated, in whole or in part, except by an
instrument in writing duly executed by the parties.
10. Licensor shall at all times do, execute, acknowledge and/or deliver or
cause to be done, executed, acknowledged, or delivered such further acts,
agreements, and assurances as the Licensee reasonably may require for the
purposes of this License Agreement.
G-2
11. This License Agreement may be executed in any number of counterparts;
and each of which, when so executed and delivered, shall be deemed an original,
but such counterparts together shall constitute one and the same instrument.
12. This License Agreement shall inure to the benefit of and be binding
upon Licensor, Licensee and their respective permitted successors and assigns.
13. In the event that this License Agreement conflicts with any terms
contained in the Purchase Agreement, the Purchase Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have duly executed this License
Agreement on the date first above written.
SUN PAGING COMMUNICATIONS
By:------------------------------------
Name:----------------------------------
Title:---------------------------------
CONTACT COMMUNICATIONS INC.
By:------------------------------------
Name:----------------------------------
Title:---------------------------------
G-3
EXHIBIT H
ALLOCATION OF PURCHASE PRICE
CLASS I ASSETS (Cash and similar items) $__________
CLASS II ASSETS (CD's and readily marketable
securities) $__________
CLASS III ASSETS (Furniture and fixtures; land;
buildings; accounts receivable; other tangible
assets) $__________
- inventory ______
- fixed assets ______
- prepaid expenses ______
CLASS IV ASSETS (Section 197 assets,
including goodwill and going-
concern value) $__________*
TOTAL PURCHASE PRICE $__________
* plus any amounts to be paid to the Purchaser due to an increase in the
number of pagers, pursuant to APPENDIX A of the Purchase Agreement.
EXHIBIT I
______________________________________________________________________________
NORWEST BANK DEPOSITORY AGREEMENT-INDEMNIFICATION ESCROW
______________________________________________________________________________
THE UNDERSIGNED Contact Communications Inc. ("Purchaser"), Sun Paging
Communications ("Seller"), Xxxxxx Communications Incorporated ("Xxxxxx"),
American Mobilphone, Inc. ("American", collectively with Xxxxxx, the
"Partners"), (collectively, the "Undersigned"), in order to designate Norwest
Bank Texas, National Association, (the Depository") as the Depository for the
Undersigned for the purposes and upon the terms and conditions herein set forth,
do hereby represent and warrant to, and agree with each other and the
Depository, as follows:
1. APPOINTMENT OF THE DEPOSITORY. The Depository is hereby appointed
Depository for the Undersigned with respect to the "Property" as that term is
herein defined.
2. THE PROPERTY. At the closing (the "Closing") of the transactions
contemplated by that certain Asset Purchase Agreement dated as of November 10,
1995 (the "Purchase Agreement"), the Undersigned shall deposit with the
Depository, as custodian and depository, the items described in Schedule A
hereto, or in lieu thereof, have made provision in paragraph 22 for the deposit
of items hereunder (such items being herein collectively called the "Property"),
and direct that same be held and disposed of by the Depository as herein
provided.
3. THE DEPOSITORY'S DUTIES AND AUTHORITY TO ACT.
(a) Except as may be otherwise provided in paragraph 22, in which event
the special instructions in said paragraph 22 shall be controlling, the
Depository shall hold the Property in safekeeping and deliver the same or any
part or parcel thereof, including the interest earned from investments made
pursuant to paragraph 20 hereof, only (i) to one or more of the Undersigned in
accordance with and upon the written instructions of each of the other of the
Undersigned and/or (ii) in accordance with and upon the written instructions of
all the Undersigned.
(b) When instructions from more than one of the Undersigned are required,
such instructions may be given by separate instruments of similar tenor. Any of
the Undersigned may hereafter act through an agent or attorney-in-fact only if
written evidence of authority in form and substance satisfactory to the
Depository is furnished to the Depository and agreed to by the Depository.
(c) The Depository may act upon any written notice, request, waiver,
consent, certificate, receipt, authorization, power of attorney or other
document which it in good faith believes to be genuine.
(d) The Depository shall be deemed to have properly delivered any item of
Property upon (i) placing the item in the United States mail in a suitable
package or envelope with first class prepaid postage affixed, addressed to the
addressee at such addressee's address as set forth in this Agreement or such
other address as the Undersigned shall have furnished to the
Depository in writing; (ii) delivery in person at the Depository's offices;
or (iii) delivery in any other manner pursuant to written instructions of the
Undersigned.
(e) In performing its duties under this Agreement, or upon the claimed
failure to perform any of its duties hereunder, the Depository shall not be
liable to anyone for damages, losses or expenses which may be incurred as a
result of the Depository so acting or failing to so act; provided, however, the
Depository shall not be relieved from liability for damages arising out of its
proven gross negligence or willful misconduct under this Agreement. The
Depository shall in no event incur any liability with respect to (i) any action
taken or omitted to be taken in good faith upon advice of legal counsel given
with respect to any questions relating to the duties and responsibilities of the
Depository hereunder or (ii) any action taken or omitted to be taken in reliance
upon any document delivered to the Depository and believed by it to be genuine
and to have been signed or presented by the proper party or parties.
(f) Payment of moneys hereunder shall be made by check or by wire transfer
of immediately available funds in accordance with instructions contained in the
applicable disbursement notice to the Depository.
4. OTHER AGREEMENTS. The Depository is not a party to, nor is it bound
by, nor need it give consideration to the terms or provisions of, any other
agreement or undertaking among the Undersigned or any of them, or between the
Undersigned or any of them and other persons, or any agreement or undertaking
which may be evidenced by or disclosed by the Property, it being the intention
of the parties hereto that the Depository assent to and be obligated to give
consideration only to the terms and provisions hereof. Unless otherwise
provided in paragraph 22, the Depository shall have no duty to determine or
inquire into the happening or occurrence of any event or contingency or the
performance or failure of performance of any of the Undersigned with respect to
arrangements or contracts with each other or with others, the Depository's sole
duty hereunder being to hold the Property and to dispose of and deliver the same
in accordance with instructions given to it as provided in paragraph 3.
5. STANDARD OF CARE.
(a) The Depository undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement and no implied covenants or
obligations shall be read into this Agreement against the Depository.
(b) If the Depository is required by the terms hereof to determine the
occurrence of any event or contingency, the Depository shall, in making such
determination, be liable only for its proven gross negligence or willful
misconduct, as determined in light of all the circumstances, including the time
and facilities available to it in the ordinary conduct of its business. In
determining the occurrence of any such event or contingency the Depository may
request from any of the Undersigned or any other person such reasonable
additional evidence as the Depository in its sole discretion may deem necessary
to determine any fact relating to the occurrence of such event or contingency,
and may at any time inquire of and consult with others, including without
limitation, any of the Undersigned, and the Depository shall not be liable for
any damages resulting from its delay in acting hereunder pending its receipt and
examination of additional evidence requested by it.
