EXHIBIT 10.10
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT, dated as of October 2, 1996, between The Alpine
Group, Inc., a Delaware corporation ("ALPINE"), and Superior TeleCom Inc., a
Delaware corporation ("TELECOM");
RECITALS
The Boards of Directors of each of the parties hereto, deem it
advisable for the benefit of each of the parties hereto and their respective
stockholders that Alpine have the right to exchange certain shares of 6%
Cumulative Preferred Stock, par value $1.00 per share ("SUPERIOR PREFERRED
STOCK"), of Superior Telecommunications Inc., a Georgia corporation, for shares
of 6% Cumulative Preferred Stock, par value $1.00 per share, of TeleCom
("TELECOM PREFERRED STOCK");
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations, and warranties contained herein and subject to the
conditions and other terms contained herein, the parties hereto do hereby agree
as follows:
Section 1. EXCHANGE OF SHARES.
(a) Subject to and in accordance with the terms and conditions
of this Agreement, Alpine shall have the right from time to time, upon notice to
TeleCom at any time subsequent to October 31, 1997, to sell and transfer to
TeleCom up to an aggregate of 20,000 shares of Superior Preferred Stock, in
exchange for shares of TeleCom Preferred Stock having substantially the same
rights, privileges, terms and conditions as the Superior Preferred Stock, at an
exchange ratio of one share of TeleCom Preferred Stock for each share of
Superior Preferred Stock.
(b) The exchange of shares shall occur as promptly as
practicable after delivery of the notice provided in Section 1(a). Upon such
exchange, Alpine shall deliver to TeleCom stock certificates representing the
shares of Superior Preferred Stock, duly endorsed in blank or with appropriate
stock powers executed in blank, in proper form for transfer and in form
satisfactory to counsel for TeleCom, together with a certificate executed by an
officer of Alpine to the effect that the representations, warranties and
covenants contained in Section 2 hereof continue to be accurate in all material
respects as of the date of such certificate. TeleCom shall deliver to Alpine
duly executed stock certificates representing the shares of TeleCom Preferred
Stock, duly endorsed in blank or with appropriate stock powers executed in
blank, in proper form for transfer and in form
satisfactory to counsel for Alpine, together with a certificate executed by an
officer of TeleCom to the effect that the representations, warranties and
covenants contained in Section 3 hereof continue to be accurate in all material
respects as of the date of such certificate.
Section 2. REPRESENTATIONS OF ALPINE.
Alpine represents to and agrees with TeleCom as follows:
(a) Alpine owns the shares of Superior Preferred Stock free
and clear of all claims, liens, security interests, pledges, charges,
encumbrances, stockholders' agreements, and voting trusts.
(b) Alpine has all requisite power and authority to execute
and deliver this Agreement and perform its obligations hereunder.
(c) All necessary corporate proceedings or other similar
actions have been duly taken by Alpine to authorize the execution and delivery
of this Agreement and the performance of Alpine's obligations hereunder.
(d) Alpine is an "accredited investor," as that term is
defined in Rule 501 of Regulation D promulgated under the Securities Act of
1933, as amended (the "SECURITIES ACT").
(e) Alpine will acquire the shares of TeleCom Preferred
Stock for its own account for investment and not with a view to, or for sale in
connection with, any public distribution thereof in violation of the Securities
Act and understands that such shares of TeleCom Preferred Stock will not be
registered for sale under the Securities Act or qualified under applicable state
securities laws and that the shares of TeleCom Preferred Stock will be delivered
to Alpine pursuant to one or more exemptions from the registration or
qualification requirements of such securities laws and that the representations
and warranties contained in this Section 2 are given with the intention that
TeleCom may rely thereon for purposes of claiming such exemptions. Alpine
understands that the TeleCom Preferred Stock cannot be sold unless registered
under the Securities Act and qualified under state securities laws, unless an
exemption from such registration and qualification is available.
(f) Alpine hereby agrees that there may be endorsed upon
any certificate representing the shares of TeleCom Preferred Stock acquired
pursuant hereto (and any certificates issued in substitution therefor) the
following legend calling attention to the foregoing restrictions on
transferability and stating in substance:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR QUALIFICATION
UNDER THE BLUE SKY LAWS OF ANY JURISDICTION. SUCH
SECURITIES MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR
OTHERWISE DISPOSED OF, BENEFICIALLY OR ON THE RECORDS OF THE
CORPORATION, UNLESS THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
AND QUALIFIED UNDER APPLICABLE BLUE SKY LAWS OR AN EXEMPTION
FROM SUCH REGISTRATION AND QUALIFICATION IS AVAILABLE."
Section 3. REPRESENTATIONS OF TELECOM.
TeleCom represents to and agrees with Alpine as follows:
(a) Upon the transfer to Alpine of the shares of TeleCom
Preferred Stock hereunder, Alpine will acquire good and valid title to such
shares free and clear of all claims, liens, security interests, pledges,
charges, encumbrances, stockholders' agreements, and voting trusts (other than
any created by Alpine).
