EXHIBIT 3
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is
entered into this 23rd day of May, 1997, by and among XXXXXX
WIRELESS, INC., a Delaware corporation (the "Company"), PRICE
COMMUNICATIONS CORPORATION, a New York corporation ("Acquiror"),
and PRICE COMMUNICATIONS CELLULAR MERGER CORP., a Delaware
corporation ("Merger Sub").
WHEREAS, the Boards of Directors of the Company, Acquiror
and Merger Sub have each determined that it is fair to, and in
the best interests of their respective stockholders that Merger
Sub, a wholly-owned subsidiary of Acquiror, merge with and into
the Company, pursuant to and subject to the terms and conditions
of this Agreement and the Delaware General Corporation Law
("Delaware Law"); and
WHEREAS, concurrently with the execution of this Agreement
and as an inducement to Acquiror to enter into this Agreement,
Xxxxxx Communications Incorporated, a Delaware corporation
("PCI"), has entered into a voting agreement with Acquiror (the
"Voting Agreement") pursuant to which, among other things, PCI
has agreed to vote its shares of common stock of the Company in
favor of this Agreement, the Merger (as defined below) and the
other transactions contemplated by this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements
set forth in this Agreement, the parties hereto agrees as
follows:
ARTICLE I
THE MERGER
SECTION 1.1. The Merger.
Upon the terms and subject to the conditions set forth in
this Agreement (including approval of the Federal Communications
Commission (the "FCC")), and in accordance with Delaware Law, at
the Effective Time (as defined in Section 1.2) Merger Sub shall
be merged with and into the Company (the "Merger"). As a result
of the Merger, the separate corporate existence of Merger Sub
shall cease and the Company shall continue as the surviving
corporation of the Merger (sometimes referred to herein as the
"Surviving Corporation") and a wholly-owned subsidiary of
Acquiror. The name of the Company shall continue as the name of
the Surviving Corporation.
SECTION 1.2. Effective Time.
At the Closing, the parties hereto shall cause the Merger to
be consummated by filing a certificate of merger (the
"Certificate of Merger") with the Secretary of State of the State
of Delaware, in such form as required by, and executed in
accordance with the relevant provisions of, Delaware Law and in
such form as approved by the Company and Acquiror prior to such
filing (the date and time of the filing of the Certificate of
Merger or the time specified therein being the "Effective Time").
SECTION 1.3. Effect of the Merger.
At the Effective Time, the effect of the Merger shall be as
provided in the applicable provisions of Delaware Law. Without
limiting the generality of the foregoing, and subject thereto, at
the Effective Time, except as otherwise provided herein, all the
rights, privileges, powers and franchises of Merger Sub and the
Company, shall vest in the Surviving Corporation, and all debts,
liabilities and duties of Merger Sub and the Company shall become
the debts, liabilities and duties of the Surviving Corporation.
SECTION 1.4. Certificate of Incorporation; Bylaws.
At the Effective Time, subject to the terms and conditions
of Section 7.8 hereof, (a) the certificate of incorporation of
Merger Sub, as in effect immediately prior to the Effective Time
and as amended by the Certificate of Merger, shall be the
certificate of incorporation of the Surviving Corporation, and
(b) the bylaws of Merger Sub, as in effect immediately prior to
the Effective Time, shall be the bylaws of the Surviving
Corporation.
SECTION 1.5. Directors and Officers.
The directors of Merger Sub (or such other or
additional individuals as Acquiror may designate prior to
Closing) shall be the initial directors of the Surviving
Corporation, each to hold office in accordance with the
certificate of incorporation and bylaws of the Surviving
Corporation; and the officers of the Company shall continue as
the officers of the Surviving Corporation, in each case until
their respective successors are duly elected or appointed and
qualified.
SECTION 1.6. Closing.
Subject to the terms and conditions of this Agreement, the
closing of the Merger (the "Closing") will take place as promptly
as practicable after satisfaction of the latest to occur or, if
permissible, waiver of the conditions set forth in Article VIII
hereof (the "Closing Date"), at the offices of Xxxxx & Xxxxxxx
L.L.P., Columbia Square, 000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000, unless another date or place is agreed to in writing by
the parties hereto.
SECTION 1.7. Subsequent Actions.
If, at any time after the Effective Time, the Surviving
Corporation shall consider or be advised that any deeds, bills of
sale, assignments, assurances or any other actions or things are
necessary or desirable to continue in, vest, perfect or confirm
of record or otherwise in the Surviving Corporation its right,
title or interest in, to or under any of the rights, properties,
privileges, franchises or assets of either of its constituent
corporations acquired or to be acquired by the Surviving
Corporation as a result of, or in connection with, the Merger or
otherwise to carry out this Agreement, the officers and directors
of the Surviving Corporation shall be directed and authorized to
execute and deliver, in the name and on behalf of either of such
constituent corporations, all such deeds, bills of sale,
assignments and assurances and to take and do, in the name and on
behalf of each of such corporations or otherwise, all such other
actions and things as may be necessary or desirable to vest,
perfect or confirm any and all right, title and interest in, to
and under such rights, properties, privileges, franchises or
assets in the Surviving Corporation or otherwise to carry out
this Agreement.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
SECTION 2.1. Conversion of Securities.
At the Effective Time, by virtue of the Merger and without
any action on the part of Acquiror, Merger Sub, the Company or
the holders of any of the following securities:
(a) Company Common Stock. Subject to the other provisions
of this Section 2.1, each share of (i) Class A common stock, par
value $.01 per share, of the Company ("Class A Common Stock"),
issued and outstanding immediately prior to the Effective Time
(excluding any shares described in Sections 2.1(b) and (c) and
any Dissenting Shares (as hereinafter defined)), and (ii) Class B
common stock, par value $.01 per share, of the Company ("Class B
Common Stock"; together with the Class A Common Stock, the
"Common Stock"), shall be converted into the right to receive
Seventeen Dollars and Fifty Cents ($17.50) in cash, without
interest (the "Per Share Amount"). All such shares of Common
Stock shall cease to be outstanding and shall automatically be
canceled and retired and shall cease to exist, and each
certificate previously evidencing any such shares shall
thereafter represent only the right to receive the Merger
Consideration as described below. The holders of certificates
previously evidencing such shares of Common Stock outstanding
immediately prior to the Effective Time shall cease to have any
rights with respect to such shares of Common Stock, except as
otherwise provided herein or by law. Each such certificate
previously evidencing such shares of Common Stock shall be
exchanged for the Per Share Amount multiplied by the number of
shares previously evidenced by the canceled certificate upon the
surrender of such certificate in accordance with the provisions
of Section 2.2, without interest;
(b) Acquiror-Owned Shares. All shares of capital stock of
the Company owned, directly or indirectly, by Acquiror, Merger
Sub or any Acquiror Subsidiary (as defined in Section 5.1) shall
be canceled and extinguished without any conversion thereof and
no cash shall be delivered or deliverable in exchange therefor;
(c) Treasury Stock. All shares of capital stock of the
Company held in the treasury of the Company immediately prior to
the Effective Time shall be canceled and extinguished without any
conversion thereof and no cash shall be delivered or deliverable
in exchange therefor; and
(d) Merger Sub Stock. Each share of common stock, par
value $.01 per share, of Merger Sub issued and outstanding
immediately prior to the Effective Time shall be converted into
and exchanged for one (1) duly and validly issued, fully paid and
nonassessable share of common stock of the Surviving Corporation.
SECTION 2.2. Payment.
(a) Paying Agent. As of the Effective Time, Acquiror
shall, on behalf of Merger Sub, deposit with a bank theretofore
designated by the Company and Acquiror (the "Paying Agent"), for
the benefit of the holders of shares of Common Stock (excluding
any shares described in Sections 2.1(b) and (c) and any
Dissenting Shares), for payment in accordance with this Article
II, through the Paying Agent, cash in an amount equal to the Per
Share Amount multiplied by the number of shares of Common Stock
outstanding immediately prior to the Effective Time (excluding
any shares described in Sections 2.1(b) and (c) and any
Dissenting Shares) (such cash being hereinafter referred to as
the "Payment Fund"). Acquiror shall cause the Paying Agent,
pursuant to irrevocable instructions, to deliver the cash
contemplated to be paid pursuant to Section 2.1(a) out of the
Payment Fund. The Payment Fund shall not be used for any other
purpose.
(b) Payment Procedures. Promptly after the Effective Time,
Acquiror shall cause the Paying Agent to mail to each record
holder, as of the Effective Time, of an outstanding certificate
(each a "Certificate" and collectively, the "Certificates") that
immediately prior to the Effective Time evidenced outstanding
shares of Common Stock (excluding any shares described in
Sections 2.1(b) and (c) and any Dissenting Shares), a form letter
of transmittal and instructions for use in effecting the
surrender of the Certificates for payment therefor. Upon
surrender to the Paying Agent of a Certificate, together with
such letter of transmittal duly executed, and any other required
documents, the holder of such Certificate shall be entitled to
receive in exchange therefor the consideration set forth in
Section 2.1(a) (the "Merger Consideration"), and such Certificate
shall forthwith be canceled. No interest will be paid or accrued
on the cash payable upon the surrender of the Certificates.
Until surrendered in accordance with the provisions of this
Section 2.2, each Certificate shall represent for all purposes
only the right to receive the consideration set forth in Section
2.1(a), without any interest thereon.
(c) No Further Rights in Common Stock. All cash paid upon
conversion of the shares of Common Stock in accordance with the
terms of this Article II, and all cash paid pursuant to Section
2.5, shall be deemed to have been paid in full satisfaction of
all rights pertaining to such shares of Common Stock.
(d) Termination of Payment Fund. Any portion of the
Payment Fund that remains undistributed to the holders of Common
Stock for one hundred eighty (180) days after the Effective Time
shall be delivered to Acquiror, upon demand, and any holders of
Common Stock that have not theretofore complied with this Article
II shall thereafter look only to the Surviving Corporation and
Acquiror for the Merger Consideration to which they are entitled.
(e) No Liability. Neither Acquiror nor the Surviving
Corporation shall be liable to any holder of shares of Common
Stock for any cash delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law.
(f) Lost, Stolen or Destroyed Certificates. In the event
any Certificate evidencing shares of Common Stock shall have been
lost, stolen or destroyed, upon the making of an affidavit
setting forth that fact by the person claiming such lost, stolen
or destroyed Certificate(s) and granting a reasonable indemnity
against any claim that may be made against Acquiror or the Paying
Agent with respect to such Certificate(s), Acquiror shall cause
the Paying Agent to pay to such person the Merger Consideration
with respect to such lost, stolen or destroyed Certificate(s).
SECTION 2.3. Company Options; Stock Purchase Plan.
(a) Company Options. Immediately prior to the Effective
Time, (i) each outstanding stock option to purchase shares of
Class A Common Stock (a "Plan Option") granted under the
Company's 1995 Stock Option Plan and 1995 Directors' Stock Option
Plan, each as amended to the date of this Agreement
(collectively, the "Company Stock Option Plans"), and (ii) each
phantom option to purchase shares of Class A Common Stock
described on Schedule 3.3 hereto (a "Phantom Option"; together
with the Plan Options, the "Options"), whether or not any such
Options are exercisable, shall be terminated by the Company, and
Acquiror shall, on behalf of Merger Sub, pay to the holder
thereof at the Effective Time, in consideration for such
termination, an amount in cash equal to the excess, if any, of
the Per Share Amount over the per share exercise price of such
Option, multiplied by the number of shares of Class A Common
Stock into which the Option remains unexercised. Any such
payment shall be subject to all applicable federal, state and
local tax withholding requirements. The Company shall terminate
the Company Stock Option Plans as of the Effective Time, and take
all such action as is necessary to terminate the Options as of
the Effective Time, so that on and after the Effective Time no
holder of an Option shall have any option to purchase shares of
Class A Common Stock or any other equity interest in the Company
under the Company Stock Option Plans or the Phantom Option
agreements.
(b) Employee Stock Purchase Plan. Effective as of the
Effective Time, the Company's 1995 Employee Stock Purchase Plan
(the "Employee Stock Purchase Plan") shall be terminated and the
then applicable Payroll Deduction Period (as defined in the
Employee Stock Purchase Plan) shall be deemed to have ended on
the last trading day of the Class A Common Stock immediately
prior to the Effective Time. At the Effective Time, Acquiror
shall, on behalf of Merger Sub, pay to each Company employee who
is a participant in the Employee Stock Purchase Plan as of the
Effective Time, an amount in cash equal to the Per Share Amount
multiplied by the number of shares of Class A Common Stock which
the accumulated funds in such employee's account would have been
entitled to purchase under the terms of the Employee Stock
Purchase Plan as of the end of such Payroll Deduction Period.