2
(c) Whenever the Depository is required by the terms hereof to take action
upon the occurrence of any event or contingency, the time prescribed for such
action shall in all cases be a reasonable time after written notice received by
the Depository for the happening of such event or contingency, provided however,
that this provision shall not be deemed to limit or reduce the time allowed the
Depository for action as provided in paragraph 5(b).
6. LIMITATION ON LIABILITY. The Depository shall not be responsible or
liable to the Undersigned or to any other person in any manner whatsoever for
the sufficiency, correctness, genuineness, effectiveness or validity of any of
the Property, or for the form or execution thereof, or for the identity or
authority of any person executing or depositing the same. If any of the
Undersigned are acting as agent for others, all of the Undersigned represent and
warrant that each such agent is authorized to make and enter into this
Agreement. This Agreement is a personal one between the Undersigned and the
Depository. The Depository is authorized by each of the Undersigned to rely
upon all representations, both actual and implied, of each of the Undersigned
and all other persons relating to this Agreement and/or the Property, including
without limitation representations as to marital status, authority to execute
and deliver this Agreement, notifications, receipts or instructions hereunder,
and relationships among persons, firms, corporations or other entities,
including those authorized to receive delivery hereunder, and the Depository
shall not be liable to any person in any manner by reason of such reliance. The
duties of the Depository hereunder shall be only to the Undersigned, their
respective successors, heirs, assigns, executors and administrators and to no
other person, firm, corporation or other entity whatsoever.
7. TIME OF PERFORMANCE. Whenever under the terms hereof the time for
performance of any provision shall fall on a date which is not a regular
business day of the Depository, the performance thereof on the next
succeeding regular business day of the Depository shall be deemed to be in
full compliance. Whenever time is referred to in this Agreement, it shall be
the time recognized by the Depository in the ordinary conduct of its normal
business transactions.
8. DEATH, DISABILITY, ETC. OF THE UNDERSIGNED. The death, disability,
bankruptcy, insolvency, reorganization or absence of any of the Undersigned
shall not affect or prevent performance by the Depository of its obligations or
its right to rely upon instructions received hereunder. However, in the event
of the death, disability, bankruptcy, insolvency, reorganization or absence of
any of the Undersigned, the Depository (without liability to any of the
Undersigned) may refrain from taking any action required or requested hereunder.
9. EXAMINATION OF THE PROPERTY. Any of the Undersigned may examine the
Property during the regular business hours of the Depository; such examination
shall, however, be permitted only in the presence of an officer of the
Depository.
10. REMEDIES OF THE DEPOSITORY.
(a) As additional consideration for and as an inducement for the Depository
to act hereunder, it is understood and agreed that in the event of any
disagreement between the parties to this Agreement or in the event any other
person or entity claims an interest in the Property or any part thereof, and
such disagreement or claim results in adverse claims and
3
demands being made by them or any of them in connection with or for any part
of the Property, the Depository shall be entitled, at the option of the
Depository, to refuse to comply with the instructions or demands of the
parties to this Agreement, or any of such parties, so long as such
disagreement or adverse claim shall continue. In such event, the Depository
shall not be required to make delivery or other disposition of the Property.
Anything herein to the contrary notwithstanding, the Depository shall not be
or become liable to the Undersigned or any of them for the failure of the
Depository to comply with the conflicting or adverse demands of the
Undersigned or any of such parties or of any other persons or entities
claiming an interest in the Property or any part thereof. The Depository
shall be entitled to refrain and refuse to deliver or otherwise dispose of
the Property or any part thereof or to otherwise act hereunder, as stated
above, unless and until (i) the rights of the parties and all other persons
and entities claiming an interest in the Property have been duly adjudicated
in a court having jurisdiction of the parties and the Property or (ii) the
parties to this Agreement and such other persons and entities have reached an
agreement resolving their differences and have notified the Depository in
writing of such agreement and have provided the Depository with indemnity
satisfactory to it against any liability, claims or damages resulting from
compliance by the Depository with such agreement. In addition to the
foregoing, the Depository shall have the right to tender into the registry or
custody of any court having jurisdiction, any part of or all of the Property.
Upon such tender, the parties hereto agree that the Depository shall be
discharged from all further duties under this Agreement; provided, however,
that the filing of any such legal proceedings shall not deprive the
Depository of its compensation hereunder earned prior to such filing and
discharge of the Depository of its duties hereunder.
(b) While any suit or legal proceeding arising out of or relating to this
Agreement or the Property or the Undersigned is pending, whether the same be
initiated by the Depository or by others, the Depository shall have the right at
its option to stop all further performance of this Agreement and instructions
received hereunder until all differences shall have been resolved by agreement
or until the rights of all parties shall have been fully and finally adjudicated
by the court. For purposes of any suit or legal proceeding arising out of or
relating to this Agreement to which the Depository may be a party, the
Undersigned hereby consent and submit to the jurisdiction of the appropriate
court, whether Federal or state, sitting in Dallas County, Texas. The rights
of the Depository under this paragraph are in addition to all other rights which
it may have by law or otherwise.
11. RELIANCE ON COUNSEL. The Depository may from time to time consult
with legal counsel of its own choosing in the event of any disagreement, or
controversy, or question or doubt as to the construction of any of the
provisions hereof or its duties hereunder, and it shall incur no liability and
shall be fully protected in acting in good faith in accordance with the opinion
or instructions of such counsel. Any such fees and expenses of such legal
counsel shall be considered part of the fees and expenses of the Depository
described below.
12. FEES AND EXPENSES.
(a) The Undersigned hereby jointly and severally agree to pay the
Depository for its ordinary services hereunder the fees determined in accordance
with, and payable as specified in, the Schedule of Fees set forth in Exhibit
"A", attached hereto. In addition, the Undersigned hereby jointly and severally
agree to pay to the Depository its expenses incurred
4
in connection with this Agreement, including, but not limited to, legal fees
and expenses, in the event the Depository deems it necessary to retain
counsel. Such expenses shall be paid to the Depository within 10 days
following receipt by any of the Undersigned of a written statement setting
forth such expenses.
(b) The Undersigned jointly and severally agree that in the event any
controversy arises under or in connection with this Agreement or the Property,
or the Depository is made a party to or intervenes in any litigation pertaining
to this Agreement or the Property, to pay to the Depository reasonable
compensation for its extraordinary services and to reimburse the Depository for
all costs and expenses associated with such controversy or litigation,
including, but not limited to, legal fees and expenses.