(b) TeleCom has all requisite power and authority to
execute and deliver this Agreement, perform its obligations hereunder, and to
issue to and exchange with Alpine the shares of TeleCom Preferred Stock to be
exchanged by TeleCom pursuant hereto.
(c) All necessary corporate proceedings or other similar
actions have been duly taken by TeleCom to authorize the execution and delivery
of this Agreement, the performance of TeleCom's obligations hereunder, and to
authorize the issuance to and exchange with Alpine of the shares of stock to be
exchanged by TeleCom pursuant hereto.
(d) TeleCom is an "accredited investor," as that term is
defined in Rule 501 of Regulation D promulgated under the Securities Act.
(e) TeleCom will acquire the shares of Superior Preferred
Stock pursuant hereto for its own account for investment and not with a view to,
or for sale in connection with, any public distribution thereof in violation of
the Securities Act and understands that such shares of Superior Preferred Stock
have not been registered for sale under the Securities Act or qualified under
applicable state securities laws and that the shares of Superior Preferred Stock
will be delivered to TeleCom pursuant to one or more exemptions from the
registration or
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qualification requirements of such securities laws and that the representations
and warranties contained in this Section 3 are given with the intention that
such representations and warranties may be relied upon for purposes of claiming
such exemptions. TeleCom understands that the Superior Preferred Stock cannot
be sold unless registered under the Securities Act and qualified under state
securities laws, unless an exemption from such registration and qualification is
available.
(f) TeleCom hereby agrees that there may be endorsed upon
any certificate representing the Superior Preferred Stock acquired pursuant
hereto (and any certificates issued in substitution therefor) the following
legend calling attention to the foregoing restrictions on transferability and
stating in substance:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR QUALIFICATION
UNDER THE BLUE SKY LAWS OF ANY JURISDICTION. SUCH
SECURITIES MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR
OTHERWISE DISPOSED OF, BENEFICIALLY OR ON THE RECORDS OF THE
CORPORATION, UNLESS THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
AND QUALIFIED UNDER APPLICABLE BLUE SKY LAWS OR AN EXEMPTION
FROM SUCH REGISTRATION AND QUALIFICATION IS AVAILABLE."
Section 4. REGISTRATION UNDER THE SECURITIES ACT. Simultaneosly with
the execution of this Agreement, the parties are entering into a Registration
Rights Agreement substantially in the form attached hereto as Exhibit A.
Section 5. AMENDMENT AND MODIFICATION. To the fullest extent
provided by applicable law, this Agreement may be amended, modified, and
supplemented with respect to any of the terms contained herein by mutual consent
of the respective Boards of Directors of the parties hereto or by their
respective officers duly authorized by such Boards of Directors by an
appropriate written instrument.
Section 6. ASSIGNMENT. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests, or obligations hereunder shall be assigned by
either party without the prior written consent of the other party, except that
Alpine may assign its rights and obligations hereunder to any transferee of the
TeleCom Preferred Stock received by Alpine hereunder.
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Section 7. GOVERNING LAW. This Agreement and the legal relations
between the parties hereto shall be governed by and construed in accordance with
the law of the State of New York, without giving effect to conflict of laws.
Section 8. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
Section 9. HEADINGS AND REFERENCES. The headings contained in this
Agreement are solely for convenience of reference and shall be given no effect
in the construction or interpretation of this Agreement.
Section 10. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements and
understandings, oral and written, between the parties hereto with respect to the
subject matter hereof.
Section 11. COMMUNICATIONS. All notices or other communications
hereunder shall be in writing and shall be given by registered or certified mail
(postage prepaid and return receipt requested), by an overnight courier service
which obtains a receipt to evidence delivery, or by telex or facsimile
transmission (provided that written confirmation of receipt is provided),
addressed as set forth on the signature page hereof or such other address as
either party may designate to the other in accordance with the aforesaid
procedure. All notices and other communications sent by overnight courier
service shall be deemed to have been given as of the second Business Day after
delivery thereof to such courier service, those given by telex or facsimile
transmission shall be deemed given when sent, and all notices and other
communications sent by mail shall be deemed given as of the third Business Day
after the date of deposit in the United States mail. As used herein, "Business
Day" shall mean any day other than Saturday, Sunday, or any other day when banks
in New York City are required or permitted to be closed.
Section 12. FURTHER ACTIONS. At any time and from time to time, each
party agrees, without further consideration, to take such actions and to execute
and deliver such documents as may be reasonably necessary to effectuate the
purposes of this Agreement.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date and year first written above.
THE ALPINE GROUP, INC.
By /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President and
Secretary
Address for notices:
The Alpine Group, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
SUPERIOR TELECOM INC.
By /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Secretary
Address for notices:
Superior TeleCom Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
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