Such payments shall be deemed to satisfy all obligations of the
Company and the Surviving Corporation to the participants in the
Employee Stock Purchase Plan. Such payments shall be subject to
all applicable federal, state and local tax withholding
requirements. All funds in the accounts of the participants as
of the Effective Time after such payments, shall belong to and be
disbursed in accordance with the instructions of Acquiror. The
Company shall terminate the Employee Stock Purchase Plan as of
the Effective Time so that on and after the Effective Time no
former participant in the Employee Stock Purchase Plan shall have
any right to purchase shares of Class A Common Stock or any other
equity interest in the Company under the Employee Stock Purchase
Plan.
(c) Non-Employee Director Stock Purchase Plan. Effective
as of the Effective Time, the Company's 1995 Non-Employee
Director Stock Purchase Plan (the "Director Stock Purchase Plan";
together with the Employee Stock Purchase Plan, the "Company
Stock Purchase Plans"), shall be terminated and the then
applicable Accumulation Period (as defined in the Director Stock
Purchase Plan) shall be deemed to have ended on the last trading
day of the Class A Common Stock immediately prior to the
Effective Time. At the Effective Time, Acquiror shall, on behalf
of Merger Sub, pay to each member of the Company's Board of
Directors who is a participant in the Director Stock Purchase
Plan as of the Effective Time, an amount in cash equal to the Per
Share Amount multiplied by the number of shares of Class A Common
Stock which the accumulated funds in such director's account
would have been entitled to purchase under the terms of the
Director Stock Purchase Plan as of the end of such Accumulation
Period. Such payments shall be deemed to satisfy all obligations
of the Company and the Surviving Corporation to the participants
in the Director Stock Purchase Plan. Such payments shall be
subject to all applicable federal, state and local tax
withholding requirements. All funds in the accounts of the
participants as of the Effective Time after such payments, shall
belong to and be disbursed in accordance with the instructions of
Acquiror. The Company shall terminate the Director Stock
Purchase Plan as of the Effective Time so that on and after the
Effective Time no former participant in the Director Stock
Purchase Plan shall have any right to purchase shares of Class A
Common Stock or any other equity interest in the Company under
the Director Stock Purchase Plan.
SECTION 2.4. Stock Transfer Books.
At the Effective Time, the stock transfer books of the
Company with respect to all shares of capital stock of the
Company shall be closed and no further registration of transfers
of such shares of capital stock shall thereafter be made on the
records of the Company. On or after the Effective Time, any
Certificates for shares of Common Stock (excluding any shares
described in Sections 2.1(b) and (c) and Dissenting Shares)
presented to the Paying Agent, the Surviving Corporation or
Acquiror for any reason shall be converted into the Merger
Consideration.
SECTION 2.5. Dissenting Shares.
Notwithstanding any other provisions of this Agreement to
the contrary, shares of Class A Common Stock that are issued and
outstanding immediately prior to the Effective Time and that are
held by stockholders who shall not have voted in favor of the
Merger or consented thereto in writing and who shall have
demanded properly in writing appraisal for such shares in
accordance with Section 262 of Delaware Law (collectively, the
"Dissenting Shares") shall not be converted into or represent the
right to receive the Merger Consideration. Such stockholders
shall be entitled to receive payment of the appraised value of
such shares of Class A Common Stock held by them in accordance
with the provisions of such Section 262, except that all
Dissenting Shares held by stockholders who shall have failed to
perfect or who effectively shall have withdrawn or lost their
rights to appraisal of such shares of Class A Common Stock under
such Section 262 shall thereupon be deemed to have been converted
into and to have become exchangeable, as of the Effective Time,
for the right to receive, without any interest thereon, the
Merger Consideration, upon surrender, in the manner provided in
Section 2.2, of the certificate or certificates that formerly
evidenced such shares of Class A Common Stock.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Acquiror and
Merger Sub as follows:
SECTION 3.1. Organization and Qualification; Subsidiaries.
(a) The Company and each Subsidiary (as defined below) of
the Company (each a "Company Subsidiary" and collectively, the
"Company Subsidiaries") is a corporation or partnership duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its organization. The Company and each
Company Subsidiary is duly qualified to conduct its business, and
is in good standing, in each jurisdiction where the character of
its properties owned, operated or leased or the nature of its
activities makes such qualification necessary, except for such
failure which would not have a Company Material Adverse Effect
(as defined below). The Company and each Company Subsidiary has
the requisite power and authority and any necessary governmental
authority, franchise, license or permit to own, operate, lease
and otherwise to hold and operate its assets and properties and
to carry on the businesses as now being conducted, except for
such failures which would not in the aggregate have a Company
Material Adverse Effect. The Company has no Subsidiaries (as
defined below) or any equity or similar interest in any entity
other than those listed in Schedule 3.1. As used herein, the
term "Company Material Adverse Effect" means any material adverse
effect on the business, assets, financial condition or results of
operations of the Company and the Company Subsidiaries taken as a
whole.
(b) For purposes of this Agreement, a "Subsidiary" of any
person means any corporation, partnership, joint venture or other
legal entity of which such person (either alone or through or
together with any other Subsidiary) (i) owns, directly or
indirectly, fifty percent (50%) or more of the stock, partnership
interests or other equity interests the holders of which are
generally entitled to vote for the election of the board of
directors or other governing body of such corporation,
partnership, joint venture or other legal entity; or (ii)
possesses, directly or indirectly, control over the direction of
management or policies of such corporation, partnership, joint
venture or other legal entity (whether through ownership of
voting securities, by agreement or otherwise).
SECTION 3.2. Certificate of Incorporation and Bylaws.
The Company has heretofore made available to Acquiror a
complete and correct copy of the certificate or articles of
incorporation and the bylaws of the Company and each Company
Subsidiary that is a corporation, and a correct copy of the
partnership agreement for each Company Subsidiary that is a
partnership, each as amended to date. Each such certificate or
articles of incorporation, bylaws and partnership agreement is in
full force and effect. Neither the Company nor any Company
Subsidiary is in violation of any of the provisions of its
respective certificate or articles of incorporation, bylaws,
partnership agreement or other organizational document.
SECTION 3.3. Capitalization.
The authorized capital stock of the Company consists, as of
the date of this Agreement, of: (a) seventy-three million
(73,000,000) shares of Class A Common Stock, of which ten million
five hundred nineteen thousand six hundred and eighty-one
(10,519,681) shares are issued and outstanding; (b) eighteen
million (18,000,000) shares of Class B Common Stock, of which
seventeen million two hundred ninety-three thousand five hundred
and seventy-eight (17,293,578) shares are issued and outstanding;
and (c) ten million (10,000,000) shares of preferred stock, par
value $.01 per share, of which no shares are issued and
outstanding. One million nine hundred thousand (1,900,000)
shares of Class A Common Stock have been reserved for issuance
upon the exercise of Plan Options granted under the Company Stock
Option Plans, of which seven hundred forty-five thousand eight
hundred and thirty-four (745,834) shares are issuable upon the
exercise of Plan Options outstanding under the Company Stock
Option Plans as of the date hereof. The Phantom Options assume
the issuance of twenty thousand (20,000) shares of Class A Common
Stock upon exercise thereof. One hundred sixty thousand
(160,000) shares of Class A Common Stock are reserved for
issuance under the Company's 1995 Employee Stock Purchase Plan
and twenty-five thousand (25,000) shares of Class A Common Stock
are reserved for issuance under the Company's 1995 Non-Employee
Director Stock Purchase Plan. Seventeen million two hundred
ninety-three thousand five hundred and seventy-eight (17,293,578)
shares of Class A Common Stock are reserved for purposes of
effecting conversions of Class B Common Stock into Class A Common
Stock. Since December 31, 1996, no shares of Class A Common
Stock or Class B Common Stock have been issued, except for shares
of Class A Common Stock issued upon the exercise of options
granted under the Company's Stock Option Plans and shares of
Class A Common Stock issued pursuant to the Company's Stock
Purchase Plan. Except as set forth in Schedule 3.3, there are no
options, warrants or other rights, agreements, arrangements or
commitments of any character relating to the issued or unissued
capital stock of the Company or any Company Subsidiary or
obligating the Company or any Company Subsidiary to issue or sell
any shares of capital stock of, or other equity interests in the
Company or any Company Subsidiary. Except as set forth in
Schedule 3.3, there are no outstanding contractual obligations of
the Company to repurchase, redeem or otherwise acquire any shares
of its capital stock or make any material investment (in the form
of a loan, capital contribution or otherwise) in any other
person. All of the issued and outstanding shares of Class A
Common Stock and Class B Common Stock have been duly authorized
and validly issued and are fully paid and nonassessable and not
subject to preemptive rights. Except as set forth in Schedule
3.3, with respect to each Company Subsidiary that is a
corporation, all of the outstanding shares of capital stock of
such Company Subsidiary have been duly authorized and validly
issued and are fully paid and nonassessable. Except as set forth
in Schedule 3.3, with respect to each Company Subsidiary that is
a partnership, all of the partnership interests owned by the
Company, and with respect to each Company Subsidiary that is a
corporation, all of the outstanding shares of capital stock owned
by the Company, are owned by the Company free and clear of any
liens, security interests, pledges, agreements, options, rights,
claims, charges or encumbrances (the "Encumbrances"). As of the
date hereof, the only outstanding indebtedness for borrowed money
of the Company and the Company Subsidiaries is as set forth in
Schedule 3.3 and all such indebtedness is prepayable in full
without premium or penalty in accordance with its terms.
SECTION 3.4. Authority.
The Company has the necessary corporate power and authority
to enter into this Agreement and subject to obtaining any
necessary stockholder approval of the Merger, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this
Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action and no other
corporate proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the transactions
contemplated hereby, other than the approval of this Agreement by
the stockholders of the Company in accordance with Delaware Law.
This Agreement has been duly executed and delivered by the
Company and, assuming the due authorization, execution and
delivery by Acquiror and Merger Sub, constitutes a legal, valid
and binding obligation of the Company, enforceable in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
similar laws of general applicability relating to or affecting
creditors' rights generally and by the application of general
principles of equity.
SECTION 3.5. No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the
Company do not, and the performance by the Company of its
obligations under this Agreement will not, subject to compliance
with the requirements set forth in Section 3.5(b) below, (i)
conflict with or violate the certificate or articles of
incorporation, bylaws, partnership agreement or other
organizational document of the Company or any Company Subsidiary,
(ii) conflict with or violate any law, statute, ordinance, rule,
regulation, order, judgment or decree applicable to the Company
or any Company Subsidiary or by which any of their respective
properties is bound or affected, (iii) result in any breach of or
constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation
of, or result in the creation of an Encumbrance on any of the
properties or assets of the Company or any Company Subsidiary
pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument
or obligation to which the Company or any Company Subsidiary is a
party or by which the Company, any Company Subsidiary or any of
their respective properties or assets is bound or affected, or
(iv) result in any material breach of or constitute a material
default (or an event which with notice or lapse of time or both
would become a material default) or give rise to any material
rights to other parties under any Material Contract described in
Section 3.12(a)(i), except, in the case of clauses (ii) and (iii)
above for any such conflicts, violations, breaches, defaults or
other alterations or occurrences that in the aggregate (A) would
not prevent or delay consummation of the Merger in any material
respect, or otherwise prevent the Company from performing its
obligations under this Agreement in any material respect, and (B)
would not have a Company Material Adverse Effect.
(b) The execution and delivery of this Agreement by the
Company does not, and the performance of this Agreement by the
Company will not, require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or
regulatory authority, domestic or foreign (each a "Governmental
Entity"), except (i) for (A) applicable requirements, if any, of
the Securities Exchange Act of 1934, as amended, (the "Exchange
Act"), state takeover laws, the exchange on which the Company's
securities are traded, the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), the
Communications Act of 1934, as amended, together with the rules,
regulations and published decisions of the FCC (collectively, the
"Communications Act"), (B) applicable requirements, if any, of
the consents, approvals, authorizations or permits described in
Schedule 3.5, and (C) filing and recordation of appropriate
merger documents as required by Delaware Law and (ii) where
failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not in
the aggregate prevent or delay consummation of the Merger in any
material respect, or otherwise prevent the Company from
performing its obligations under this Agreement in any material
respect, and would not in the aggregate have a Company Material
Adverse Effect.
SECTION 3.6. SEC Filings; Financial Statements.
(a) The Company has filed all forms, reports, statements
and other documents required to be filed with the Securities and
Exchange Commission (the "SEC") since March 21, 1995, and has
heretofore made available to Acquiror, in the form filed with the
SEC since such date, together with any amendments thereto, its
(i) Annual Reports on Form 10-K, (ii) all Quarterly Reports on
Form 10-Q, (iii) all proxy statements relating to meetings of
stockholders (whether annual or special), (iv) all reports on
Form 8-K, and (v) all other reports or registration statements
filed by the Company (collectively, the "Company SEC Reports").