(c) As security for all fees and expenses of the Depository hereunder and
any and all losses, claims, damages, liabilities and expenses incurred in
connection with the acceptance of appointment hereunder or with the performance
of its obligations under this Agreement and to secure the obligation of the
Undersigned to indemnify the Depository as set forth in paragraph 21 hereof, the
Depository is granted a security interest in and lien upon the Property, which
security interest and lien shall be prior to all other security interests, liens
or claims against the Property or any part thereof. Each of the Undersigned
warrant and agree with the Depository that, unless otherwise expressly set forth
in this Agreement, there is no security interest in the Property or any part
thereof; no financing statement under the Uniform Commercial Code of any
jurisdiction is on file in any jurisdiction claiming a security interest in or
describing, whether specifically or generally, the Property or any part thereof;
and the Depository shall have no responsibility at any time to ascertain whether
or not any security interest exists in the Property or any part thereof or to
file any financing statement under the Uniform Commercial Code of any
jurisdiction with respect to the Property or any part thereof.
(d) The Depository is authorized by the Undersigned to withhold from the
Property, prior to distribution thereof and prior to termination of this
Agreement, all fees and expenses to which the Depository is entitled hereunder.
In addition, in the event any such fees and expenses are not paid to the
Depository on or prior to the date such amounts are due, the Depository is
hereby authorized and directed to pay such amounts owed to it from cash funds
included in the Property or, if no cash funds are then included in the Property,
to sell assets constituting part of the Property for the purpose of paying such
amounts owed to it.
(e) In the event fees and expenses of the Depository are to be paid
pursuant to paragraph 22 hereof, it is understood and agreed by the Undersigned
that such fees and expenses are in addition to those described above and that
such fees and expenses shall be subject to periodic review and modification by
the Depository as determined by the Depository in its sole discretion.
13. EFFECTIVE DATE. The effective date of this Agreement shall be the
date on which it is accepted by the Depository unless otherwise provided in
paragraph 22.
14. TERMINATION AND RESIGNATION. Unless sooner terminated as hereinafter
provided, this Agreement shall terminate without action of any party when all of
the terms hereof shall have been fully performed. Either the Depository or the
Undersigned may terminate this Agreement upon thirty (30) days written notice
(i) signed by the Depository and delivered to each of the Undersigned or (ii)
signed by each of the Undersigned and
5
delivered to the Depository. Upon termination of this Agreement, the
Depository shall deliver the Property in accordance with the written
instructions delivered by the Undersigned pursuant to paragraph 3(a) hereof.
All fees and expenses owed to the Depository hereunder shall be paid in full
prior to such delivery of the Property, and the Depository is hereby
authorized and directed by the Undersigned to withhold release or
distribution of the Property until such time as the Depository has received
payment in full of such fees and expenses. The Depository is authorized and
directed to deduct such fees and expenses from the Property prior to release
or distribution thereof.
15. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and such counterparts shall constitute and be
one and the same instrument.
16. ASSIGNMENT OF INTERESTS. None of the Undersigned shall assign or
attempt to assign or transfer his or its interest hereunder or any part
thereof. Any such assignment or attempted assignment by any one or more of
the Undersigned shall be in direct conflict with this Agreement and the
Depository shall not be bound thereby.
17. AMENDMENTS. This Agreement cannot be amended or modified except by
another agreement in writing signed by all the parties hereto or by their
respective successors in interest.
18. HEADINGS. The paragraph headings contained herein are for convenience
of reference only and are not intended to define, limit or describe the scope or
intent of any provision of this agreement.
19. GOVERNING LAW. This Agreement shall be deemed to have been made and
shall be construed and interpreted in accordance with the laws of the State of
Texas.
20. INVESTMENT OF PROPERTY; WITHHOLDING.
(a) The Depository shall invest cash balances each day in such money
market or other short-term investment funds as shall be specified in writing by
an Authorized Representative on Exhibit "B" [Disclosure and Direction] attached
hereto. Such money market or short-term investment funds may include any open-
end or closed-end management investment trust or investment company registered
under the Investment Company Act of 1940, as amended, for which the Depository
or one of its affiliates acts as investment advisor, custodian, transfer agent,
registrar, sponsor, distributor, manager or otherwise, and any fees paid to the
Depository or its affiliate by such fund shall be in addition to the fees and
expenses owed to the Depository under this Agreement.
(b) The Depository shall not be responsible or liable for determination or
payment of any taxes assessed against the Property or the income therefrom nor
for the preparation or filing of any tax returns other than withholding required
by statute or treaty. Each of the Undersigned agree to provide the Depository
any information necessary to perform any such required withholding and the
Depository shall be entitled to rely on such information. The Depository will
establish the account holding the Property under the TIN of ________________; if
Depository is responsible for tax reporting as set forth in paragraph
6
22, it will be rendered under the aforementioned TIN. A W-9 certifying to
the party's withholding status in the form set forth on Exhibit "C" attached
hereto will be completed at closing.
(c) The Depository may make any and all investments through its own bond
or investment department. The Depository shall not be held liable or
responsible for the quality or diversity of the assets constituting the Property
or for any loss or depreciation in the value of such assets or any loss
resulting from any investment made by the Depository in accordance with the
terms of this Agreement. If the Depository is required to sell or otherwise
redeem or liquidate any Property prior to its maturity, the Undersigned agree
that the Depository shall not be personally liable for any loss to the Property
(including either principal or income) or other costs incurred as a result of
any such early redemption or liquidation.
21. INDEMNIFICATION AND HOLD HARMLESS. The Undersigned hereby agree to
indemnify and hold the Depository and its directors, employees, officers,
agents, successors and assigns harmless from and against any and all losses,
claims, damages, liabilities and expenses, including without limitation,
reasonable costs of investigation and counsel fees and expenses which may be
imposed on the Depository or incurred by it in connection with its acceptance of
this appointment as the Depository hereunder or the performance of its duties
hereunder. Such indemnity includes, without limitation, all losses, damages,
liabilities and expenses (including counsel fees and expenses) incurred in
connection with any litigation (whether at the trial or appellate levels)
arising from this Escrow Agreement or involving the subject matter hereof. The
indemnification provisions contained in this paragraph 21 are in addition to any
other rights any of the indemnified parties may have by law or otherwise and
shall survive the termination of this Agreement or the resignation or removal of
the Depository.
