EXHIBIT 10.81
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "First
Amendment") is made and entered into as of April 30, 1999, by and among SBA
COMMUNICATIONS CORPORATION ("Parent"), SBA CONSTRUCTION SERVICES, INC.
("Subsidiary"), COM-NET CONSTRUCTION SERVICES, INCORPORATED ("Com-Net"), XXXXXX
X. XXXXXXXX ("Xxxxxxxx"), and XXXXXXXX FAMILY LIMITED PARTNERSHIP (the "Limited
Partnership," together with Xxxxxxxx, the "Shareholders").
W I T N E S S E T H:
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WHEREAS, Parent, Subsidiary, Com-Net and the Shareholders entered into that
certain Agreement and Plan of Merger dated as of March 31, 1999 (the "Merger
Agreement"); and
WHEREAS, Parent, Subsidiary, Com-Net and the Shareholders desire to amend
certain terms and provisions of the Merger Agreement; and
WHEREAS, capitalized terms used but not otherwise defined in this First
Amendment shall have the meanings set forth in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the agreements
contained herein and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereto agree as
follows:
ARTICLE I
MODIFICATION OF MERGER CONSIDERATION AND PROCEDURES
1.1 Sections 3.1(b) through (e) of the Merger Agreement are deleted in
their entirety and replaced with the following:
"(b) By virtue of the Merger and without any action on the part of the
Shareholders, all of the Shares then issued and outstanding shall be converted
into, and become exchangeable for, shares (the "Conversion Shares") of Parent
Common Stock (the "Share Consideration") as follows:
(i) On the Closing Date, (A) 300,000 Conversion Shares (the "Absolute
Conversion Shares"), 200,000 of which shall be issued to Xxxxxxxx and 100,000 of
which shall be issued to the Limited Partnership, and (B) subject to Section
7.1(f)(ii) below, 480,000 Conversion Shares (the "Recoupment Conversion
Shares"), 320,000 of which will be issued to Xxxxxxxx and 160,000 of which will
be issued to the Limited Partnership (the Absolute Conversion Shares and the
Recoupment Conversion Shares are sometimes hereinafter collectively referred to
as the "Initial Conversion Shares"); provided, however, that (X) in the event
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the EBITDA of the Surviving Corporation for the twelve (12) month period ended
December 31, 1999 does not exceed $2,250,000, the Shareholders shall transfer
all of the Recoupment Conversion Shares to Parent within ten (10) days following
delivery to the Shareholders of the EBITDA Calculation for such twelve (12)
month period and (B) in the event the EBITDA of the
Surviving Corporation for the twelve (12) month period ended December 31, 1999
exceeds $2,250,000, the Shareholders shall retain 160,000 Recoupment Conversion
Shares (66-2/3% of which will be retained by Xxxxxxxx and 33-1/3% of which will
be retained by the Limited Partnership) for each $250,000 (but not a portion
thereof), if any, that the EBITDA of the Surviving Corporation for the twelve
(12) month period ended December 31, 1999 exceeds $2,000,000 and shall transfer
all of the remaining Recoupment Conversion Shares, if any, to Parent within ten
(10) days following delivery to the Shareholders of the EBITDA Calculation for
such twelve (12) month period.
(ii) Subject to Section 7.1(f)(ii) and Section 11.5 below, promptly
following delivery to the Shareholders of the EBITDA Calculation for the twelve
(12) month period ended December 31, 1999, 160,000 Conversion Shares for each
$250,000 (but not a portion thereof), if any, that the EBITDA of the Surviving
Corporation for the twelve (12) month period ended December 31, 1999 exceeds
$2,750,000, but not to exceed a total of 320,000 Conversion Shares (the "1999
Conversion Shares"), 66-2/3% of which will be issued to Xxxxxxxx and 33-1/3% of
which will be issued to the Limited Partnership.