As of their respective filing dates the Company SEC Reports (i)
complied as to form in all material respects with the
requirements of the Exchange Act and the Securities Act of 1933,
as amended (the "Securities Act") and (ii) did not at the time
they were filed contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) The financial statements, including all related notes
and schedules, contained in the Company SEC Reports (or
incorporated by reference therein) fairly present the
consolidated financial position of the Company and the Company
Subsidiaries as at the respective dates thereof and the
consolidated results of operations and cash flows of the Company
and the Company Subsidiaries for the periods indicated in
accordance with generally accepted accounting principles applied
on a consistent basis throughout the periods involved (except as
may be noted therein) and subject in the case of interim
financial statements to normal year-end adjustments.
SECTION 3.7. Absence of Certain Changes or Events.
Except as disclosed in the Company SEC Reports filed prior
to the date of this Agreement or as set forth in Schedule 3.7,
since December 31, 1996, the Company and the Company Subsidiaries
have not incurred any material liability, except in the ordinary
course of the businesses consistent with their past practices,
and there has not been any change in the business, financial
condition or results of operations of the Company or any of the
Company Subsidiaries or the occurrence of any other event, which
has had, or is reasonably likely to have, a Company Material
Adverse Effect, and the Company and the Company Subsidiaries have
conducted their respective businesses in the ordinary course
consistent with their past practices.
SECTION 3.8. Absence of Litigation.
Except as set forth in Schedule 3.8, as of the date hereof
there are (a) no claims, actions, suits, investigations, or
proceedings pending or, to the Company's knowledge, threatened
against the Company or any of the Company Subsidiaries before any
court, administrative, governmental, arbitral, mediation or
regulatory authority or body, domestic or foreign, that (i) if
adversely determined would individually involve the payment of
more than One Hundred Thousand Dollars ($100,000) by the Company
or any Company Subsidiary, (ii) if adversely determined would
individually or in the aggregate be reasonably likely to have a
Company Material Adverse Effect, (iii) challenge or seek to
prevent, enjoin, alter or materially delay the transactions
contemplated hereby, or (iv) seek material injunctive relief
against the Company or any Company Subsidiary, and (b) no
material judgments, decrees, injunctions or orders of any
Governmental Entity or arbitrator outstanding against the Company
or any Company Subsidiary.
SECTION 3.9. Licenses and Permits; Compliance with Laws.
The Company and the Company Subsidiaries hold all permits,
licenses and approvals (none of which has been modified or
rescinded and all of which are in full force and effect) from all
Governmental Entities (collectively, the "Permits") necessary for
the Company and the Company Subsidiaries to own, lease and
operate their respective properties and to carry on their
respective businesses as now being conducted, except for the
Permits for which the failure to obtain would not have a Company
Material Adverse Effect. The businesses of the Company and the
Company Subsidiaries are not being conducted in violation of any
applicable law, statute, ordinance, regulation, judgment,
Permits, order, decree, concession, grant or other authorization
of any Governmental Entity, except for violations that would not
be reasonably likely to have a Company Material Adverse Effect.
SECTION 3.10. Taxes.
Except as set forth in Schedule 3.10, the Company and the
Company Subsidiaries have prepared and filed on a timely basis
with all appropriate Governmental Entities all material returns
in respect of taxes that they are required to file on or prior to
the Effective Time or by the date therefor including extensions,
and all such returns are correct and complete in all material
respects. Except as set forth in Schedule 3.10, the Company and
the Company Subsidiaries have paid in full all taxes due on or
before the Effective Time and, in the case of taxes accruing on
or before the Effective Time that are not due on or before the
Effective Time, the Company has made adequate provision in its
books and records and financial statements for such payment.
Except as set forth in Schedule 3.10, the Company and the Company
Subsidiaries have withheld from each payment made to any of its
present or former employees, officers and directors all amounts
required by law to be withheld and has, where required, remitted
such amounts within the applicable periods to the appropriate
Governmental Entities. In addition, except as set forth in
Schedule 3.10, (a) there are no assessments of the Company or any
Company Subsidiary with respect to taxes that have been issued
and are outstanding; (b) no Governmental Entity has examined or
audited the Company or any Company Subsidiary in respect of
taxes; (c) neither the Company nor any Company Subsidiary has
executed or filed any agreement extending the period of
assessment or collection of any taxes; and (d) neither the
Company nor any Company Subsidiary has received written
notification from any Governmental Entity of its intention to
commence any audit or investigation. Except as set forth in
Schedule 3.10, neither the Company nor any Company Subsidiary is
a party to, is bound by or has any obligation under any tax
sharing or tax indemnification agreement, provision or
arrangement, whether formal or informal, and no power of
attorney, which is currently in effect, has been granted with
respect to any matter relating to taxes of the Company or any
Company Subsidiary. Except as set forth in Schedule 3.10,
neither the Company nor any Company Subsidiary is presently
required or will be required to include any adjustment in taxable
income under Section 481 of the Internal Revenue Code of 1986, as
amended (the "Code"), (or any similar provision of the tax laws
of any jurisdiction) as a result of any change in method of
accounting or otherwise. Except as set forth in Schedule 3.10,
neither the Company nor any Company Subsidiary has entered into
any "intercompany transaction" as to which any item of deferred
gain or loss has not been restored, and no "excess loss account"
exists with respect to the stock of any Company Subsidiary, as
those terms are defined in the Treasury Regulations issued under
Section 1504 of the Code. For the purpose of this Agreement, the
term "tax" (including, with correlative meaning, the terms
"taxes" and "taxable") shall include except where the context
otherwise requires, all federal, state, local and foreign income,
profits, franchise, gross receipts, payroll, sales, employment,
use, property, withholding, excise, occupancy and other taxes,
duties or assessments of any nature whatsoever, together with all
interest, penalties and additions imposed with respect to such
amounts.
SECTION 3.11. Intellectual Property.
Except as set forth in Schedule 3.11, the Company or one of
the Company Subsidiaries owns or possesses all rights to use of
the service marks, copyrights, franchises, trademarks, trade
names, jingles, slogans, logotypes and other similar intangible
assets (the "Intellectual Property") maintained, owned, used,
held for use or otherwise held by the Company and the Company
Subsidiaries, and all of the rights, benefits and privileges
associated therewith material to the conduct of the business of
the Company and the Company Subsidiaries as currently conducted.
To the knowledge of the Company, neither the Company nor any
Company Subsidiary is infringing upon any Intellectual Property
right or other legally protectable right of another. To the
knowledge of the Company, no person is materially infringing upon
any Intellectual Property right of the Company or any Company
Subsidiary.
SECTION 3.12. Material Contracts.
(a) Schedule 3.12 sets forth a complete and correct
list, as of the date of this Agreement, of all agreements of the
following type to which the Company or a Company Subsidiary is a
party or may be bound (collectively, the "Material Contracts"):
(i) agreements filed as an exhibit to the Company SEC Reports and
each agreement that would have been required to be filed as an
exhibit to the Company SEC Reports had such agreement been
entered into as of the date of filing any such SEC Report; (ii)
employment, severance, termination, consulting and retirement
agreements; (iii) loan agreements, indentures, letters of credit,
mortgages, notes and other debt instruments evidencing
indebtedness in excess of Five Hundred Thousand Dollars
($500,000); (iv) agreements that require aggregate future
payments to or by the Company or any Company Subsidiary of more
than Five Hundred Thousand Dollars ($500,000) (other than
purchase orders and advertising sales contracts entered into in
the ordinary course of business); (v) agreements containing any
"change of control" provisions which, if triggered, would involve
payments by the Company or any Company Subsidiary in excess of
Two Hundred Fifty Thousand Dollars ($250,000) or other material
rights or obligations; (vi) material agreements with any key
employee, director, officer, or person known to the Company to be
a direct or indirect stockholder of the Company; (vii) agreements
prohibiting the Company or any Company Subsidiary from engaging
or competing in any line of business or limiting such
competition; (viii) except for the partnership agreements of the
Company Subsidiaries, any joint venture, partnership and similar
agreements involving a sharing of profits; (ix) acquisition or
divestiture agreements relating to the (A) sale of assets or
stock of the Company or any Company Subsidiary (other than sales
of inventory in the ordinary course of business) or (B) the
purchase of assets or stock of any other person (other than the
purchase of inventory in the ordinary course of business and
acquisitions of additional interests in Company Subsidiaries
involving payments by the Company of less than Five Hundred
Thousand Dollars ($500,000) in the aggregate); (x) brokerage,
finder's or financial advisory agreements; (xi) guarantees of
indebtedness for borrowed money of any person (other than a
Company Subsidiary); (xii) interconnection agreements and switch
sharing agreements; and (xiii) agreements under which the Company
or any Company Subsidiary manages a cellular system of any third
party.
(b) Except as set forth in Schedule 3.12, all the
Material Contracts are valid and in full force and effect on the
date hereof except to the extent they have previously expired in
accordance with their terms, and neither the Company nor any
Company Subsidiary has (or has any knowledge that any other party
thereto has) violated any provision of, or committed or failed to
perform any act which with or without notice, lapse of time or
both would constitute a default under the provisions of, any
Material Contract, except for defaults which would not in the
aggregate reasonably be expected to have a Company Material
Adverse Effect. True and complete copies of all Material
Contracts have been delivered to Acquiror or made available for
inspection.
SECTION 3.13. Employee Benefit Plans.
(a) Schedule 3.13 sets forth a list of all of the pension,
retirement, profit-sharing, deferred compensation, stock option,
employee stock ownership, severance pay, vacation, bonus or other
material incentive plans, all other material written employee
programs, arrangements or agreements and all other material
employee benefit plans or fringe benefit plans, including,
without limitation, all "employee benefit plans" as that term is
defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), currently adopted,
maintained by, sponsored in whole or in part by, or contributed
to by the Company or for which the Company could incur a
liability or any entity required to be aggregated with the
Company (each, a "Commonly Controlled Entity") pursuant to
Section 414 of the Code for the benefit of present and former
employees or directors of the Company and of each Company
Subsidiary or their beneficiaries, or providing benefits to such
persons in respect of services provided to any such entity
(collectively, the "Benefit Plans"). Any of the Benefit Plans
which is an "employee pension benefit plan", as that term is
defined in Section 3(2) of ERISA, is referred to herein as an
"ERISA Plan".
(b) Each of the Benefit Plans intended to be "qualified"
within the meaning of Section 401(a) or 501 of the Code has been
determined by the Internal Revenue Service to be so qualified and
to the Company's knowledge, no circumstances exist that could
reasonably be expected by the Company to result in the revocation
of any such determination. Each of the Benefit Plans is in
compliance with their terms and the applicable terms of ERISA and
the Code and any other applicable laws, rules and regulations the
breach or violation of which could result in a material liability
to the Company or any Commonly Controlled Entity.
(c) No ERISA Plan which is a defined benefit pension plan
has any "unfunded current liability", as that term is defined in
Section 302(d)(8)(A) of ERISA, and the present fair market value
of the assets of any such plan equals or exceeds the plan's
"benefit liabilities", as that term is defined in Section
4001(a)(16) of ERISA, when determined under actuarial factors
that would apply if the plan terminated in accordance with all
applicable legal requirements.
(d) Except as disclosed in Schedule 3.13, no Benefit Plan
is or has been a multiemployer plan within the meaning of Section
3(37) of ERISA (a "Multiemployer Plan"). Neither the Company nor
any Commonly Controlled Entity has completely or partially
withdrawn from any Multiemployer Plan. No termination liability
to the Pension Benefit Guaranty Corporation or withdrawal
liability to any Multiemployer Plan that is material in the
aggregate has been or is reasonably expected to be incurred with
respect to any Multiemployer Plan by the Company or any Commonly
Controlled Entity.
(e) The Company has made available to Acquiror complete
copies, as of the date hereof, of all of the Benefit Plans that
have been reduced to writing, together with all documents
establishing or constituting any related trust, annuity contract,
insurance contract or other funding instrument. The Company has
made available to Acquiror complete copies of current plan
summaries, employee booklets, personnel manuals and other
material documents or written materials concerning the Benefit
Plans that are in the possession of the Company as of the date
hereof.
(f) To the Company's knowledge, except as set forth in
Schedule 3.13 and except for claims for benefits in the ordinary
course of business, no claim, lawsuit, arbitration or other
action has been threatened or instituted against any Benefit
Plan.