22. ADDITIONAL TERMS.
SEE EXHIBIT D
7
IN WITNESS WHEREOF, the parties hereto have caused this Depository
Agreement - Indemnification Escrow to be executed this _____________day of
_______________, 199__.
SUN PAGING COMMUNICATIONS
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
XXXXXX COMMUNICATIONS, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
AMERICAN MOBILPHONE, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
CONTACT COMMUNICATIONS INC.
By:
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and General Counsel
--------------------------------------
The Depository hereby acknowledges receipt of the Property described in
Schedule A hereof and hereby accepts the same as Depository hereunder, subject
to the terms and conditions set forth above, this ___________day of __________,
199__.
Norwest Bank Texas, National Association,
DEPOSITORY
BY:
----------------------------------------
TITLE:
-------------------------------------
8
ATTACHMENTS:
Schedule A - Description of Property
Exhibit A - Schedule of Fees
Exhibit B - Disclosure and Direction (Investments)
Exhibit C - Withholding Form
9
SCHEDULE A
DESCRIPTION OF PROPERTY
(Description of the "Property" as that term is defined in paragraph 2 of the
Agreement) In the event the property is other than cash, securities or
negotiable instruments, the following provisions shall apply: (i) Depository
makes no warranty as to the suitability for any particular purpose of the
Property deposited with Depository hereunder, or
(ii) Depository makes no warranty that the facilities of the Depository are
suitable for the deposit of the Property, or (ii) Depository shall not be liable
for any deterioration or destruction of the Property while in the possession of
Depository, except for the gross negligence or willful misconduct of the
Depository, or (iv) Depository has no duty to determine if any Property
deposited hereunder is in fact the property that is required to be deposited
hereunder pursuant to any agreement of the Undersigned.
$75,000.00
The following person(s) are designated as Authorized Representative as that term
is defined in the Agreement and specimen signatures are shown:
CONTACT COMMUNICATIONS INC.
----------------------------------- -----------------------------------
By: Xxxx X. Xxxxx, Vice President Signature
SUN PAGING COMMUNICATIONS
----------------------------------- -----------------------------------
By: Signature
XXXXXX COMMUNICATIONS, INC.
----------------------------------- -----------------------------------
By: Signature
AMERICAN MOBILPHONE, INC.
----------------------------------- -----------------------------------
By: Signature
10
EXHIBIT A
SCHEDULE OF FEES
$1,500.00
Out of pocket expenses such as, but not limited to, postage, courier, insurance,
long distance telephone, stationery, travel, legal or accounting, etc., will be
billed at cost.
The initial and administration fee are due at closing.
These fees do not include extraordinary services which will be priced according
to time and scope of duties.
It is acknowledged that the Schedule of Fees shown above are acceptable for the
services mutually agreed upon and the Undersigned authorize the Depository to
perform said services.
ACKNOWLEDGED AND AGREED:
SUN PAGING COMMUNICATIONS
-----------------------------------------------------
BY:
XXXXXX COMMUNICATIONS, INC.
-----------------------------------------------------
BY:
AMERICAN MOBILPHONE, INC.
-----------------------------------------------------
BY:
CONTACT COMMUNICATIONS INC.
-----------------------------------------------------
BY: Xxxx X. Xxxxx, Vice President and General Counsel
DATE:
-----------------------------------------------------
11
EXHIBIT D
TO DEPOSITORY AGREEMENT - INDEMNIFICATION ESCROW
22. Additional Terms
a. CLAIMS AGAINST AND PAYMENTS FROM ESCROW.
(i) Claims against the Property may be made by Purchaser, on its own
behalf or on behalf of any other Purchaser Indemnified Party (as defined in the
Purchase Agreement), for indemnification of any Purchaser Indemnified Cost (as
defined in the Purchase Agreement).
(ii) Purchaser shall promptly notify Seller and the Depository in writing
of any sums which Purchaser claims are subject to indemnification under the
Purchase Agreement. Failure of Purchaser to exercise promptness in such
notification shall not amount to a waiver of such claim unless the resulting
delay materially prejudices the position of the Seller with respect to such
claim. Such notice shall consist of a description of the claim and specify each
Indemnified Party and the amount (which may be estimated) of the claim in United
States dollars.
(iii) The Seller may contest the claims specified in paragraph
22(a)(ii) (or any portion thereof) by giving the Depository and Purchaser
written notice of such contest within fifteen days after receipt by the Seller
of a notice from Purchaser under paragraph 22(a)(ii), which notice of contest
shall include a statement of the grounds of such contest and shall state the
amount of any such claim by Purchaser that the Seller do not dispute.
(iv) Payment of any claim for indemnification (or portion thereof) to which
the Property is subject shall become due and payable by the Depository upon
receipt of written authorization executed by the Undersigned.
b. RELEASE OF FUNDS. On the 90th, 180th and 270th day following the
Closing, the Depository shall release to the Seller the lesser of (i) $25,000,
or (ii) $25,000 less the portion of the Property subject to claims by
Purchaser. Payment of Property under this Section 22(b) by the Depository
shall be pursuant to written instructions executed by the Undersigned.
c. Distribution. Depository on or before the above described dates in
Section 22(b) shall distribute to Seller all income earned on the Property.
d. NOTICES. All notices, consents, or other communications hereunder
shall be in writing and shall be sufficient if delivered personally, sent by
facsimile or similar device, or sent by registered or certified mail, or via
express mail service, postage prepaid, addressed as follows, or to such other
address as any party shall designate in a subsequent notice:
To Buyer: Contact Communications Inc.
0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
Atten: Xxxxxx X. Xxxxxx
Xxxx X. Xxxxx
(000) 000-0000
Fax # (000) 000-0000
With A Copy To: ProNet Inc.
0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
Atten: Xxxx X. Xxxxx
Fax # (000) 000-0000
To Sellers: Sun Paging Communications
% American Mobilphone, Inc.
000 Xxxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Atten: Xx. Xxxx X. Xxxxxxx
With A Copy To: Xxxxxx Wireless, Inc.
K. Xxxxxxx Xxxxxx, Esquire
Vice President & General Counsel
00000 Xxxxxxxxxx Xxxxx, Xxxxx #000
Xx. Xxxxx, Xxxxxxx 00000
Fax # (000) 000-0000
To Depository: Norwest Bank Texas, N.A.