(iii) Subject to Section 7.1(f)(ii) and Section 11.5 below, promptly
following delivery to the Shareholders of the EBITDA Calculation for the twelve
(12) month period ended December 31, 2000, 100,000 Conversion Shares for each
$250,000 (but not a portion thereof), if any, that the EBITDA of the Surviving
Corporation for the twelve (12) month period ended December 31, 2000 exceeds
$3,000,000 and is less than or equal to $4,000,000 but not to exceed a total of
400,000 Conversion Shares (the "2000 Conversion Shares"), 66-2/3% of which will
be issued to Xxxxxxxx and 33-1/3% of which will be issued to the Limited
Partnership.
(iv) Subject to Section 7.1(f)(vi) and Section 11.5 below, in addition
to the 2000 Conversion Shares to which the Shareholders may be entitled under
Section 3.1(b)(iii) above, promptly following delivery to the Shareholders of
the EBITDA Calculation for the twelve (12) month period ended December 31, 2000,
160,000 Conversion Shares for each $250,000 (but not a portion thereof), if any,
that the EBITDA of the Surviving Corporation for the twelve (12) month period
ended December 31, 2000 exceeds $4,000,000 but not to exceed a total number of
Conversion Shares equal to the difference between (A) 800,000 and (B) the sum of
the total number of Recoupment Conversion Shares retained by the Shareholders
under Section 3.1(b)(i) above and the total number of 1999 Conversion Shares
issued to the Shareholders under Section 3.1(b)(ii) above (the "Additional 2000
Shares"), 66-2/3% of which will be issued to Xxxxxxxx and 33-1/3% of which will
be issued to the Limited Partnership.
(v) Notwithstanding the foregoing, (A) in the event a Change in
Control occurs on or before December 31, 1999, at the option of Parent and
Subsidiary, the obligations of Parent and Subsidiary under Sections 3.1(b)(i)
through 3.1(b)(iv) above shall be satisfied by permitting the Shareholders to
retain all of the Recoupment Conversion Shares and delivering to the
Shareholders 320,000 Conversion Shares upon the occurrence of such Change in
Control and (B) in the event a Change in Control occurs subsequent to December
31, 1999 but on or before December 31, 2000, at the option of Parent and
Subsidiary, the obligations of Parent
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and Subsidiary under Sections 3.1(b)(iii) and 3.1(b)(iv) above shall be
satisfied by delivery of 400,000 Conversion Shares upon the occurrence of such
Change in Control.
(c) For the purposes of calculating (i) the amounts of the 1999 Cash
Payment and/or 2000 Cash Payment, if any, that the Shareholders may be entitled
to under Section 3.1 (a) above, (ii) the number of Recoupment Conversion Shares
that must be transferred to Parent or may be retained by the Shareholders under
Section 3.1(b) above, and/or (iii) the number of 1999 Conversion Shares, 2000
Conversion Shares and/or Additional 2000 Conversion Shares, if any, that the
Shareholders may be entitled to under Sections 3.1(b) above, promptly following
each of December 31, 1999 and December 31, 2000, the Parent shall cause its
accountants to calculate and deliver to the Shareholders a report of the EBITDA
of the Surviving Corporation for the twelve (12) month period then ended (in
each instance, an "EBITDA Calculation").
(d) Other than in connection with a Change in Control, for purposes of
Sections 3.1(a) and (b) above, Parent agrees to maintain the Surviving
Corporation as an independent subsidiary and not merge it with or otherwise
consolidate it into Parent or any Affiliate of Parent until December 31, 1999,
or until Xxxxxxxx and the Limited Partnership are no longer entitled to receive
Cash Consideration or Share Consideration pursuant to Sections 3.1(a) or (b)
above. If the Surviving Corporation is merged with or otherwise consolidated
into any Person (whether Parent or an Affiliate of Parent) after December 31,
1999, until Xxxxxxxx and the Limited Partnership are no longer entitled to
receive Cash Consideration or Share Consideration pursuant to Sections 3.1(a) or
(b) above, Parent shall maintain (or cause its successor or the successor of the
Subsidiary to maintain) books and records so as to permit the separate
calculation of the EBITDA Calculation.