(g) Except as set forth in Schedule 3.13, Schedule 7.9 or
as otherwise contemplated by the terms of this Agreement, the
consummation of the transactions contemplated by this Agreement
will not give rise to any liability, including, without
limitation, liability for severance pay or termination pay, or
accelerate the time of payment or vesting or increase the amount
of compensation or benefits due to any employee, director or
stockholder of the Company (whether current, former, or retired)
or their beneficiaries solely by reason of such transactions. No
amounts payable under any Benefit Plan will fail to be deductible
for federal income tax purposes by virtue of Section 280G or
162(m) of the Code.
(h) Except as set forth in Schedule 3.13 or Schedule 7.9,
neither the Company nor any Company Subsidiary maintains,
contributes to, or in any way provides for any benefits of any
kind (other than under Section 4980B of the Code, the Federal
Social Security Act, or a plan qualified under Section 401(a) of
the Code) to any current or future retiree or terminee.
(i) Neither the Company, any Company Subsidiary nor any
Commonly Controlled Entity has (or could incur) any liability
under Title IV of ERISA.
SECTION 3.14. Properties; Assets.
Except as set forth in Schedule 3.14, the Company or one of
the Company Subsidiaries (a) has good and marketable title to all
the properties and assets reflected in the latest consolidated
balance sheet of the Company dated as of March 31, 1997 (the
"Balance Sheet") as being owned by the Company or one of the
Company Subsidiaries (except properties sold or otherwise
disposed of since the date thereof in the ordinary course of
business), or acquired after the date thereof which are material
to the Company's business on a consolidated basis, free and clear
of all Encumbrances except (i) statutory liens securing payments
not yet due, and (ii) such imperfections or irregularities of
title, claims, liens, charges, security interests or encumbrances
as do not materially affect the use of the properties or assets
subject thereto or affected thereby or otherwise materially
impair business operations at such properties, and (b) is the
lessee of all leasehold estates which are material to its
business on a consolidated basis and is in possession of the
properties purported to be leased thereunder, and to the
knowledge of the Company, each such lease is valid without
default thereunder by the lessee or lessor. The assets and
properties of the Company and the Company Subsidiaries, taken as
a whole, are in good operating condition and repair (ordinary
wear and tear excepted), and constitute all of the assets and
properties which are required for the businesses and operations
of the Company and the Company Subsidiaries as presently
conducted.
SECTION 3.15. Labor Relations.
Neither the Company nor any Company Subsidiary is a party to
any collective bargaining agreement or other contract or
agreement with any labor organization or other representative of
any of the employees of the Company or any Company Subsidiary.
Except as set forth in Schedule 3.15, the Company and each
Company Subsidiary is in compliance in all material respects with
all laws relating to the employment or the workplace, including,
without limitation, provisions relating to wages, hours,
collective bargaining, safety and health, work authorization,
equal employment opportunity, immigration and the withholding of
income taxes, unemployment compensation, worker's compensation,
employee privacy and right to know and social security
contributions.
SECTION 3.16. Environmental Matters.
(a) Except as specifically set forth in those environmental
reports previously made available to Acquiror in the Company's
due diligence data room (the "Environmental Reports"), and except
for matters which would not in the aggregate have a Company
Material Adverse Effect, (i) the Company and each Company
Subsidiary is in compliance with all applicable Environmental
Laws (as defined below) in effect on the date hereof; (ii) all
Permits and other governmental authorizations currently held by
the Company and each Company Subsidiary pursuant to the
Environmental Laws are in full force and effect, the Company and
each Company Subsidiary is in compliance with all of the terms of
such Permits and authorizations, and no other Permits or
authorizations are required by the Company or any Company
Subsidiary for the conduct of their respective businesses on the
date hereof; and (iii) the management, handling, storage,
transportation, treatment, and disposal by the Company and each
Company Subsidiary of any Hazardous Materials (as defined below)
has been in compliance with all applicable Environmental Laws.
Neither the Company nor any Company Subsidiary has received any
written communication that alleges that the Company or any
Company Subsidiary is not in compliance in all material respects
with all applicable Environmental Laws in effect on the date
hereof. As of the date hereof, the Environmental Reports do not
set forth any facts or circumstances which have had or are
reasonably likely to have a Company Material Adverse Effect.
(b) Except as specifically set forth in the Environmental
Reports, there is no material Environmental Claim (as defined
below) pending or, to the knowledge of the Company, threatened
against or involving the Company or any of the Company
Subsidiaries or against any person or entity whose liability for
any material Environmental Claim the Company or any of the
Company Subsidiaries has or may have retained or assumed either
contractually or by operation of law.
(c) Except as specifically set forth in the Environmental
Reports and except for matters which would not in the aggregate
have a Company Material Adverse Effect, to the knowledge of the
Company, there are no past or present actions or activities by
the Company or any Company Subsidiary including the storage,
treatment, release, emission, discharge, disposal or arrangement
for disposal of any Hazardous Materials, that could reasonably
form the basis of any Environmental Claim against the Company or
any of the Company Subsidiaries or against any person or entity
whose liability for any Environmental Claim the Company or any
Company Subsidiary may have retained or assumed either
contractually or by operation of law.
(d) As used herein, these terms shall have the following
meanings:
(i) "Environmental Claim" means any and all
administrative, regulatory or judicial actions, suits, demands,
demand letters, directives, claims, liens, investigations,
proceedings or notices of noncompliance or violation (written or
oral) by any person or governmental authority alleging potential
liability arising out of, based on or resulting from the
presence, or release or threatened release into the environment,
of any Hazardous Materials at any location owned or leased by the
Company or any Company Subsidiary or other circumstances forming
the basis of any violation or alleged violation of any
Environmental Law.
(ii) "Environmental Laws" means all applicable foreign,
federal, state and local laws (including the common law), rules,
requirements and regulations relating to pollution, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or
protection of human health as it relates to the environment
including, without limitation, laws and regulations relating to
releases of Hazardous Materials, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials or
relating to management of asbestos in buildings.
(iii) "Hazardous Materials" means wastes,
substances, or materials (whether solids, liquids or gases) that
are deemed hazardous, toxic, pollutants, or contaminants,
including without limitation, substances defined as "hazardous
substances", "toxic substances", "radioactive materials", or
other similar designations in, or otherwise subject to regulation
under, any Environmental Laws
SECTION 3.17. Insurance.
Schedule 3.17 contains a list of all insurance policies of
title, property, fire, casualty, liability, life, workmen's
compensation, libel and slander, and other forms of insurance in
force at the date thereof with respect to the Company and the
Company Subsidiaries. All such insurance policies: (a) insure
against such risks, and are in such amounts, as appropriate and
reasonable considering the Company and the Company Subsidiaries'
properties, businesses and operations; (b) are in full force and
effect; and (c) are valid, outstanding, and enforceable. Neither
the Company nor any of the Company Subsidiaries has received or
given notice of cancellation with respect to any of the material
insurance policies.
SECTION 3.18. FCC Matters and Governmental Matters.
(a) The Company and the Company Subsidiaries hold all
licenses, permits and other authorizations issued by the FCC to
the Company and the Company Subsidiaries for the operation of
their respective businesses (the "FCC Licenses") as set forth in
Schedule 3.18. The FCC Licenses constitute all of the licenses,
permits and authorizations from the FCC that are required for the
operations and businesses of the Company and the Company
Subsidiaries as they are now operated, except where the FCC has
not issued a written microwave authorization. Without limiting
the foregoing, the Company and the Company Subsidiaries have
received all necessary authorizations from the Federal Aviation
Administration ("FAA") for all existing towers that are part of
the cellular systems operated by the Company and the Company
Subsidiaries and for any facilities the construction of which
have been approved by the FCC or of which applications or
notifications have been filed for such approval.
(b) Schedule 3.18 sets forth each application and
notification that the Company and the Company Subsidiaries have
pending before the FCC and sets forth the expiration date for
each of the cellular FCC Licenses. The Company and the Company
Subsidiaries have provided a copy to Acquiror of each of the FCC
Licenses and the applications and notifications listed in
Schedule 3.18, except where the FCC has not issued a written
microwave authorization.
(c) The FCC Licenses are valid and in full force and
effect, unimpaired by any condition or restriction or any act or
omission by the Company or any of the Company Subsidiaries which
would reasonably be likely to have a Company Material Adverse
Effect. Except as set forth in Schedule 3.18, there are no
modifications, amendments, applications, revocations, or other
proceedings, or complaints pending or, to the knowledge of the
Company, threatened, with respect to the FCC Licenses (other than
proceedings that apply to the cellular industry generally). All
fees due and payable to the FCC have been paid and no event has
occurred which, with or without the giving of notice or lapse of
time or both, would constitute grounds for revocation or
modification of the FCC Licenses.
(d) All material reports required by the Communications Act
or required to be filed with the FCC by the Company and the
Company Subsidiaries have been timely filed and are accurate and
complete in all material respects. All material reports required
to be filed by the Company and the Company Subsidiaries with all
other governmental or administrative authorities, federal, state
and local, have been timely filed and are accurate and complete
in all material respects.
(e) Except where a lack of compliance would not have a
Company Material Adverse Effect, the Company and the Company
Subsidiaries are in compliance with, and their cellular systems
have been operated in compliance with, the Communications Act and
the rules, regulations, policies and orders of the relevant state
public utilities commissions and the FAA, including, without
limitation, the FCC's time and coverage requirements of 47 C.F.R.
Sections 22.142, 22.911, 22.912 and 22.946 (the "Statutes"). The
Company and the Company Subsidiaries have in operation validly
licensed and adequate cellular base stations required to provide
32 dBu contour coverage, as calculated under the formula
prescribed by the FCC in 47 C.F.R. Section 22.911, to all areas of
their cellular markets except for coverage gaps that are less
than 50 contiguous square miles in size. Except as set forth in
Schedule 3.10 and 3.18, the Company and the Company Subsidiaries
have not received any written notice to the effect, or otherwise
been advised in writing, that they are not in compliance with any
Statutes and do not have any reason to anticipate that any
presently existing circumstances are reasonably likely to result
in violations of any Statutes.
(f) Without limiting the generality of the foregoing,
except as set forth in Schedule 3.8, no adverse finding has been
made, no consent decree entered, no adverse action has been
approved or taken by the FCC or any court or other administrative
body, and no admission of liability has been made with respect to
the Company or any of the Company Subsidiaries or any of the
Company's stockholders or any management employee of the Company
or the Company Subsidiaries concerning any civil or criminal
suit, action or proceeding brought under the provision of any
federal, state, territorial or local law relating to any of the
following: any felony; unlawful restraint of trade or monopoly;
unlawful combination; contract or agreement in restraint of
trade; the use of unfair methods of competition; fraud; unfair
labor practice; or discrimination.
(g) Neither the Company nor any of the Company Subsidiaries
has engaged in any course of conduct that could reasonably be
expected to impair the ability of Merger Sub or its subsidiaries
to be the holder of the FCC Licenses or is aware of any reason
why the FCC Licenses might not be renewed in the ordinary course,
why any of the FCC Licenses might be revoked, or why any pending
applications or notifications might not be approved.
SECTION 3.19. Board Approval; Vote Required.
The Board of Directors of the Company has determined that
the transactions contemplated by this Agreement are in the best
interests of the Company and its stockholders and has resolved to
recommend to such stockholders that they vote in favor thereof.
The affirmative vote of a majority of the votes entitled to be
cast by the holders of outstanding shares of the Class A Common
Stock and Class B Common Stock (voting as a single class) is the
only vote of any class or series of capital stock of the Company
necessary to approve the transactions contemplated under this
Agreement and the Merger.
SECTION 3.20. Opinion of Financial Advisor.
The Company's Board of Directors has received the opinion of
Xxxxxxx, Xxxxx & Co. that the consideration to be received in the
Merger by the stockholders of the Company is fair to such
stockholders from a financial point of view, a written copy of
which opinion will be provided to Acquiror when received by the
Company, and such opinion has not been withdrawn or modified in
any material respect.
SECTION 3.21. Brokers.
Except for Xxxxxxx, Sachs & Co., no broker, finder or
investment banker is entitled to any brokerage, finder's or other
fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or
on behalf of the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MERGER SUB
Acquiror and Merger Sub jointly and severally represent and
warrant to the Company as follows:
SECTION 4.1. Organization and Qualification.
Merger Sub is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation. Merger Sub was formed solely for the purpose of
engaging in the transactions contemplated by this Agreement. As
of the date of this Agreement, except for obligations or
liabilities incurred in connection with its incorporation or
organization and the transactions contemplated by this Agreement,
Merger Sub has not incurred, directly or indirectly, any
obligations or liabilities or engaged in any business activities
of any type or kind whatsoever or entered into any agreements or
arrangements with any person.
SECTION 4.2. Certificate of Incorporation and Bylaws.