4300 Thanksgiving Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Atten: Xxxxxx Xxxxxx, Vice President
Fax # (000) 000-0000
Any such notice shall be deemed sent when received at the address or fax number
so designated.
e. ALLOCATION OF DEPOSITORY'S FEES. The Undersigned, as among
themselves, agree that all fees and expenses charged by or payable to the
Depository shall be borne fifty percent by the Purchaser and fifty percent by
the Sellers.
f. ALLOCATION OF INDEMNIFICATION LIABILITIES. The Undersigned, as among
themselves, agree that, in the event of any dispute resulting in litigation over
entitlement to or distribution of the Property, the non-prevailing party(ies)
shall bear 100 percent of any and all losses, claims, damages, liabilities and
expenses of the Depository for which the Undersigned may be jointly and
severally liable under the terms of this Agreement.
EXHIBIT J
______________________________________________________________________________
NATIONSBANK DEPOSITORY AGREEMENT-ESCROW
______________________________________________________________________________
THE UNDERSIGNED Contact Communications Inc. ("Purchaser"), Sun Paging
Communications ("Seller"), Xxxxxx Communications Incorporated ("Xxxxxx"),
American Mobilphone, Inc. ("American", collectively with Xxxxxx, the
"Partners"), (collectively, the "Undersigned"), in order to designate
NationsBank of Texas, National Association, (the "Depository") as the
Depository for the Undersigned for the purposes and upon the terms and
conditions herein set forth, do hereby represent and warrant to, and agree with
each other and the Depository, as follows:
1. APPOINTMENT OF THE DEPOSITORY. The Depository is hereby appointed
Depository for the Undersigned with respect to the "Property" as that term is
herein defined.
2. THE PROPERTY. Concurrently with the execution and delivery hereof, the
Undersigned have deposited with the Depository, as custodian and depository, the
items described in Schedule A hereto, or in lieu thereof, have made provision in
paragraph 22 for the deposit of items hereunder (such items being herein
collectively called the "Property"), and direct that same be held and disposed
of by the Depository as herein provided.
3. THE DEPOSITORY'S DUTIES AND AUTHORITY TO ACT.
(a) Except as may be otherwise provided in paragraph 22, in which event
the special instructions in said paragraph 22 shall be controlling, the
Depository shall hold the Property in safekeeping and deliver the same or any
part or parcel thereof, including the interest earned from investments made
pursuant to paragraph 20 hereof, only (i) to one or more of the Undersigned in
accordance with and upon the written instructions of each of the other of the
Undersigned and/or (ii) in accordance with and upon the written instructions of
all the Undersigned.
(b) When instructions from more than one of the Undersigned are required,
such instructions may be given by separate instruments of similar tenor. Any of
the Undersigned may hereafter act through an agent or attorney-in-fact only if
written evidence of authority in form and substance satisfactory to the
Depository is furnished to the Depository and agreed to by the Depository.
(c) The Depository may act upon any written notice, request, waiver,
consent, certificate, receipt, authorization, power of attorney or other
document which it in good faith believes to be genuine.
(d) The Depository shall be deemed to have properly delivered any item of
Property upon (i) placing the item in the United States mail in a suitable
package or envelope with first class prepaid postage affixed, addressed to the
addressee at such addressee's address as set forth in this Agreement or such
other address as the Undersigned shall have furnished to the Depository in
writing; (ii) delivery in person at the Depository's offices; or (iii) delivery
in any other manner pursuant to written instructions of the Undersigned.
(e) In performing its duties under this Agreement, or upon the claimed
failure to perform any of its duties hereunder, the Depository shall not be
liable to anyone for damages, losses or expenses which may be incurred as a
result of the Depository so acting or failing to so act; provided, however, the
Depository shall not be relieved from liability for damages arising out of its
proven gross negligence or willful misconduct under this Agreement. The
Depository shall in no event incur any liability with respect to (i) any action
taken or omitted to be taken in good faith upon advice of legal counsel given
with respect to any questions relating to the duties and responsibilities of the
Depository hereunder or (ii) any action taken or omitted to be taken in reliance
upon any document delivered to the Depository and believed by it to be genuine
and to have been signed or presented by the proper party or parties.
(f) Payment of moneys hereunder shall be made by check or by wire transfer
of immediately available funds in accordance with instructions contained in the
applicable disbursement notice to the Depository.
4. OTHER AGREEMENTS. The Depository is not a party to, nor is it bound
by, nor need it give consideration to the terms or provisions of, any other
agreement or undertaking among the Undersigned or any of them, or between the
Undersigned or any of them and other persons, or any agreement or undertaking
which may be evidenced by or disclosed by the Property, it being the intention
of the parties hereto that the Depository assent to and be obligated to give
consideration only to the terms and provisions hereof. Unless otherwise
provided in paragraph 22, the Depository shall have no duty to determine or
inquire into the happening or occurrence of any event or contingency or the
performance or failure of performance of any of the Undersigned with respect to
arrangements or contracts with each other or with others, the Depository's sole
duty hereunder being to hold the Property and to dispose of and deliver the same
in accordance with instructions given to it as provided in paragraph 3.
5. STANDARD OF CARE.
(a) The Depository undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement and no implied covenants or
obligations shall be read into this Agreement against the Depository.
(b) If the Depository is required by the terms hereof to determine the
occurrence of any event or contingency, the Depository shall, in making such
determination, be liable only for its proven gross negligence or willful
misconduct, as determined in light of all the circumstances, including the time
and facilities available to it in the ordinary conduct of its business. In
determining the occurrence of any such event or contingency the Depository may
request from any of the Undersigned or any other person such reasonable
additional evidence as the Depository in its sole discretion may deem necessary
to determine any fact relating to the occurrence of such event or contingency,
and may at any time inquire of and consult with others, including without
limitation, any of the Undersigned, and the Depository shall not be liable for
any damages resulting from its delay in acting hereunder pending its receipt and
examination of additional evidence requested by it.
(c) Whenever the Depository is required by the terms hereof to take action
upon the occurrence of any event or contingency, the time prescribed for such
action shall in all cases be a reasonable time after written notice received by
the Depository for the happening of such event or contingency, provided however,
that this provision shall not be deemed to limit or reduce the time allowed the
Depository for action as provided in paragraph 5(b).
2
6. LIMITATION ON LIABILITY. The Depository shall not be responsible or
liable to the Undersigned or to any other person in any manner whatsoever for
the sufficiency, correctness, genuineness, effectiveness or validity of any of
the Property, or for the form or execution thereof, or for the identity or
authority of any person executing or depositing the same. If any of the
Undersigned are acting as agent for others, all of the Undersigned represent and
warrant that each such agent is authorized to make and enter into this
Agreement. This Agreement is a personal one between the Undersigned and the
Depository. The Depository is authorized by each of the Undersigned to rely
upon all representations, both actual and implied, of each of the Undersigned
and all other persons relating to this Agreement and/or the Property, including
without limitation representations as to marital status, authority to execute
and deliver this Agreement, notifications, receipts or instructions hereunder,
and relationships among persons, firms, corporations or other entities,
including those authorized to receive delivery hereunder, and the Depository
shall not be liable to any person in any manner by reason of such reliance. The
duties of the Depository hereunder shall be only to the Undersigned, their
respective successors, heirs, assigns, executors and administrators and to no
other person, firm, corporation or other entity whatsoever.