(e) The Conversion Shares to be delivered to each of the Shareholders
pursuant to the Merger in accordance with Section 3.1(b) hereof shall be subject
to the following restrictions on transfer:
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended, or applicable state securities
laws. These securities have been acquired for investment and not with
a view to distribution or resale, and may not be sold, pledged,
hypothecated or otherwise transferred without an effective
registration statement for such securities under the Securities Act of
1933, as amended, and applicable state securities laws, or the Company
has received the written opinion of counsel satisfactory to the
Company to the effect that registration is not required under such act
and applicable state securities laws.
The Company will furnish to the holder of this certificate upon
request and without charge a full statement describing the Company's
authority to issue different classes of shares of stock and different
series within a class, the designations, relative rights, preferences,
and limitations applicable to each class and limitations
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determined for each series, and the authority of the Board of
Directors to determine variations for future series.
The securities represented by this certificate are also subject to
additional restrictions on transfer specified in the Agreement and
Plan of Merger, dated as of March 31, 1999, among the Company, SBA
Construction Services, Inc., a Florida corporation, Com-Net
Construction Services, Inc., a California corporation, Xxxxxx X.
Xxxxxxxx, an individual, and Xxxxxxxx Family Limited Partnership, a
Tennessee limited partnership, as amended by the First Agreement and
Plan of Merger, dated as of April 30, 1999, among the Company, SBA
Construction Services, Inc., a Florida corporation, Com-Net
Construction Services, Inc., a California corporation, Xxxxxx X.
Xxxxxxxx, an individual, and Xxxxxxxx Family Limited Partnership, a
Tennessee limited partnership."
1.2 The first sentence of Section 3.2(b) of the Merger Agreement is
deleted in its entirety and replaced with the following:
"From and after the Effective Time, Xxxxxxxx and the Limited
Partnership shall be entitled to receive in exchange for surrendering to
Subsidiary their certificates which, immediately prior to the Effective Time,
represented outstanding Shares (the "Com-Net Certificates"), certificates
representing the Initial Conversion Shares described in Section 3.1(b) above."
ARTICLE II
MODIFICATION OF EMPLOYMENT TERMINATION PROVISIONS
2.1 Section 7.1(f)(ii) of the Merger Agreement is deleted in its entirety
and replaced with the following:
"(ii) Upon termination, Xxxxxxxx shall be entitled to receive his
Base Salary up to and including the effective date of such termination plus any
other benefits required by applicable law; provided, however, (A) if Xxxxxxxx is
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terminated pursuant to clauses (f)(i)(B) or (D) above, (1) neither Xxxxxxxx nor
the Limited Partnership shall be entitled to receive any Cash Consideration
pursuant to Section 3.1(a) or Share Consideration pursuant to Section 3.1(b) for
the calendar year in which such termination occurs or any year thereafter and
(2) Xxxxxxxx and the Limited Partnership shall transfer to Parent all of the
Recoupment Conversion Shares, (B) if Xxxxxxxx is terminated pursuant to clause
(f)(i)(F) above, Xxxxxxxx shall be entitled to receive severance compensation
equal to his then current Base Salary upon the occurrence of the Change in
Control and such other consideration to which he may be entitled under Sections
3.1(a)(ii) and 3.1(b)(iv) above, (C) if Xxxxxxxx is terminated pursuant to
clause (f)(i)(E) above, Xxxxxxxx shall be entitled to receive Cash Consideration
pursuant to Section 3.1(a) and Share Consideration pursuant to Section 3.1(b)
for the calendar year in which such disability occurs if, and only if, such
disability qualifies him to receive long-term disability benefits that the
Surviving Corporation's
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successor would provide to him as an officer of such successor entity and (D) if
Xxxxxxxx is terminated pursuant to clause (f)(i)(C) above, Xxxxxxxx shall be
entitled to receive Cash Consideration pursuant to Section 3.1(a) and Share
Consideration pursuant to Section 3.1(b) for the calendar year in which such
death occurs."