Merger Sub has heretofore made available to the Company a
complete and correct copy of the certificate of incorporation and
the bylaws of Merger Sub, each as amended to date. Such
certificate of incorporation and bylaws are in full force and
effect. Merger Sub is not in violation of any of the provisions
of its certificate of incorporation or bylaws.
SECTION 4.3. Authority.
Merger Sub has the necessary corporate power and authority
to enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by Merger Sub and
the consummation by Merger Sub of the transactions contemplated
hereby have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part
of Merger Sub are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Merger Sub and, assuming
the due authorization, execution and delivery by the Company and
Acquiror, constitutes a legal, valid and binding obligation of
Merger Sub, enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights
generally and by the application of general principles of equity.
SECTION 4.4. No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Merger
Sub do not, and the performance by Merger Sub of its obligations
under this Agreement will not, subject to compliance with the
requirements set forth in Section 4.4(b) below, (i) conflict with
or violate the certificate of incorporation or bylaws of Merger
Sub, (ii) conflict with or violate any law, statute, ordinance,
rule, regulation, order, judgment or decree applicable to Merger
Sub or by which any of its properties is bound or affected, or
(iii) result in any breach of or constitute a default (or an
event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the
creation of any Encumbrance on any of the properties or assets of
Merger Sub pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Merger Sub is a party or by
which Merger Sub or any of its properties or assets is bound or
affected, except, in the case of clauses (ii) and (iii) above for
any such conflicts, violations, breaches, defaults or other
alterations or occurrences that would not prevent or delay
consummation of the Merger in any material respect, or otherwise
prevent Merger Sub from performing its obligations under this
Agreement in any material respect.
(b) The execution and delivery of this Agreement by Merger
Sub does not, and the performance of this Agreement by Merger Sub
will not, require any consent, approval, authorization or permit
of, or filing with or notification to, any Governmental Entity,
except (i) for (A) applicable requirements, if any, of the
Exchange Act, state takeover laws, exchanges on which Acquiror's
securities are traded, the HSR Act and the Communications Act,
(B) applicable requirements, if any, of the consents, approvals,
authorizations or permits described in Schedule 4.4, and (C)
filing and recordation of appropriate merger documents as
required by Delaware Law and (ii) where failure to obtain such
consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or delay consummation
of the Merger in any material respect.
SECTION 4.5. Vote Required.
The affirmative vote of Acquiror, the sole stockholder of
Merger Sub, is the only vote of the holders of any class or
series of Merger Sub capital stock necessary to approve any of
the transactions contemplated hereby.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF ACQUIROR
Acquiror represents and warrants to the Company as follows:
SECTION 5.1. Organization and Qualification; Subsidiaries.
Acquiror is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
formation. Acquiror is duly qualified to conduct its business,
and is in good standing, in each jurisdiction where the character
of its properties owned, operated or leased or the nature of its
activities makes such qualification necessary, except for such
failure which would not have an Acquiror Material Adverse Effect
(as defined below). Acquiror has the requisite power and
authority and any necessary governmental authority, franchise,
license or permit to own, operate, lease and otherwise to hold
and operate its assets and properties and to carry on the
business as now being conducted, except for such failure which
would not have an Acquiror Material Adverse Effect. As used
herein, the term "Acquiror Material Adverse Effect" means any
material adverse effect on the business, assets, financial
condition or results of operations of Acquiror and its
subsidiaries (collectively, the "Acquiror Subsidiaries") taken as
a whole.
SECTION 5.2. Organizational Documents.
Acquiror has heretofore made available to the Company a
complete and correct copy of the certificate of incorporation and
bylaws of Acquiror, each as amended to date. Such certificate of
incorporation and bylaws are in full force and effect. Acquiror
is not in violation of any of the provisions of its certificate
of incorporation or bylaws.
SECTION 5.3. Authority.
Acquiror has the necessary power and authority to enter into
this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Acquiror and the consummation
by Acquiror of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action and
no other proceedings on the part of Acquiror are necessary to
authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by Acquiror and, assuming the due authorization,
execution and delivery by the Company, constitutes a legal, valid
and binding obligation of Acquiror, enforceable in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
similar laws of general applicability relating to or affecting
creditors' rights generally and by the application of general
principles of equity.
SECTION 5.4. No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by
Acquiror do not, and the performance by Acquiror of its
obligations under this Agreement will not, subject to compliance
with the requirements set forth in Section 5.4(b) below, (i)
conflict with or violate the certificate of incorporation or
bylaws of Acquiror, (ii) conflict with or violate any law,
statute, ordinance, rule, regulation, order, judgment or decree
applicable to Acquiror or by which any of its properties is bound
or affected, or (iii) result in any breach of or constitute a
default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or
result in the creation of an Encumbrance on any of the properties
or assets of Acquiror pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise
or other instrument or obligation to which Acquiror is a party or
by which Acquiror or any of its properties or assets is bound or
affected, except, in the case of clauses (ii) and (iii) above for
any such conflicts, violations, breaches, defaults or other
alterations or occurrences that would not prevent or delay
consummation of the Merger in any material respect, or otherwise
prevent Acquiror from performing its obligations under this
Agreement in any material respect, and would not have an Acquiror
Material Adverse Effect.
(b) The execution and delivery of this Agreement by
Acquiror does not, and the performance of this Agreement by
Acquiror will not, require any consent, approval, authorization
or permit of, or filing with or notification to, any Governmental
Entity, except (i) for (A) applicable requirements, if any, of
the Exchange Act, state takeover laws, exchanges on which
Acquiror's securities are traded, the HSR Act and the
Communications Act, (B) applicable requirements, if any, of the
consents, approvals, authorizations or permits described in
Schedule 5.4, and (C) filing and recordation of appropriate
merger documents as required by Delaware Law and (ii) where
failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not
prevent or delay consummation of the Merger in any material
respect, or otherwise prevent Acquiror from performing its
obligations under this Agreement in any material respect, and
would not have an Acquiror Material Adverse Effect.
SECTION 5.5. Vote Required.
No vote of the stockholders of Acquiror is necessary to
approve any of the transactions contemplated hereby.
SECTION 5.6. Financing.
Acquiror will have available on the Effective Time
sufficient funds to consummate the Merger and to make all the
payments necessary to consummate the transactions contemplated
hereby, including, without limitation, payments under Article II
hereof for the Common Stock, Options and Dissenting Shares, and
payments necessary to satisfy all amounts outstanding as of the
Closing Date under the Company's credit facilities described on
Schedule 3.3 hereto.
SECTION 5.7. Qualification of Acquiror.
There are no facts or proceedings which would reasonably be
expected to disqualify Acquiror under the Communications Act or
otherwise from acquiring or operating any of the assets and
business of the Company and the Company Subsidiaries or would
cause the FCC not to approve the FCC Application (as defined in
Section 7.5(a)). Acquiror has no knowledge of any fact or
circumstance relating to Acquiror or any of its affiliates that
would reasonably be expected to (a) cause the filing of any
objection to the FCC Application, or (b) lead to a delay in the
processing by the FCC of the FCC Application. No waiver of any
FCC rule or policy is necessary to be obtained for the approval
of the FCC Application, nor will processing pursuant to any
exception or rule of general applicability be requested or
required in connection with the consummation of the transactions
herein.
SECTION 5.8. Absence of Litigation.
Except as set forth in Schedule 5.8, there are (a) no
claims, actions, suits, investigations, or proceedings pending
or, to Acquiror's knowledge, threatened against Acquiror or any
of its properties or assets before any court, administrative,
governmental, arbitral, mediation or regulatory authority or
body, domestic or foreign, that challenge or seek to prevent,
enjoin, alter or materially delay the transactions contemplated
hereby, and (b) no judgments, decrees, injunctions or orders of
any Governmental Entity or arbitrator outstanding against
Acquiror or any of its properties or assets that would prevent or
materially delay the transactions contemplated hereby.
SECTION 5.9. Brokers.
No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with
the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Acquiror.
SECTION 5.10. SEC Filings; Financial Statements.
(a) Acquiror has filed all forms, reports, statements and
other documents required to be filed with the SEC since December
31, 1996, and has heretofore made available to the Company, in
the form filed with the SEC since such date, together with any
amendments thereto, its (i) Annual Reports on Form 10-K, (ii) all
Quarterly Reports on Form 10-Q, (iii) all proxy statements
relating to meetings of stockholders (whether annual or special),
(iv) all reports on Form 8-K, and (v) all other reports or
registration statements filed by Acquiror (collectively, the
"Acquiror SEC Reports"). As of their respective filing dates the
Acquiror SEC Reports (i) complied as to form in all material
respects with the requirements of the Exchange Act and the
Securities Act and (ii) did not at the time they were filed
contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(b) The financial statements, including all related notes
and schedules, contained in the Acquiror SEC Reports (or
incorporated by reference therein) fairly present the
consolidated financial position of Acquiror and Acquiror
Subsidiaries as at the respective dates thereof and the
consolidated results of operations and cash flows of Acquiror and
Acquiror Subsidiaries for the periods indicated in accordance
with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as may
be noted therein) and subject in the case of interim financial
statements to normal year-end adjustments.
SECTION 5.11. Absence of Certain Changes or Events.
Except as disclosed in the Acquiror SEC Reports filed prior
to the date of this Agreement or as set forth in Schedule 5.11,
since March 31, 1997, Acquiror and Acquiror Subsidiaries have not
incurred any material liability, except in the ordinary course of
their businesses consistent with their past practices, and there
has not been any change in the business, financial condition or
results of operations of Acquiror or any of Acquiror
Subsidiaries, which has had, or is reasonably likely to have, an
Acquiror Material Adverse Effect, and Acquiror and Acquiror
Subsidiaries have conducted their respective businesses in the
ordinary course consistent with their past practices. The
representations and warranties contained in this Section 5.11
shall be deemed to speak only as of the date hereof.
ARTICLE VI
COVENANTS
SECTION 6.1. Affirmative Covenants of the Company.
The Company hereby covenants and agrees that, prior to the
Effective Time, unless otherwise expressly contemplated by this
Agreement or consented to in writing by Acquiror, the Company
shall, and shall cause each Company Subsidiary to, (a) operate
its business in the usual and ordinary course consistent with
past practices; (b) use its reasonable efforts to preserve
substantially intact its business organization, maintain its
rights and franchises, retain the services of its respective
principal officers and key employees and maintain its
relationship with its respective principal customers and
suppliers; (c) use its reasonable efforts to maintain and keep
its properties and assets in as good repair and condition as at
present, ordinary wear and tear excepted; and (d) use its
reasonable efforts to keep in full force and effect insurance
comparable in amount and scope of coverage to that currently
maintained; provided, however, that in the event the Company or
any of the Company Subsidiaries deems it necessary to take
certain actions that would otherwise be prohibited by clauses
(a)-(d) of this Section 6.1, the Company shall consult with
Acquiror and Acquiror shall consider in good faith the Company's
request to take such action and not unreasonably withhold or
delay its consent for such action.
SECTION 6.2. Negative Covenants of the Company.