7. TIME OF PERFORMANCE. Whenever under the terms hereof the time for
performance of any provision shall fall on a date which is not a regular
business day of the Depository, the performance thereof on the next
succeeding regular business day of the Depository shall be deemed to be in
full compliance. Whenever time is referred to in this Agreement, it shall be
the time recognized by the Depository in the ordinary conduct of its normal
business transactions.
8. DEATH, DISABILITY, ETC. OF THE UNDERSIGNED. The death, disability,
bankruptcy, insolvency, reorganization or absence of any of the Undersigned
shall not affect or prevent performance by the Depository of its obligations or
its right to rely upon instructions received hereunder. However, in the event
of the death, disability, bankruptcy, insolvency, reorganization or absence of
any of the Undersigned, the Depository (without liability to any of the
Undersigned) may refrain from taking any action required or requested hereunder.
9. EXAMINATION OF THE PROPERTY. Any of the Undersigned may examine the
Property during the regular business hours of the Depository; such examination
shall, however, be permitted only in the presence of an officer of the
Depository.
10. REMEDIES OF THE DEPOSITORY.
(a) As additional consideration for and as an inducement for the Depository
to act hereunder, it is understood and agreed that in the event of any
disagreement between the parties to this Agreement or in the event any other
person or entity claims an interest in the Property or any part thereof, and
such disagreement or claim results in adverse claims and demands being made by
them or any of them in connection with or for any part of the Property, the
Depository shall be entitled, at the option of the Depository, to refuse to
comply with the instructions or demands of the parties to this Agreement, or any
of such parties, so long as such disagreement or adverse claim shall continue.
In such event, the Depository shall not be required to make delivery or other
disposition of the Property.
3
Anything herein to the contrary notwithstanding, the Depository shall not be
or become liable to the Undersigned or any of them for the failure of the
Depository to comply with the conflicting or adverse demands of the
Undersigned or any of such parties or of any other persons or entities
claiming an interest in the Property or any part thereof. The Depository
shall be entitled to refrain and refuse to deliver or otherwise dispose of
the Property or any part thereof or to otherwise act hereunder, as stated
above, unless and until (i) the rights of the parties and all other persons
and entities claiming an interest in the Property have been duly adjudicated
in a court having jurisdiction of the parties and the Property or (ii) the
parties to this Agreement and such other persons and entities have reached an
agreement resolving their differences and have notified the Depository in
writing of such agreement and have provided the Depository with indemnity
satisfactory to it against any liability, claims or damages resulting from
compliance by the Depository with such agreement. In addition to the
foregoing, the Depository shall have the right to tender into the registry or
custody of any court having jurisdiction, any part of or all of the Property.
Upon such tender, the parties hereto agree that the Depository shall be
discharged from all further duties under this Agreement; provided, however,
that the filing of any such legal proceedings shall not deprive the
Depository of its compensation hereunder earned prior to such filing and
discharge of the Depository of its duties hereunder.
(b) While any suit or legal proceeding arising out of or relating to this
Agreement or the Property or the Undersigned is pending, whether the same be
initiated by the Depository or by others, the Depository shall have the right at
its option to stop all further performance of this Agreement and instructions
received hereunder until all differences shall have been resolved by agreement
or until the rights of all parties shall have been fully and finally adjudicated
by the court. For purposes of any suit or legal proceeding arising out of or
relating to this Agreement to which the Depository may be a party, the
Undersigned hereby consent and submit to the jurisdiction of the appropriate
court, whether Federal or state, sitting in Dallas County, Texas. The rights
of the Depository under this paragraph are in addition to all other rights which
it may have by law or otherwise.
11. RELIANCE ON COUNSEL. The Depository may from time to time consult
with legal counsel of its own choosing in the event of any disagreement, or
controversy, or question or doubt as to the construction of any of the
provisions hereof or its duties hereunder, and it shall incur no liability and
shall be fully protected in acting in good faith in accordance with the opinion
or instructions of such counsel. Any such fees and expenses of such legal
counsel shall be considered part of the fees and expenses of the Depository
described below.
12. FEES AND EXPENSES.
(a) The Undersigned hereby jointly and severally agree to pay the
Depository for its ordinary services hereunder the fees determined in accordance
with, and payable as specified in, the Schedule of Fees set forth in Exhibit
"A", attached hereto. In addition, the Undersigned hereby jointly and severally
agree to pay to the Depository its expenses incurred in connection with this
Agreement, including, but not limited to, legal fees and expenses, in the event
the Depository deems it necessary to retain counsel. Such expenses shall be
paid to the Depository within 10 days following receipt by any of the
Undersigned of a written statement setting forth such expenses.
4
(b) The Undersigned jointly and severally agree that in the event any
controversy arises under or in connection with this Agreement or the Property,
or the Depository is made a party to or intervenes in any litigation pertaining
to this Agreement or the Property, to pay to the Depository reasonable
compensation for its extraordinary services and to reimburse the Depository for
all costs and expenses associated with such controversy or litigation,
including, but not limited to, legal fees and expenses.
(c) As security for all fees and expenses of the Depository hereunder and
any and all losses, claims, damages, liabilities and expenses incurred in
connection with the acceptance of appointment hereunder or with the performance
of its obligations under this Agreement and to secure the obligation of the
Undersigned to indemnify the Depository as set forth in paragraph 21 hereof, the
Depository is granted a security interest in and lien upon the Property, which
security interest and lien shall be prior to all other security interests, liens
or claims against the Property or any part thereof. Each of the Undersigned
warrant and agree with the Depository that, unless otherwise expressly set forth
in this Agreement, there is no security interest in the Property or any part
thereof; no financing statement under the Uniform Commercial Code of any
jurisdiction is on file in any jurisdiction claiming a security interest in or
describing, whether specifically or generally, the Property or any part thereof;
and the Depository shall have no responsibility at any time to ascertain whether
or not any security interest exists in the Property or any part thereof or to
file any financing statement under the Uniform Commercial Code of any
jurisdiction with respect to the Property or any part thereof.
(d) The Depository is authorized by the Undersigned to withhold from the
Property, prior to distribution thereof and prior to termination of this
Agreement, all fees and expenses to which the Depository is entitled hereunder.