ARTICLE III
MODIFICATION OF INDEMNIFICATION PROVISIONS
3.1 Section 11.2 of the Merger Agreement is deleted in its entirety and
replaced with the following:
"11.2 Indemnification by the Shareholders and Com-Net. Each of
Xxxxxxxx, the Limited Partnership, its partners and the directors and officers
of Com-Net (prior to the Closing Date), jointly and severally, will indemnify
and hold harmless Parent Subsidiary and the Surviving Corporation (after the
Closing Date) and their respective Representatives, attorneys, officers,
directors, shareholders, controlling persons, and affiliates (collectively, the
"Subsidiary Indemnified Persons") for, and will pay to the Subsidiary
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Indemnified Persons the amount of, any loss, liability, claim, damage (including
incidental and consequential damages), expense (including costs of investigation
and defense and reasonable attorneys' fees) or diminution of value, whether or
not involving a third-party Claim (collectively, "Damages"), arising, directly
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or indirectly, from or in connection with (a) any Breach of any representation
or warranty made by Com-Net or any Shareholder in this Merger Agreement (without
giving effect to any supplement to the disclosure letter described therein), the
disclosure letter described therein, the supplements to the disclosure letter
described therein, or any other certificate or document delivered by Com-Net or
any Shareholder pursuant to this Merger Agreement, (b) any Breach of any
representation or warranty made by LLC or any member thereof in the SBA/LLC
Purchase Agreement (without giving effect to any supplement to the Disclosure
Letter), the Disclosure Letter, the supplements to the Disclosure Letter, or any
other certificate or document delivered by LLC or any member thereof pursuant to
the SBA/LLC Purchase Agreement, (c) any Breach by any Shareholder or Com-Net of
any covenant or obligation of such Shareholder or Com-Net in this Merger
Agreement, (d) any Breach by any member of LLC or by LLC of any covenant of any
such member or the LLC in the SBA/LLC Purchase Agreement, (e) any services
provided or Property owned by Com-Net prior to the Closing Date, (f) any claim
by any Person for brokerage or finder's fees or commissions or similar payments
based upon any agreement or understanding alleged to have been made by any such
Person with any Shareholder or Com-Net (or any Person acting on their behalf) in
connection with any of the Contemplated Transactions, (g) the Airplane Lease,
that certain Assignment, Acceptance and Waiver, dated April 30, 1999, among
Fleet National Bank, Com-Net Inc. and MAC Aviation LLC (the "Aircraft
Agreement"), and any documents or obligations related to the plane leased
pursuant to the Airplane Lease (the "Airplane") (such as, but not limited to any
agreements for maintenance, hangar space or pilot services), (h) the Com-Net
Stock Purchase Agreement, (i) the failure of Com-Net to have paid any personal
property taxes, business license fees and taxes, sales taxes, franchise excise
taxes, and ad valorem taxes arising out of or related to the period of time
prior to April 30, 1999, (j) the failure of Com-Net to have qualified to
business in any jurisdiction in which it was doing business in the period of
time prior
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to April 30, 1999, (k) any failure of Com-Net to have paid workers compensation
insurance or (l) any services performed by Com-Net for Xxxxxxxx or KLM Partners,
LLC. The remedies provided in this Section will not be exclusive of or limit any
other remedies that may be available to any of the Subsidiary Indemnified
Persons. Notwithstanding anything to the contrary set forth in this Merger
Agreement, none of Xxxxxxxx, the Limited Partnership, its partners or the
directors or officers of Com-Net shall have any liability or obligation, and the
Subsidiary Indemnified Persons shall have no rights, with respect to
indemnification or otherwise under this Section 11.2 with respect to any
damages, claims, losses, liabilities or reasonable expenses suffered by the
Subsidiary Indemnified Persons due to a matter within the scope of clauses (i)
through (k) above until the aggregate damages, claims, losses, liabilities or
reasonable expenses suffered by the Subsidiary Indemnified Persons due to
matters within the scope of clauses (i) through (k) above exceed the sum of
$50,000."