Except as expressly contemplated by this Agreement and
except as set forth in Schedule 6.2, or otherwise consented to in
writing by Acquiror, from the date hereof until the Effective
Time, the Company shall not, and shall cause each Company
Subsidiary not to, do any of the following:
(a) (i) increase the compensation payable to or to become
payable to any of its directors, executive officers or employees,
except for increases in salary, wages or bonuses payable or to
become payable in the ordinary course of business and consistent
with past practice; (ii) grant any severance or termination pay
(other than pursuant to existing severance arrangements or
policies as in effect on the date of this Agreement) to, or enter
into or modify any employment or severance agreement with, any of
its directors, officers or employees; or (iii) adopt or amend any
employee benefit plan or arrangement, except as may be required
by applicable law;
(b) declare or pay any dividend on, or make any other
distribution in respect of, outstanding shares of its capital
stock;
(c) (i) redeem, repurchase or otherwise reacquire any share
of its capital stock or any securities or obligations convertible
into or exchangeable for any share of its capital stock, or any
options, warrants or conversion or other rights to acquire any
shares of its capital stock or any such securities or obligations
(except in connection with the exercise of outstanding Options
referred to in Schedule 3.3 in accordance with their terms); (ii)
effect any reorganization or recapitalization; or (iii) split,
combine or reclassify any of its capital stock or issue or
authorize or propose the issuance of any other securities in
respect of, in lieu of, or in substitution for, shares of its
capital stock;
(d) (i) issue, deliver, award, grant or sell, or authorize
or propose the issuance, delivery, award, grant or sale
(including the grant of any Encumbrances) of, any shares of any
class of its capital stock (including shares held in treasury),
any securities convertible into or exercisable or exchangeable
for any such shares (including any phantom options or stock
appreciation rights), or any rights, warrants or options to
acquire, any such shares (except for the issuance of shares upon
the exercise of outstanding Options and the issuance of shares
under the Company Stock Purchase Plans); or (ii) amend or
otherwise modify the terms of any such rights, warrants or
options in a manner inconsistent with the provisions of this
Agreement or the effect of which shall be to make such terms more
favorable to the holders thereof;
(e) acquire or agree to acquire, by merging or
consolidating with, by purchasing an equity interest in or a
portion of the assets of, or by any other manner, any business or
any corporation, partnership, association or other business
organization or division (other than a wholly-owned Subsidiary)
thereof, or otherwise acquire or agree to acquire any assets of
any other person (other than the purchase of assets in the
ordinary course of business and consistent with past practice),
or make or commit to make any capital expenditures other than
capital expenditures in the ordinary course of business
consistent with past practice;
(f) sell, lease, exchange, mortgage, pledge, transfer or
otherwise dispose of, or agree to sell, lease, exchange,
mortgage, pledge, transfer or otherwise dispose of, any of its
material assets except for the grant of purchase money security
interests not to exceed Five Hundred Thousand Dollars ($500,000)
in the aggregate and dispositions in the ordinary course of
business and consistent with past practice;
(g) propose or adopt any amendments to its certificate of
incorporation or, as to its bylaws or partnership agreement, as
the case may be, any amendments that would have an adverse impact
on the consummation of the transactions contemplated by this
Agreement or would be adverse to Acquiror's interests;
(h) (i) change any of its methods of accounting in effect
at January 1, 1997, or (ii) make or rescind any express or deemed
election relating to taxes, settle or compromise any claim,
action, suit, litigation, proceeding, arbitration, investigation,
audit or controversy relating to taxes (except where the amount
of such settlements or controversies, individually or in the
aggregate, does not exceed Five Hundred Thousand Dollars
($500,000), or change any of its methods of reporting income or
deductions for federal income tax purposes from those employed in
the preparation of the federal income tax returns for the taxable
year ending December 31, 1996, except, in the case of clause (i)
or clause (ii), as may be required by law or generally accepted
accounting principles;
(i) incur any obligation for borrowed money, whether or not
evidenced by a note, bond, debenture or similar instrument, other
than (i) purchase money indebtedness not to exceed Five Hundred
Thousand Dollars ($500,000) in the aggregate, (ii) indebtedness
incurred in the ordinary course of business under the existing
loan agreements described on Schedule 3.3 hereto, and (iii)
capitalized leases not to exceed One Million Dollars ($1,000,000)
in the aggregate;
(j) without the written consent of Acquiror (which consent
shall not be unreasonably withheld, delayed or conditioned),
enter into or modify in any material respect any agreement which,
if in effect as of the date hereof, would have been required to
be disclosed on Schedule 3.12 as a Material Contract; or
(k) agree in writing or otherwise to do any of the
foregoing.
SECTION 6.3. Negative Covenants of Acquiror.
From the date hereof until the Effective Time, Acquiror
shall not (a) declare or pay any dividend on or make any other
distribution of cash or property in respect of, outstanding
shares of its capital stock; or (b) redeem, repurchase or
otherwise reacquire any shares of its capital stock or any
securities or obligations convertible into or exchangeable for
any shares of its capital stock.
SECTION 6.4. Control of Operations.
Nothing contained in this Agreement shall give Acquiror or
Merger Sub, directly or indirectly, except as expressly provided
in this Agreement, the right to control or direct the Company's
operations prior to the Effective Time. Prior to the Effective
Time, each of the Company and Acquiror shall exercise, consistent
with the terms and conditions of this Agreement, complete control
and supervision over its respective operations.
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.1. Access and Information.
From the date hereof to the Effective Time, the Company
shall, and shall cause the Company Subsidiaries to, afford to
Acquiror and its officers, employees, accountants, consultants,
legal counsel, representatives of current and prospective sources
of financing for the Merger and other representatives of Acquiror
(collectively, the "Acquiror Representatives"), reasonable access
during normal business hours to the properties, executive
personnel and all information concerning the business,
properties, contracts, records and personnel of the Company and
the Company Subsidiaries as Acquiror may reasonably request. The
Company further agrees to reasonably cooperate with Acquiror in
connection with Acquiror's obtaining financing for this
transaction (including making appropriate officers of the Company
available on a reasonable basis for road show presentations).
SECTION 7.2. Confidentiality.
Acquiror acknowledges and agrees that all information
received from or on behalf of the Company or any of the Company
Subsidiaries in connection with the Merger shall be deemed
received pursuant to the confidentiality agreement, dated as of
May 21, 1997, between the Company and Acquiror (the
"Confidentiality Agreement") and Acquiror shall, and shall cause
the Acquiror Representatives to comply with the provisions of the
Confidentiality Agreement with respect to such information and
the provisions of the Confidentiality Agreement are hereby
incorporated herein by reference with the same effect as if fully
set forth herein.
SECTION 7.3. Stockholder Approval.
The Company shall, promptly after the date of this
Agreement, take all action necessary in accordance with Delaware
Law and its certificate of incorporation and bylaws to convene a
meeting of the Company's stockholders (the "Stockholders'
Meeting"), to approve and adopt this Agreement and the Merger.
The Company shall use its best efforts to solicit from
stockholders of the Company proxies in favor of the approval and
adoption of this Agreement and the Merger and to take all other
actions reasonably necessary or in Acquiror's reasonable judgment
advisable to secure such vote as promptly as practicable, unless
otherwise required by applicable fiduciary duties of the
directors of the Company, as determined by such directors in good
faith after consultation with independent legal counsel.
SECTION 7.4. Proxy Statement.
(a) As promptly as practicable after the execution and
delivery of this Agreement, the Company shall prepare and file
with the SEC a proxy statement in connection with the matters to
be considered at the Stockholders' Meeting (the "Proxy
Statement"). The Company shall use its best efforts to cause the
Proxy Statement to be "cleared" by the SEC for mailing to the
stockholders of the Company as promptly as practicable and shall
mail the Proxy Statement to its stockholders as promptly as
practicable thereafter. Acquiror shall furnish all information
concerning it and the holders of its capital stock as the Company
may reasonably request in connection with such actions. The
Proxy Statement shall include the recommendation of the Company's
Board of Directors in favor of approval and adoption of this
Agreement and the Merger, unless otherwise required by applicable
fiduciary duties of the directors of the Company, as determined
by such directors in good faith after consultation with
independent legal counsel. Acquiror shall have the right to
review the Proxy Statement before it is filed with the SEC.
(b) The information supplied by Acquiror for inclusion in
the Proxy Statement shall not, at the date the Proxy Statement
(or any supplement thereto) is first mailed by stockholders or at
the time of the Stockholders' Meeting, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they are made, not misleading. If at any time prior to the
Stockholders' Meeting any event or circumstance relating to
Acquiror or any of its affiliates, or its or their respective
officers or directors, should be discovered by Acquiror that
should be set forth in a supplement to the Proxy Statement,
Acquiror shall promptly inform the Company.
(c) All information contained in the Proxy Statement (other
than information provided by Acquiror for inclusion therein)
shall not, at the date the Proxy Statement (or any supplement
thereto) is first mailed to stockholders or at the time of the
Stockholders' Meeting, contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
the light of the circumstances under which they are made, not
misleading. If at any time prior to the Stockholders' Meeting
any event or circumstance relating to the Company or any of the
Company Subsidiaries, or to its or their respective officers or
directors, should be discovered by the Company that should be set
forth in a supplement to the Proxy Statement, the Company shall
promptly inform Acquiror. All documents that the Company is
responsible for filing with the SEC in connection with the
transactions contemplated herein will comply as to form and
substance in all material respects with the applicable
requirements of the Exchange Act and the rules and regulations
thereunder.
SECTION 7.5. FCC Application.
(a) As promptly as practicable after the execution and
delivery of this Agreement, Acquiror, Merger Sub and the Company
shall prepare all appropriate applications for FCC consent, and
such other documents as may be required, with respect to the
transfer of control of the Company to Acquiror (collectively, the
"FCC Application"). Not later than the fifth (5th) business day
following execution and delivery of this Agreement, Acquiror and
Merger Sub shall deliver to the Company their respective
completed portions of the FCC Application. Not later than the
tenth (10th) business day following the execution and delivery of
this Agreement, the Company shall file, or cause to be filed, the
FCC Application. Acquiror, Merger Sub and the Company shall
prosecute the FCC Application in good faith and with due
diligence in order to obtain such FCC consent as expeditiously as
practicable. If the Closing shall not have occurred for any
reason within the initial effective period of the granting of
approval by the FCC of the FCC Application, and neither Acquiror
nor the Company shall have terminated this Agreement pursuant to
Section 9.1, Acquiror and the Company shall jointly request one
or more extensions of the effective period of such grant. No
party hereto shall knowingly take, or fail to take, any action
the intent or reasonably anticipated consequence of which action
or failure to act would be to cause the FCC not to grant approval
of the FCC Application.
(b) Acquiror and the Company shall each pay one-half (1/2)
of any FCC fees that may be payable in connection with the filing
or granting of approval of the FCC Application. Acquiror and the
Company shall each oppose any request for reconsideration or
judicial review of the granting of approval of the FCC
Application. The Company shall pay any cost incurred in
connection with complying with the FCC notice and advertisement
requirements in connection with the transfer of control of the
Company.
SECTION 7.6. Further Action; Best Efforts.
(a) Each of the parties shall use best efforts to take, or
cause to be taken, all appropriate action, and do, or cause to be
done, all things necessary, proper or advisable under applicable
laws or otherwise to consummate and make effective the
transactions contemplated by this Agreement as promptly as
practicable, including, without limitation, using its best
efforts to obtain all licenses, permits, consents, approvals,
authorizations, qualifications and orders of Governmental
Entities and parties to contracts with the Company and Acquiror
as are necessary for the transactions contemplated herein. In
case at any time after the Effective Time any further action is
necessary or desirable to carry out the purposes of this
Agreement, the proper officers and directors of each party to
this Agreement shall use commercially reasonable efforts to take
all such action.
(b) From the date of this Agreement until the Effective
Time, each of the parties shall promptly notify the other in
writing of any pending or, to the knowledge of such party,
threatened action, proceeding or investigation by any
Governmental Entity or any other person (i) challenging or
seeking damages in connection with the Merger or the conversion
of the Common Stock into the Merger Consideration pursuant to the
Merger or (ii) seeking to restrain or prohibit the consummation
of the Merger or otherwise limit the right of Acquiror to own or
operate all or any portion of the business or assets of the
Company.
(c) The Company shall give prompt written notice to
Acquiror, and Acquiror and Merger Sub shall give prompt written
notice to the Company, of the occurrence, or failure to occur, of
any event, which occurrence or failure to occur would be likely
to cause any representation or warranty contained in this
Agreement to be untrue or inaccurate in any material respect at
any time from the date of this Agreement to the Effective Time.
Each party shall use its best efforts to not take any action, or
enter into any transaction, which would cause any of its
representations or warranties contained in this Agreement to be
untrue or result in a breach of any covenant made by it in this
Agreement.
SECTION 7.7. Public Announcements.
Acquiror and the Company shall consult with each other
before issuing any press release or otherwise making any public
statements with respect to the Merger and shall not issue any
such press release or make any such public statement prior to
such consultation, except as may be required by law or any
listing agreement of Acquiror or the Company with any exchange on
which the securities of the Company or Acquiror are traded.
SECTION 7.8. Indemnification; Directors' and Officers'
Insurance.
(a) The certificate of incorporation and bylaws of the
Surviving Corporation shall contain the provisions with respect
to indemnification set forth in the certificate of incorporation
and bylaws of the Company on the date of this Agreement, which
provisions shall not be amended, repealed or otherwise modified
for a period of six (6) years after the Effective Time in any
manner that would adversely affect the rights thereunder of
persons who at any time prior to the Effective Time were
identified as prospective indemnities under the certificate of
incorporation or bylaws of the Company in respect of actions or
omissions occurring at or prior to the Effective Time (including,
without limitation, the transactions contemplated by this
Agreement), unless such modification is required by applicable
law.
(b) From and after the Effective Time, the Surviving
Corporation shall indemnify, defend and hold harmless the present
and former officers, directors and employees of the Company and
the Company Subsidiaries (collectively, the "Indemnified
Parties") against all losses, expenses, claims, damages,
liabilities or amounts that are paid in settlement of, with the
approval of Acquiror and the Surviving Corporation (which
approval shall not be unreasonably withheld), or otherwise in
connection with, any claim, action, suit, proceeding or
investigation (a "Claim"), based in whole or in part on the fact
that such person is or was such a director, officer or employee
and arising out of actions or omissions occurring at or prior to
the Effective Time (including, without limitation, the
transactions contemplated by this Agreement), in each case to the
fullest extent permitted under Delaware Law (and shall pay
expenses in advance of the final disposition of any such action
or proceeding to each Indemnified Party to the fullest extent
permitted under Delaware Law, upon receipt from the Indemnified
Party to whom expenses are advanced of the undertaking to repay
such advances contemplated by Section 145(e) of Delaware Law).