In addition, in the event any such fees and expenses are not paid to the
Depository on or prior to the date such amounts are due, the Depository is
hereby authorized and directed to pay such amounts owed to it from cash funds
included in the Property or, if no cash funds are then included in the Property,
to sell assets constituting part of the Property for the purpose of paying such
amounts owed to it.
(e) In the event fees and expenses of the Depository are to be paid
pursuant to paragraph 22 hereof, it is understood and agreed by the Undersigned
that such fees and expenses are in addition to those described above and that
such fees and expenses shall be subject to periodic review and modification by
the Depository as determined by the Depository in its sole discretion.
13. EFFECTIVE DATE. The effective date of this Agreement shall be the
date on which it is accepted by the Depository unless otherwise provided in
paragraph 22.
14. TERMINATION AND RESIGNATION. Unless sooner terminated as hereinafter
provided, this Agreement shall terminate without action of any party when all of
the terms hereof shall have been fully performed. Either the Depository or the
Undersigned may terminate this Agreement upon thirty (30) days written notice
(i) signed by the Depository and delivered to each of the Undersigned or (ii)
signed by each of the Undersigned and delivered to the Depository. Upon
termination of this Agreement, the Depository shall deliver the Property in
accordance with the written instructions delivered by the Undersigned pursuant
to paragraph 3(a) hereof. All fees and expenses owed to the Depository
hereunder shall be paid in full prior to such delivery of the Property, and the
Depository is hereby
5
authorized and directed by the Undersigned to withhold release or
distribution of the Property until such time as the Depository has received
payment in full of such fees and expenses. The Depository is authorized and
directed to deduct such fees and expenses from the Property prior to release
or distribution thereof.
15. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and such counterparts shall constitute
and be one and the same instrument.
16. ASSIGNMENT OF INTERESTS. None of the Undersigned shall assign or
attempt to assign or transfer his or its interest hereunder or any part
thereof. Any such assignment or attempted assignment by any one or more of
the Undersigned shall be in direct conflict with this Agreement and the
Depository shall not be bound thereby.
17. AMENDMENTS. This Agreement cannot be amended or modified except by
another agreement in writing signed by all the parties hereto or by their
respective successors in interest.
18. HEADINGS. The paragraph headings contained herein are for convenience
of reference only and are not intended to define, limit or describe the scope or
intent of any provision of this agreement.
19. GOVERNING LAW. This Agreement shall be deemed to have been made and
shall be construed and interpreted in accordance with the laws of the State of
Texas.
20. INVESTMENT OF PROPERTY; WITHHOLDING.
(a) The Depository shall invest cash balances each day in such money
market or other short-term investment funds as shall be specified in writing by
an Authorized Representative on Exhibit "B" [Disclosure and Direction] attached
hereto. Such money market or short-term investment funds may include any open-
end or closed-end management investment trust or investment company registered
under the Investment Company Act of 1940, as amended, for which the Depository
or one of its affiliates acts as investment advisor, custodian, transfer agent,
registrar, sponsor, distributor, manager or otherwise, and any fees paid to the
Depository or its affiliate by such fund shall be in addition to the fees and
expenses owed to the Depository under this Agreement.
(b) The Depository shall not be responsible or liable for determination or
payment of any taxes assessed against the Property or the income therefrom nor
for the preparation or filing of any tax returns other than withholding required
by statute or treaty. Each of the Undersigned agree to provide the Depository
any information necessary to perform any such required withholding and the
Depository shall be entitled to rely on such information. The Depository will
establish the account holding the Property under the TIN of ________________; if
Depository is responsible for tax reporting as set forth in paragraph 22, it
will be rendered under the aforementioned TIN. A W-9 certifying to the party's
withholding status in the form set forth on Exhibit "C" attached hereto will be
completed at closing.
6
(c) The Depository may make any and all investments through its own bond
or investment department. The Depository shall not be held liable or
responsible for the quality or diversity of the assets constituting the Property
or for any loss or depreciation in the value of such assets or any loss
resulting from any investment made by the Depository in accordance with the
terms of this Agreement. If the Depository is required to sell or otherwise
redeem or liquidate any Property prior to its maturity, the Undersigned agree
that the Depository shall not be personally liable for any loss to the Property
(including either principal or income) or other costs incurred as a result of
any such early redemption or liquidation.
21. INDEMNIFICATION AND HOLD HARMLESS. The Undersigned hereby agree to
indemnify and hold the Depository and its directors, employees, officers,
agents, successors and assigns harmless from and against any and all losses,
claims, damages, liabilities and expenses, including without limitation,
reasonable costs of investigation and counsel fees and expenses which may be
imposed on the Depository or incurred by it in connection with its acceptance of
this appointment as the Depository hereunder or the performance of its duties
hereunder. Such indemnity includes, without limitation, all losses, damages,
liabilities and expenses (including counsel fees and expenses) incurred in
connection with any litigation (whether at the trial or appellate levels)
arising from this Escrow Agreement or involving the subject matter hereof. The
indemnification provisions contained in this paragraph 21 are in addition to any
other rights any of the indemnified parties may have by law or otherwise and
shall survive the termination of this Agreement or the resignation or removal of
the Depository.
22. ADDITIONAL TERMS.
SEE EXHIBIT D
7
IN WITNESS WHEREOF, the parties hereto have caused this Depository
Agreement - Escrow to be executed this _____________day of _______________,
199__.
CONTACT COMMUNICATIONS INC. Address
By: 0000 XXX Xxxxxxx
------------------------------------- ---------------------------------
Xxxx X. Xxxxx Xxxxxx, Xxxxx 00000
---------------------------------
Title: Vice President and General Counsel (000) 000-0000 (000) 000-0000
---------------------------------- ---------------------------------
Company TIN: Telephone # Fax #
-----------------------------
SUN PAGING COMMUNICATIONS Address
By:
-------------------------------------- ---------------------------------
---------------------------------
Title:
---------------------------------- ---------------------------------
Company TIN:
--------------------------- Telephone # Fax #
XXXXXX COMMUNICATIONS, INC. Address
By:
------------------------------------- ---------------------------------
---------------------------------
Title:
----------------------------------- ---------------------------------
Company TIN:
----------------------------- Telephone # Fax #
AMERICAN MOBILPHONE, INC. Address
By:
------------------------------------- ---------------------------------
---------------------------------
Title:
----------------------------------- ---------------------------------
Company TIN:
----------------------------- Telephone # Fax #
The Depository hereby acknowledges receipt of the Property described in
Schedule A hereof and hereby accepts the same as Depository hereunder, subject
to the terms and conditions set forth above, this ___________day of __________,
199__.