ARTICLE IV
PLEDGE OF STOCK
4.1 As security for the obligations of the Shareholders under the Merger
Agreement (as modified by this First Amendment) and for any amounts owed by
either of the Shareholders to either Parent or the Surviving Corporation,
whether under the Merger Agreement, this First Amendment, the SBA/LLC Purchase
Agreement, or otherwise (collectively, the "Obligations"), the Shareholders
covenant and agree as follows:
4.1 The Shareholders hereby grant to Parent and Subsidiary, and Parent and
Subsidiary shall have, a lien upon and security interest in (a) the Recoupment
Conversion Shares and (b) any (i) stock certificates (including, without
limitation, any certificates representing a stock dividend or distribution in
connection with any increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares, stock split, spinoff or
split-off), promissory note or other instrument, arising out of or related to
the Recoupment Conversion Shares, (ii) option or right, whether as an addition
to, substitution for, or in exchange for, any Recoupment Conversion Shares, or
otherwise, (iii) dividends payable in cash or in securities or other property
arising out of or related to the Recoupment Conversion Shares or (iv) dividends
or other distributions in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus or
paid-in surplus arising out of or related to the Recoupment Conversion Shares
(collectively, the "Additional Property")(the Recoupment Conversion Shares and
the Additional Property are collectively referred to as the "Collateral"). The
stock certificates for the Recoupment Conversion Shares, accompanied by stock
powers duly executed in blank, shall be delivered to Parent and Subsidiary at
the Closing. If the Shareholders receive, by virtue of their being or having
been owners of the Recoupment Conversion Shares, any Additional Property, the
Shareholders shall receive such stock certificates, promissory note, instrument,
option, right, payment or distribution in trust for the benefit of Parent and
Subsidiary, shall segregate it from their other property and shall deliver it
promptly to Parent and Subsidiary in the exact form received, with any necessary
indorsement and/or appropriate stock powers duly executed in blank, to be held
by Parent and Subsidiary as additional collateral security for the Obligations.
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4.2 Each Shareholder hereby represents and warrants that: (a) as of the
Closing Date and thereafter, he/it will be at all times the legal and beneficial
owner of the Collateral free and clear of any lien, except for the lien created
hereby, (b) as of the Closing Date and thereafter, each Shareholder will possess
the voting rights relating to the Collateral free and clear of any shareholders
agreement, voting trust or other restrictions, except for the restrictions
created hereby, and (c) this First Amendment creates a valid lien and security
interest in favor of Parent and Subsidiary in the Collateral as security for the
Obligations. Possession of the certificates representing the Recoupment
Conversion Shares, and all other certificates, instruments and cash constituting
Collateral from time to time, by Parent and Subsidiary results in the perfection
of such lien and security interest. Such lien and security interest is, or in
the case of Collateral in which the Shareholders obtain rights after the date
hereof, will be, a perfected, first priority lien and security interest. All
action necessary or desirable to perfect and protect such lien and security
interest will be taken as of the Closing Date, including without limitation,
Parent's and Subsidiary's having possession of certificates, instruments and
cash constituting Collateral after the date hereof.
4.3 In the event the Shareholders shall be entitled to retain all or any
of the Recoupment Conversion Shares in accordance with Section 3.1(b) or Section
7.1(f)(ii) of the Merger Agreement (collectively, the "Release Shares"), Parent
and Subsidiary shall deliver to the Shareholders the certificates representing
the Release Shares (including stock powers duly endorsed in blank), the Release
Shares (and any Additional Property pertaining to the Release Shares) shall be
released from the lien and security interest created hereby and Parent and
Subsidiary shall execute such documents as are necessary to release the Release
Shares (and any Additional Property pertaining to the Release Shares) from the
lien and security interest created hereby.