(c) Without limiting the foregoing, in the event any Claim
is brought against any Indemnified Party (whether arising before
or after the Effective Time) after the Effective Time (i) the
Indemnified Parties may retain its regularly engaged independent
legal counsel as of the date of this Agreement, or other
independent legal counsel satisfactory to them provided that such
other counsel shall be reasonably acceptable to Acquiror and the
Surviving Corporation, (ii) the Surviving Corporation shall pay
all reasonable fees and expenses of such counsel for the
Indemnified Parties promptly as statements therefor are received,
and (iii) the Surviving Corporation will use its reasonable
efforts to assist in the vigorous defense of any such matter,
provided that the Surviving Corporation shall not be liable for
any settlement of any Claim effected without its written consent,
which consent shall not be unreasonably withheld. Any
Indemnified Party wishing to claim indemnification under this
Section 7.8, promptly upon learning of any such Claim, shall
notify the Surviving Corporation (although the failure so to
notify the Surviving Corporation shall not relieve the Surviving
Corporation from any liability which the Surviving Corporation
may have under this Section 7.8, except to the extent such
failure prejudices the Surviving Corporation), and shall deliver
to the Surviving Corporation the undertaking contemplated by
Section 145(e) of Delaware Law. The Indemnified Parties as a
group may retain one law firm (in addition to local counsel) to
represent them with respect to each such matter unless there is,
under applicable standards of professional conduct (as reasonably
determined by counsel to such Indemnified Parties) a conflict on
any significant issue between the position of any two or more of
such Indemnified Parties, in which event, an additional counsel
as may be required may be retained by such Indemnified Parties.
(d) Acquiror shall cause to be maintained in effect for not
less than six (6) years after the Effective Time the current
policies of directors' and officers' liability insurance and
fiduciary liability insurance maintained by the Company with
respect to matters occurring prior to the Effective Time;
provided, however, that (i) Acquiror may substitute therefor
policies of substantially the same coverage containing terms and
conditions that are substantially the same for the Indemnified
Parties to the extent reasonably available and (ii) Acquiror
shall not be required to pay an annual premium for such insurance
in excess of three hundred percent (300%) of the last annual
premium paid prior to the date of this Agreement, but in such
case shall purchase as much coverage as possible for such amount.
(e) This Section 7.8 is intended to be for the benefit of,
and shall be enforceable by, the Indemnified Parties referred to
herein, their heirs and personal representatives and shall be
binding on Acquiror and Merger Sub and the Surviving Corporation
and their respective successors and assigns. Acquiror hereby
guarantees the Surviving Corporation's obligations pursuant to
this Section 7.8.
SECTION 7.9. Employee Benefits Matters.
(a) For a period of two (2) years after the Effective Time,
Acquiror shall cause the Surviving Corporation to provide
employee benefits under plans, programs and arrangements, which,
in the aggregate, will provide benefits to the employees of the
Company and the Company Subsidiaries which are no less favorable,
in the aggregate, than those provided pursuant to the plans,
programs and arrangements of the Company in effect and disclosed
to Acquiror on the date hereof; provided, however, that nothing
herein shall interfere with the Surviving Corporation's right or
obligation to make such changes to such plans, programs or
arrangements as are necessary to conform with applicable law;
provided, further, however, that with respect to any such plan,
program or arrangement that provides for the issuance of the
Company's Common Stock, or options or securities exercisable or
convertible into the Company's Common Stock, the Surviving
Corporation shall be required to adopt equity compensation
programs providing for the issuance of common stock of Acquiror
to such employees.
(b) In furtherance of the provisions of Section 7.9(a),
Acquiror shall cause the Surviving Corporation to provide to
those executives listed on Schedule 7.9 hereto with the employee
benefits provided to each such executive on the date hereof and
for the time period set forth in the Company's employment and/or
severance agreements with such executives as set forth on
Schedule 7.9 hereto; provided, however, that notwithstanding the
foregoing, to the extent that any contributions under a qualified
retirement plan would be prohibited by applicable law, Acquiror
shall cause the Surviving Corporation to make cash payments from
time to time to such executives equal to the value of such
contributions which can not be so made under applicable law, as
and when such contributions would have been made as noted on
Schedule 7.9. The employee benefits provided to such executives
on the date hereof under the Company's employment and/or
severance agreements with such executives are detailed on
Schedule 7.9 hereto.
(c) Acquiror acknowledges and agrees that prior to the
Effective Time, the Company will take all such actions as may be
necessary to cause (i) all participants to become fully vested in
their benefits under the Company's 401(k) Plan, and (ii) employer
contributions to be made with respect to periods prior to the
Effective Time to the Company's 401(k) Plan to the extent that
such contributions would be made if the participants were
employed by the Company on the last day of the calendar year in
which the Closing occurs. Acquiror will allow employees of PCI
to continue to participate in the Company's 401(k) Plan at least
until the end of the calendar year in which the Closing occurs.
(d) On or prior to the Effective Time, the Company shall
pay a pro-rated portion of the annual bonuses and gainshare that
would have otherwise been payable to the eligible employees of
the Company after the end of the year, such bonuses and gainshare
to be consistent with the Company's 1997 Management and
Professional Bonus Plan and the Company's Gainshare Program, with
past practice, and the estimates contained in Schedule 7.9(d).
(e) Acquiror agrees that it will not allow the Surviving
Corporation to amend or terminate the Xxxxxx Wireless, Inc.
Change of Control Severance Program for a period of one (1) year
after the Effective Time.
(f) Prior to Closing, the Company shall make, or shall make
accruals on its financial statements for, all payments required
to be made by the Company under the terms of any Benefit Plan or
by any law applicable to any Benefit Plan with respect to all
periods through the Closing Date.
(g) On or prior to the Effective Time, the Company shall
take, or cause to be taken, such actions as are reasonably
necessary to:
(i) cause the Company to adopt the PCI plans providing
medical, dental, vision, prescription drug, flexible spending
account, pre-tax premium contribution, travel accident,
accidental death and dismemberment, long term disability, and
life insurance benefits for the benefit of Company employees;
(ii) add the Company as a contractholder under
insurance contracts providing insurance coverage, and
administrative contracts relating to, for one or more of the
benefits listed in the immediately preceding paragraph (i) above
as well as workers compensation liability coverage and provide
that such contracts continue as to the Company after the
Effective Time;
(iii) substitute the Company for PCI as the party
to the Xxxxxx Communications Health Care Expense Fund which is a
Code Section 501(c)(9) trust used to fund certain of the benefits
listed in paragraph (i) above and any other trust or account
which is used with respect to flexible spending accounts or pre-
tax premium contributions for Company employees; and
(iv) except as provided in Section 7.9(c) hereof, cease
participation and coverage in the Company plans, trusts and
insurance contracts referred to in paragraphs (i) through (iii)
above with respect to all individuals who are not Company
employees as of the Effective Time.
SECTION 7.10. HSR Act Matters.
Acquiror, Merger Sub and the Company (as may be required
pursuant to the HSR Act) promptly will complete all documents
required to be filed with the Federal Trade Commission and the
United States Department of Justice in order to comply with the
HSR Act and, not later than fifteen (15) days after the date
hereof, together with the persons who are required to join in
such filings, shall file the same with the appropriate
Governmental Entities. Acquiror, Merger Sub and the Company
shall promptly furnish all materials thereafter required by any
of the Governmental Entities having jurisdiction over such
filings, and shall take all reasonable actions and shall file and
use best efforts to have declared effective or approved all
documents and notifications with any such Governmental Entity, as
may be required under the HSR Act or other Federal antitrust laws
for the consummation of the Merger and the other transactions
contemplated hereby.
SECTION 7.11. Negotiation With Others.
(a) Unless and until this Agreement shall have been
terminated in accordance with its terms, the Company shall not,
through any officer, director, employee, representative, agent or
direct or indirect stockholder of the Company or any Company
Subsidiaries, directly or indirectly, encourage or solicit any
proposal that constitutes an Acquisition Proposal (as defined
below), engage in any discussions or negotiations or provide any
information to any person relating thereto or in furtherance
thereof or accept any Acquisition Proposal; provided, however,
that nothing contained in this Section 7.11 shall prohibit the
Company, or its Board of Directors, from making any disclosure to
its stockholders that, in the judgment of its Board of Directors
in accordance with, and based upon, the advice of outside
counsel, is required under applicable law. For purposes of this
Agreement, "Acquisition Proposal" means any offer to acquire (or
meaningful indication of interest in the acquisition of) all or
any substantial part of the business and properties or capital
stock of the Company or the Company Subsidiaries, whether by
merger, consolidation, sale of assets or stock, tender offer or
similar transaction or series of transactions involving the
Company, the Company Subsidiaries or their direct or indirect
stockholders.
(b) Notwithstanding Section 7.11(a), the Board of Directors
of the Company, in the exercise of and as required by its
fiduciary duties as determined in good faith by the Board of
Directors of the Company in accordance with and based upon the
advice of outside counsel, may (i) furnish information
(including, without limitation, confidential information)
concerning the Company to a third party who makes an unsolicited
request for such information for the purpose of making an
Acquisition Proposal, provided that such third party executes and
delivers a confidentiality agreement substantially the same as
the Confidentiality Agreement, and (ii) engage in discussions or
negotiations with a third party who submits in writing an
interest in making an Acquisition Proposal that the Board of
Directors believes, based on advice of its financial advisors, is
reasonably capable of being consummated and is reasonably likely
to be superior to the transactions contemplated by this Agreement
from a financial point of view to all stockholders of the
Company, provided, however, that in the case of clause (i) or
(ii) hereof, the Company shall promptly notify Acquiror in
writing of such request for information or Acquisition Proposal,
providing reasonable details with respect thereto, and shall keep
Acquiror informed as to the status of any discussions or
negotiations referred to in clause (ii) above.
ARTICLE VIII
CLOSING CONDITIONS
SECTION 8.1. Conditions to Obligations of Acquiror, Merger
Sub and the Company to Effect the Merger.
The respective obligations of Acquiror, Merger Sub and the
Company to effect the Merger and the other transactions
contemplated herein shall be subject to the satisfaction at or
prior to the Effective Time of the following conditions, any or
all of which may be waived, in whole or in part, to the extent
permitted by applicable law:
(a) Stockholder Approval. This Agreement and the Merger
shall have been approved and adopted by the requisite vote of the
stockholders of the Company in accordance with applicable law.
(b) No Order. No Governmental Entity or federal or state
court of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation,
executive order, decree, judgment, injunction or other order
(whether temporary, preliminary or permanent), in any case which
is in effect and which prevents or prohibits consummation of the
Merger or any other transactions contemplated in this Agreement;
provided, however, that the parties shall use their reasonable
efforts to cause any such decree, judgment, injunction or other
order to be vacated or lifted.
(c) HSR Act. Any waiting period with any extensions
thereof under the HSR Act shall have expired or been terminated.
(d) FCC Approval. All consents, waivers, approvals and
authorizations (the "FCC Transfer Approvals") required to be
obtained, and all filings or notices required to be made, by
Acquiror, Merger Sub and the Company prior to consummation of the
transactions contemplated in this Agreement shall have been
obtained from, and made with, the FCC. Each of the FCC Transfer
Approvals shall have become a Final Order. For purposes of this
Agreement, "Final Order" shall mean an action by the FCC: (i)
that is not reversed, stayed, enjoined, set aside, annulled or
suspended within the deadline, if any, provided by applicable
statute or regulation; (ii) with respect to which no 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 that is filed within such period is
pending, and (iii) as to which the deadlines, if any, for filing
any such request, motion, petition, application, appeal or
notice, and for the entry of orders staying, reconsidering or
reviewing on the FCC's own motion have expired. Notwithstanding
anything to the contrary contained herein or otherwise, Acquiror
may, at is option by written notice to the Company: (i) waive on
behalf of the parties the requirement that each of the FCC
Transfer Approvals shall have become a Final Order; and (ii)
acquire the microwave licenses pursuant to special temporary
authority granted to Acquiror by the FCC.
SECTION 8.2. Additional Conditions to Obligations of
Acquiror.