NationsBank of ___________, National Association,
DEPOSITORY
BY:
---------------------------------------------------
TITLE:
--------------------------------------------------
8
ATTACHMENTS:
Schedule A - Description of Property
Exhibit A - Schedule of Fees
Exhibit B - Disclosure and Direction (Investments)
Exhibit C - Withholding Form
9
SCHEDULE A
DESCRIPTION OF PROPERTY
(Description of the "Property" as that term is defined in paragraph 2 of the
Agreement) In the event the property is other than cash, securities or
negotiable instruments, the following provisions shall apply: (i) Depository
makes no warranty as to the suitability for any particular purpose of the
Property deposited with Depository hereunder, or
(ii) Depository makes no warranty that the facilities of the Depository are
suitable for the deposit of the Property, or (ii) Depository shall not be liable
for any deterioration or destruction of the Property while in the possession of
Depository, except for the gross negligence or willful misconduct of the
Depository, or (iv) Depository has no duty to determine if any Property
deposited hereunder is in fact the property that is required to be deposited
hereunder pursuant to any agreement of the Undersigned.
$50,000.00 CASH
The following person(s) are designated as Authorized Representative as that term
is defined in the Agreement and specimen signatures are shown:
CONTACT COMMUNICATIONS INC.
------------------------------------ ------------------------------------
By: Xxxx X. Xxxxx, Vice President Signature
SUN PAGING COMMUNICATIONS
------------------------------------ ------------------------------------
By: Signature
XXXXXX COMMUNICATIONS, INC.
------------------------------------ ------------------------------------
By: Signature
AMERICAN MOBILPHONE, INC.
------------------------------------ ------------------------------------
By: Signature
10
EXHIBIT A
SCHEDULE OF FEES
$1,800.00
Out of pocket expenses such as, but not limited to, postage, courier, insurance,
long distance telephone, stationery, travel, legal or accounting, etc., will be
billed at cost.
The initial and administration fee are due at closing.
These fees do not include extraordinary services which will be priced according
to time and scope of duties.
It is acknowledged that the Schedule of Fees shown above are acceptable for the
services mutually agreed upon and the Undersigned authorize the Depository to
perform said services.
ACKNOWLEDGED AND AGREED:
SUN PAGING COMMUNICATIONS
------------------------------------------------------
BY:
XXXXXX COMMUNICATIONS, INC.
------------------------------------------------------
BY:
AMERICAN MOBILPHONE, INC.
------------------------------------------------------
BY:
CONTACT COMMUNICATIONS INC.
------------------------------------------------------
BY: Xxxx X. Xxxxx, Vice President and General Counsel
DATE:
------------------------------------------------------
11
EXHIBIT D
22. ADDITIONAL TERMS.
(a) INVESTMENT AND REINVESTMENT. All proceeds, interest and other
payments or distributions made upon or with respect to any investments made
pursuant to the provisions hereof (collectively, the "Accrued Earnings") shall
be reinvested in the manner provided in paragraph 20. As used herein, the term
"Property" shall mean the Deposits (as hereinafter defined) and Accrued
Earnings.
(b) DEPOSIT OF FUNDS. Concurrently herewith and pursuant to the terms
of that certain Asset Purchase Agreement dated as of November 10, 1995, by and
among the Undersigned (the "Asset Purchase Agreement"). Purchaser is depositing
with the Depository the sum of $50,000.00 in cash (the "Deposits").
(c) DISBURSEMENT OF THE PROPERTY. The Property shall be held and
disbursed by the Depository as follows:
(i) UPON THE CLOSING. If the Closing of the transactions
contemplated by the Asset Purchase Agreement occurs on or before June 30,
1996 (the "Target Date"), then upon receipt of written instructions from
the Undersigned, the Depository shall disburse the Deposits to the Seller
as a credit against the purchase price of the assets of the Company as
referenced in the Asset Purchase Agreement and shall disburse the Accrued
Earnings to the Purchaser.
(ii) FAILURE TO CLOSE.
(A) If the Closing of the Transactions contemplated by the Asset
Purchase Agreement does not occur by the Target Date due to Purchaser's
breach of the Asset Purchase Agreement, then, upon receipt of written
instructions from the Undersigned, the Depository shall disburse the
Property to the Seller.
(B) If the Closing of the transactions contemplated by the Asset
Purchase Agreement does not occur by the Target Date due to any reason
other than those set forth in paragraph 22(c)(ii)(A), then upon receipt of
written instructions from the Undersigned, the Depository shall disburse
the Property to the Purchaser.
(d) NOTICES. All notices, consents, or other communications hereunder
shall be in writing and shall be sufficient if delivered personally, sent by
facsimile or similar device, or sent by registered or certified mail, or via
express mail service, postage prepaid, addressed as follows, or to such other
address as any party shall designate in a subsequent notice:
To Purchaser: CONTACT COMMUNICATIONS INC.
0000 XX. Xxxxxxx
Xxxxxx, Xxxxx 00000
Attain: Xxxxxx X. Xxxxxx
Xxxx X. Xxxxx
(000) 000-0000
Fax # (000) 000-0000
With A Copy To: PRONET INC.
0000 XX. Xxxxxxx
Xxxxxx, Xxxxx 00000
Attain: Xxxx X. Xxxxx
Fax # (000) 000-0000
To Seller: SUN PAGING COMMUNICATIONS
% American Mobilphone, Inc.
000 Xxxxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Atten: Xxxx X. Xxxxxxx
With A Copy To: XXXXXX COMMUNICATIONS, INC.
K. Xxxxxxx Xxxxxx, Esquire
Vice President & General Counsel
00000 Xxxxxxxxxx Xxxxx, Xxxxx #000
Xx. Xxxxx, Xxxxxxx 00000
Fax# (000) 000-0000
To Depository: NATIONSBANK OF TEXAS, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000-0000
Atten: Corporate Trust/Xxxxxx Xxxxxxx
Fax #(000) 000-0000
Any such notice shall be deemed sent when received at the address or fax number
so designated.
(e) ALLOCATION OF DEPOSITORY'S FEES. The Undersigned, as among
themselves, agree that all fees and expenses charged by or payable to the
Depository shall be born fifty percent by the Purchaser and fifty percent by the
Seller.
(f) ALLOCATION OF INDEMNIFICATION LIABILITIES. The Undersigned, as among
themselves, agree that, in the event of any dispute resulting in litigation over
entitlement to our distribution of the Property, the non-prevailing party(ies)
shall bear 100 percent of any and all losses, claims, damages, liabilities and
expenses of the Depository for which the Undersigned may be jointly and
severally liable under the terms of this Agreement.