4.4 In the event either of the Shareholders shall fail to perform any of
their duties or obligations under the Merger Agreement (as modified by this
First Amendment) and shall fail to pay any amounts owed by either of the
Shareholders to either Parent or the Surviving Corporation, whether under the
Merger Agreement, this First Amendment, the SBA/LLC Purchase Agreement, or
otherwise, then Parent and/or Subsidiary shall have and may exercise from time
to time any and all rights and remedies of a secured party under the Uniform
Commercial Code of the State of Florida (including without limitation the right
to sell or liquidate all or any of the Collateral without notice) . Any and all
rights and remedies available to it under any other applicable law, and in
addition, all right, title and interest in the Collateral, at the option of
Parent or Subsidiary, shall be transferred to Parent or Subsidiary. Parent or
Subsidiary shall in that event be and become the registered and beneficial owner
of the Collateral subject to any applicable state and federal securities laws,
and the Shareholders shall cease to have any further interest therein.
4.5 The Shareholders hereby irrevocably appoint Parent and Subsidiary the
Shareholders' attorneys-in-fact and proxy, with full authority in the place and
stead of the Shareholders and in the name of the Shareholders or otherwise, from
time to time in the Parent's and Subsidiary's discretion, to take any action and
to execute any instrument with Parent or Subsidiary may deem necessary or
advisable to accomplish the purposes of this First Amendment,
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including, without limitation, to receive, indorse and collect all instruments
made payable to the Shareholders representing any dividend or other distribution
in respect of the Collateral or any part thereof and to give full discharge for
the same.
ARTICLE V
SUBORDINATION
5.1 The payment of any consideration under the Merger Agreement or this
Amendment (the "Consideration") is and shall be subordinated and junior, in the
manner hereinafter set forth, in right of payment to the prior payment in full
of all obligations of Parent or Subsidiary (collectively, the "Obligors") with
respect to present and future indebtedness, including interest, expenses and
indemnities whether before or after the institution by or against the Obligors
of proceedings under Title 11 of the United States Code, for borrowed money,
letters of credit and interest rate protection products from banks, trust
companies, finance companies, insurance companies, pension plans, mutual funds,
venture capital firms and other private or public institutional lenders ("Senior
Indebtedness"). The Merger Agreement and this Amendment are hereby subordinated
as a claim against the Obligors of any of their assets, whether such claim is in
the ordinary course of business or in the event of any dissolution, liquidation,
bankruptcy, receivership or reorganization of the Obligors (together, a
"Reorganization"), to the prior payment in full of the Senior Indebtedness.
Unless and until all Senior Indebtedness has been paid in full, no payment of
Consideration shall be made; provided, however, that the Obligors may pay
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Consideration when and as due so long as immediately after giving effect to such
payment (a) the holders of Senior Indebtedness or their representative have not
furnished the Shareholders with notice of an event of default that would permit
holders of Senior Indebtedness to accelerate the maturity thereof and (b) such
event of default has not been waived or cured. In the event of any
Reorganization, all Senior Indebtedness shall first be paid in full in cash
before any payment is made on account of the Consideration, and the Shareholders
authorize the holders of Senior Indebtedness to prove any claim on the
Consideration in a Reorganization to such extent, and to take any other action
necessary to effectuate the foregoing. If Consideration is paid to the
Shareholders in violation of the foregoing provisions, such Consideration shall
be held by such holder in trust for the benefit of the holders of Senior
Indebtedness. So long as any Senior Indebtedness is outstanding and its
maturity has not been accelerated, the Shareholders will not exercise any
remedies, including commencing or joining in any proceeding seeking to effect a
Reorganization; provided, however, that the Shareholders may exercise all such
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remedies if (I) an event of default in payment of the Consideration has occurred
and is continuing and (ii) either (A) the holders of Senior Indebtedness or
their representative have not furnished the Shareholders with notice of an event
of default that would permit holders of Senior Indebtedness to accelerate the
maturity thereof or (B) if such a notice has bene furnished, such event of
default has not been waived or cured. The Shareholders covenant to execute and
deliver such further instruments and to take such further action as the Obligors
or any holder of Senior Indebtedness may at any time reasonably request in order
to carry out the intent of these subordination provisions. The Shareholders
acknowledge and agree that these provisions are for the benefit of the holders
from time to time of Senior Indebtedness and may be enforced by them against the
Shareholders and that the holders of Senior Indebtedness have relied upon and
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will continue to rely upon these subordination provisions. The Shareholders
hereby waives notice or proof of reliance hereon.