The obligations of Acquiror to effect the Merger and the
other transactions contemplated in this Agreement are also
subject to the following conditions, any or all of which may be
waived, in whole or in part, to the extent permitted by
applicable law:
(a) Representations and Warranties. The representations
and warranties of the Company made in this Agreement shall be
true and correct in all material respects, on and as of the
Effective Time with the same effect as though such
representations and warranties had been made on and as of the
Effective Time (provided that any representation or warranty
contained herein that is qualified by a materiality standard
shall not be further qualified hereby), except for
representations and warranties that speak as of a specific date
or time other than the Effective Time (which need only be true
and correct in all material respects as of such date or time).
Acquiror shall have received a certificate of the Chief Executive
Officer or Chief Financial Officer of the Company to that effect.
(b) Agreements and Covenants. The agreements and covenants
of the Company required to be performed on or before the
Effective Time shall have been performed in all material
respects. Acquiror shall have received a certificate of the
Chief Executive Officer or Chief Financial Officer of the Company
to that effect.
(c) Legal Opinions. Acquiror shall have received (i) an
opinion from Xxxxx & Xxxxxxx L.L.P., counsel to the Company, in
form and substance reasonably satisfactory to Acquiror, and (ii)
an opinion from the Company's FCC counsel in substantially the
form attached hereto as Exhibit A.
(d) Dissenting Shares. The Dissenting Shares shall
constitute not greater than ten percent (10%) of the shares of
Class A Common Stock outstanding on the Closing Date.
(e) No Company Material Adverse Effect. Since the date of
this Agreement, no Company Material Adverse Effect shall have
occurred and be continuing.
SECTION 8.3. Additional Conditions to Obligations of the
Company.
The obligations of the Company to effect the Merger and the
other transactions contemplated in this Agreement are also
subject to the following conditions any or all of which may be
waived, in whole or in part, to the extent permitted by
applicable law:
(a) Representations and Warranties. The representations
and warranties of Acquiror and Merger Sub made in this Agreement
shall be true and correct in all material respects, on and as of
the Effective Time with the same effect as though such
representations and warranties had been made on and as of the
Effective Time (provided that any representation or warranty
contained herein that is qualified by a materiality standard
shall not be further qualified hereby), except for
representations and warranties that speak as of a specific date
or time other than the Effective Time (which need only be true
and correct in all material respects as of such date or time).
The Company shall have received a certificate of the Chief
Executive Officer or Chief Financial Officer of Acquiror to that
effect.
(b) Agreements and Covenants. The agreements and covenants
of Acquiror and Merger Sub required to be performed on or before
the Effective Time shall have been performed in all material
respects. The Company shall have received a certificate of the
Chief Executive Officer or Chief Financial Officer of Acquiror to
that effect.
(c) Legal Opinion. The Company shall have received an
opinion from Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP, counsel to
Acquiror and Merger Sub, in form and substance reasonably
satisfactory to the Company.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
SECTION 9.1. Termination.
This Agreement may be terminated at any time prior to the
Effective Time, whether before or after approval of this
Agreement and the Merger by the stockholders of the Company:
(a) by mutual written consent of each of Acquiror and the
Company;
(b) by Acquiror if the Company shall have breached, or
failed to comply with, in any material respect any of its
obligations under this Agreement or any representation or
warranty made by the Company shall have been incorrect in any
material respect when made or shall have since ceased to be true
and correct in any material respect, such that as a result of
such breach, failure or misrepresentation the conditions set
forth in Section 8.2(a), 8.2(b) or 8.2(e) would not be satisfied,
and such breach, failure or misrepresentation is not cured within
thirty (30) days after notice thereof;
(c) by the Company if Acquiror or Merger Sub shall have
breached, or failed to comply with, in any material respect any
of its obligations under this Agreement or any representation or
warranty made by Acquiror or Merger Sub shall have been incorrect
in any material respect when made or shall have since ceased to
be true and correct in any material respect, such that as a
result of such breach, failure or misrepresentation the
conditions set forth in Section 8.3(a) or 8.3(b) would not be
satisfied, and such breach, failure or misrepresentation is not
cured within thirty (30) days after notice thereof;
(d) by either Acquiror or the Company if any decree,
permanent injunction, judgment, order or other action by any
court of competent jurisdiction or any Governmental Entity
preventing or prohibiting consummation of the Merger shall have
become final and nonappealable;
(e) by either Acquiror or the Company if the Agreement
shall fail to receive the requisite vote for approval and
adoption by the stockholders of the Company at the Stockholders'
Meeting and the Merger shall not have been consummated within
forty-five (45) days thereafter; and
(f) by either the Company or Acquiror if the merger shall
not have been consummated before December 31, 1997 (the
"Termination Date"); provided, however, that the right to
terminate this Agreement under this Section 9.1(f) shall not be
available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of, or resulted in, the
failure of the Effective Time to occur on or before the
Termination Date.
SECTION 9.2. Effect of Termination.
Except as provided in Section 9.3 or Section 10.1, in the
event of the termination of this Agreement pursuant to Section
8.1, this Agreement shall forthwith become void, there shall be
no liability on the part of Acquiror, Merger Sub or the Company
or any of their respective officers or directors to the other
parties hereto and all rights and obligations of any party hereto
shall cease, except that nothing herein shall relieve any party
for any breach of this Agreement.
SECTION 9.3. Expenses; Fee.
(a) Except as otherwise expressly provided herein, all
expenses incurred by the parties hereto shall be borne solely by
the party that has incurred such expenses. All FCC annual
regulatory fees which are due and payable prior to Closing shall
be paid by the Company prior to Closing.
(b) Without in any way limiting the Company's obligations
under this Agreement (including without limitation under Sections
1.1, 1.2, 1.6, 2.3, 6.1, 6.2, 7.1, 7.3, 7.4, 7.5, 7.6, 7.10 and
7.11 hereof) or Acquiror's rights under Section 10.7 hereof, the
Company shall pay, or shall cause to be paid to, Acquiror a Fee
(the "Fee") of Fifteen Million Dollars ($15,000,000), if this
Agreement is (i) terminated either (A) by Acquiror under Section
9.1(b) as a result of the Company's breach of its obligations
under Sections 1.1, 1.2, 1.6, 2.3, 6.1, 6.2, 7.1, 7.3, 7.4, 7.5,
7.6, 7.10 or 7.11, (B) by the Company or Acquiror under Section
9.1(e) and (ii) either (A) an Alternative Transaction (as defined
below) has been publicly announced and has not been withdrawn at
the time of such termination (in which event the Fee shall be
paid simultaneously with such termination) or (B) an Alternative
Transaction is consummated on or prior to the date that is one
(1) year after the date of this Agreement (in which event the Fee
shall be paid simultaneously with such consummation); provided,
however, that payment of such Fee shall be deemed to satisfy in
full all of the liabilities and obligations of the Company under
this Agreement. As used herein, an "Alternative Transaction"
shall mean any transaction or proposed transaction or related
series of transactions (including without limitation any merger,
consolidation, sale of assets or stock, tender offer or other
transaction) providing for the receipt by the Company and/or the
holders of more than fifty percent (50%) of its Common Stock of
consideration equivalent to a value in excess of Seventeen
Dollars and Fifty Cents ($17.50) per share of Common Stock.
SECTION 9.4. Amendment.
This Agreement may be amended by the parties hereto by
action taken by or on behalf of their respective Boards of
Directors at any time prior to the Effective Time; provided,
however, that, after approval of this Agreement and the Merger by
the stockholders of the Company, no amendment may be made which
would reduce the amount or change the type of consideration into
which each share of Common Stock shall be converted pursuant to
this Agreement upon consummation of the Merger. This Agreement
may not be amended except by an instrument in writing signed by
the parties hereto.
SECTION 9.5. Waiver.
At any time prior to the Effective Time, the parties may (a)
extend the time for the performance of any of the obligations or
other acts of the other party, (b) waive any inaccuracies in the
representations and warranties contained in this Agreement or in
any document delivered pursuant to this Agreement and (c) waive
compliance by the other party with any of the agreements or
conditions contained in this Agreement. Any such extension or
waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
ARTICLE X
GENERAL PROVISIONS
SECTION 10.1. Nonsurvival of Representations, Warranties
and Agreements.
The representations, warranties and agreements in this
Agreement (and in any certificate delivered in connection with
the Closing) shall be deemed to be conditions to the Merger and
shall not survive the Effective Time or termination of this
Agreement, except for the agreements set forth in Articles I (the
Merger) and II (Conversion of Securities; Exchange of
Certificates) and Sections 7.8 (Indemnification and Insurance)
and 7.9 (Employee Benefits Matters), each of which shall survive
the Effective Time indefinitely, and Sections 7.2
(Confidentiality), 9.2 (Effect of Termination) and 9.3 (Expenses;
Fee), each of which shall survive termination of this Agreement
indefinitely.
SECTION 10.2. Notices.
All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered, mailed or transmitted,
and shall be effective upon receipt, if delivered personally,
mailed by registered or certified mail (postage prepaid, return
receipt requested) to the parties at the following addresses (or
at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission to the
telecopier number specified below:
(a) If to Acquiror:
Price Communications Corporation
00 Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxxx
With a copy (which shall not constitute notice) to:
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
(b) If to the Company:
Xxxxxx Wireless, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxx Xxxxxx, Esq.
With a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
Columbia Square
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X.X. Xxxxxx, Xx., Esq.
SECTION 10.3. Certain Definitions.
For purposes of this Agreement, the term:
(a) "affiliate" means a person that directly or indirectly,
through one or more intermediaries, controls, is controlled by,
or is under common control with, the first mentioned person;
(b) "beneficial owner" means with respect to any shares of
Common Stock a person who shall be deemed to be the beneficial
owner of such shares (i) which such person or any of its
affiliates or associates beneficially owns, directly or
indirectly, (ii) which such person or any of its affiliates or
associates (as such term is defined in Rule 12b-2 of the Exchange
Act) has, directly or indirectly, (A) the right to acquire
(whether such right is exercisable immediately or subject only to
the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (B) the right to
vote pursuant to any agreement, arrangement or understanding,
(iii) which are beneficially owned, directly or indirectly, by
any other persons with whom such person or any of its affiliates
or associates has any agreement, arrangement or understanding for
the purpose of acquiring, holding voting or disposing of any such
shares or (iv) pursuant to Section 13(d) of the Exchange Act and
any rules or regulations promulgated thereunder;
(c) "business day" shall mean any day other than a day on
which banks in the State of Florida are authorized or obligated
to be closed;
(d) "control" (including the terms "controlled by" and
"under common control with") means, other than for purposes of
the Communications Act, the possession, directly or indirectly or
as trustee or executor, of the power to direct or cause the
direction of the management or policies of a person, whether
through the ownership of stock or as trustee or executor, by
contract or credit arrangement or otherwise; and
(e) "person" means an individual, corporation, partnership,
association, trust, unincorporated organization, other entity or
group (as defined in Section 13(d) of the Exchange Act).
SECTION 10.4. Headings.
The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 10.5. Severability.
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or
public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent
possible.
SECTION 10.6. Entire Agreement.
This Agreement (together with the Exhibits, the Schedules
and the other documents delivered pursuant hereto) and the
Confidentiality Agreement constitute the entire agreement of the
parties and supersede all prior agreements and undertakings, both
written and oral, between the parties, or any of them, with
respect to the subject matter hereof and, except as otherwise
expressly provided herein, are not intended to confer upon any
other person any rights or remedies hereunder.
SECTION 10.7. Specific Performance.
The transactions contemplated by this Agreement are unique.
Accordingly, each of the parties acknowledges and agrees that, in
addition to all other remedies to which it may be entitled, each
of the parties hereto is entitled to a decree of specific
performance, provided such party is not in material default
hereunder.
SECTION 10.8. Assignment.
Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the
prior written consent of the other party. Subject to the
preceding sentence, this Agreement shall be binding upon, inure
to the benefit of and be enforceable by the parties and their
respective successors and assigns.
SECTION 10.9. Third Party Beneficiaries.
This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement except for (a) the
Indemnified Parties under Section 7.8, (b) the rights of the
holders of Common Stock to receive the Merger Consideration
payable in the Merger pursuant to Article II, and (c) the rights
of the individuals listed on Schedule 7.9 under Section 7.9.
SECTION 10.10. Governing Law.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles
of conflicts of law.
SECTION 10.11. Counterparts.
This Agreement may be executed and delivered in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed and delivered shall be
deemed to be an original but all of which taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
AGREEMENT AND PLAN OF MERGER to be executed and delivered as of
the date first written above.
PRICE COMMUNICATIONS CORPORATION
By:/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: President
PRICE COMMUNICATIONS CELLULAR MERGER CORP.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Xxxxxxxxx
XXXXXX WIRELESS, INC.
By:/s/ Xxxxxxx X.Xxxx
Name: Xxxxxxx X. Xxxx
Title: President and Chief
Executive Officer