ARTICLE VI
TITLE TO AND TRANSFER OF ASSETS
6.1 As contemplated by Section 4.17 of the Merger Agreement, Com-Net has
assigned and transferred certain of the Property to the LLC prior to the
Closing. The Shareholders will, from time to time, execute, acknowledge and
deliver such further instruments, and perform such additional acts, as Parent or
Subsidiary may reasonably request in order to more fully effectuate such
transfer.
6.2 In accordance with Section 4.17 of the Merger Agreement, Com-Net
represented and warranted that it had good title to certain of the Property free
and clear of all liens and encumbrances, excepting only the Permitted
Exceptions. In the conduct of due diligence, Parent and Subsidiary have
determined that such representation and warranty may not be accurate and certain
actions may need to be taken in order to vest good and marketable title to
certain of the Property in the LLC in connection with the transfer referred to
above. The Shareholders will, from time to time, execute, acknowledge and
deliver such further instruments, and perform such additional acts, as Parent or
Subsidiary may reasonably request in order to vest good and marketable title in
such Property in the LLC.
ARTICLE VII
MISCELLANEOUS
7.1 This First Amendment may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
7.2 Except as amended and modified hereby, the Merger Agreement is
unmodified and is in full force and effect.
7.3 The captions and headings of the various Sections of this First
Amendment are for convenience only and are not to be considered as defining or
limiting in any way the scope or intent of the provisions hereof.
7.4 The parties acknowledge that Subsidiary is a directly wholly owned
subsidiary of Parent rather than an indirectly wholly owned subsidiary of Parent
as described in the Merger Agreement but that it contemplated that Subsidiary
will become an indirectly wholly owned subsidiary of Parent following the
Closing.
7.5 Parent and Subsidiary acknowledge and agree that Com-Net and the
Shareholders delivered the Disclosure Letter contemplated by the Merger
Agreement concurrent herewith
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rather than within ten (10) days following the execution of the Merger Agreement
and Parent and Subsidiary waive any claims against Com-Net or the Shareholders
arising out of or related to the delivery of the Disclosure Letter concurrent
herewith rather than within ten (10) days following the execution of the Merger
Agreement.
7.6 As promptly as possible following the execution of this Amendment, the
Shareholders will cause the transaction contemplated by the Aircraft Agreement
to be consummated. Pending such consummation, the Shareholders hereby agree to
assume, pay and perform all duties and obligations of Com-Net under the Airplane
Lease and any documents related thereto and to pay all costs and expenses
arising out of or related to the Airplane. The Shareholders shall take such
actions as are necessary to keep the Airplane Lease and any documents related
thereto in full force and effect and without default and will permit the
Airplane to be used only by Xxx Xxxxxxxx in the performance of his duties as an
officer and employee of Subsidiary.
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THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER has been executed by
each Shareholder, Com-Net, Parent and Subsidiary on the dates set forth below.
SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
XXXXXX X. XXXXXXXX
XXXXXXXX FAMILY LIMITED PARTNERSHIP
/s/ Xxxxxx X. Xxxxxxxx
By: _______________________________________
Name: Xxxxxx X. Xxxxxxxx, as General
Partner
COM-NET CONSTRUCTION SERVICES
INC., a California corporation
/s/ Xxxxxx X. Xxxxxxxx
By: ______________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: President
SUBSIDIARY:
SBA CONSTRUCTION SERVICES,
INC., a Florida corporation
/s/ Xxxxxxx X. Xxxxxx
By: ______________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
PARENT:
SBA COMMUNICATIONS
CORPORATION, a Florida corporation
/s/ Xxxxxxx X. Xxxxxx
By: ______________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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