EXHIBIT F
STOCKHOLDER'S STOCK OPTION AGREEMENT
Stockholder's Stock Option Agreement (this "Agreement"), dated as of June 5,
1998, between DMA Holdings, Inc., a Delaware corporation ("DMA"), and Suncom
Communications, L.L.C., a Delaware limited liability company ("Suncom").
Whereas, as of the date hereof Suncom owns (either beneficially or of
record) 2,697,986 shares of common stock, par value $0.25 per share ("Company
Common Stock" or the "Shares"), of Audio Communication Network, Inc., a
Florida corporation;
Whereas, the Company, DMA and Diverse Media Acquisitions, Inc., a Florida
corporation ("DMA Sub"), propose to enter into an Agreement and Plan of
Merger, dated as of the date hereof (as the same may be amended from time to
time, the "Merger Agreement"), which provides, upon the terms and subject to
the conditions thereof, for the merger of DMA Sub with and into the Company
(the "Merger"); and
Whereas, as a condition to the willingness of DMA to enter into the Merger
Agreement, DMA has requested that Suncom agree, and, in order to induce DMA to
enter into the Merger Agreement, Suncom has agreed, to grant DMA options to
purchase the Shares;
Now, Therefore, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
ARTICLE I
The Options
Section 1.01. Grant of Options. Suncom hereby grants to DMA an irrevocable
option (the "Option") to purchase the entire amount of Suncom's Shares at a
price per Share equal to $6.40 (the "Purchase Price"). The Option shall expire
if not exercised prior to the close of business on the 60th day following
termination of the Merger Agreement. The Option shall also expire if the
Merger Agreement is terminated pursuant to Section 7.01(c) thereof.
Section 1.02. Exercise of Options. Provided that (a) to the extent
necessary, any applicable waiting periods (and any extension thereof) under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976 and the rules and
regulations promulgated thereunder (the "HSR Act") with respect to the
exercise of the Option shall have expired or been terminated and (b) no
preliminary or permanent injunction or other order, decree or ruling issued by
any court or governmental or regulatory authority, domestic or foreign, of
competent jurisdiction prohibiting the exercise of the Option or the delivery
of Shares shall be in effect, DMA may exercise the Option at any time and from
time to time following termination of the Merger Agreement (other than a
termination pursuant to Section 7.01(c) thereof) until the expiration of such
Option. In the event that DMA wishes to exercise the Option, DMA shall give
written notice (the date of such notice being herein called the "Notice Date")
to Suncom specifying a place and date (not later than ten Business Days (as
defined below) and not earlier than three Business Days following the Notice
Date) for closing such purchase (the "Closing"). For the purposes of this
Agreement, the term "Business Day" shall mean a Saturday, a Sunday or a day on
which banks are not required or authorized by law or executive order to be
closed in the City of New York.
Section 1.03. Payment for and Delivery of Certificates. At the Closing, (a)
DMA shall pay the aggregate Purchase Price for the Shares being purchased from
Suncom by wire transfer in immediately available funds of the total amount of
the Purchase Price for such Shares to an account designated by Suncom by
written notice to DMA, and (b) Suncom shall deliver to DMA a certificate or
certificates evidencing Suncom's Shares, and Suncom agrees that such Shares
shall be transferred free and clear of all liens. All such certificates shall
be
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duly endorsed in blank, or with appropriate stock powers, duly executed in
blank, attached thereto, in proper form for transfer, with the signature of
Suncom's duly authorized representative thereon guaranteed, and with all
applicable taxes paid or provided for.
ARTICLE II
Representations and Warranties of Suncom
Suncom hereby represents and warrants to DMA as follows:
Section 2.01. Due Organization, etc. Suncom is duly organized and validly
existing under the laws of the jurisdiction of its incorporation or
organization. Suncom has full power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of Suncom. This Agreement has been duly executed and
delivered by or on behalf of Suncom and, assuming its due authorization,
execution and delivery by DMA, constitutes a legal, valid and binding
obligation of Suncom, enforceable against Suncom in accordance with its terms,
subject to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights generally
and subject, as to enforceability, to the effect of general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
Section 2.02. No Conflicts; Required Filings and Consents. (a) The execution
and delivery of this Agreement by Suncom do not, and the performance of this
Agreement by Suncom will not, (i) conflict with or violate the operating
agreement or similar organizational document of Suncom, (ii) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to
Suncom or by which it or any of its properties is bound or affected or (iii)
result in any breach of or constitute a default (or an event that 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 a lien or encumbrance on any of the property or assets of
Suncom or any of its subsidiaries pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Suncom is a party or by which Suncom or any
of its properties is bound or affected, except for any such breaches, defaults
or other occurrences that would not cause or create a material risk of non-
performance or delayed performance by Suncom of its obligations under this
Agreement.
(b) The execution and delivery of this Agreement by Suncom do not, and the
performance of this Agreement by Suncom will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign, except (i) for
applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (the "Exchange Act"), and
the HSR Act and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
prevent or delay the performance by Suncom of its obligations under this
Agreement.
Section 2.03. Title to Shares. At the Closing, Suncom will deliver good and
valid title to its Shares free and clear of any pledge, lien, security
interest, charge, claim, equity, option, proxy, voting restriction, right of
first refusal or other limitation on disposition or encumbrance of any kind,
other than pursuant to this Agreement, which will be eliminated prior to or at
the Closing, Suncom has full right, power and authority to sell, transfer and
deliver its Shares pursuant to this Agreement. Upon delivery of such Shares
and payment of the Purchase Price therefor as contemplated herein, DMA will
receive good and valid title to such Shares, free and clear of any pledge,
lien, security interest, charge, claim, equity, option, proxy, voting
restriction or encumbrance of any kind.
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ARTICLE III
Representations and Warranties of DMA
DMA hereby represents and warrants to Suncom as follows:
Section 3.01. Due Organization, etc. DMA is a corporation duly organized and
validly existing under the laws of the State of Delaware. DMA has all
necessary corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby by DMA have been duly authorized by all necessary
corporate action on the part of DMA. This Agreement has been duly executed and
delivered by DMA and, assuming its due authorization, execution and delivery
by Suncom, constitutes a legal, valid and binding obligation of DMA,
enforceable against DMA in accordance with its terms.
Section 3.02. No Conflict; Required Filings and Consents. (a) The execution
and delivery of this Agreement by DMA do not, and the performance of this
Agreement by DMA will not, (i) conflict with or violate the Certificate of
Incorporation or By-laws of DMA, (ii) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to DMA or by which DMA or any
of its properties is bound or affected or (iii) result in any breach of or
constitute a default (or an event that 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 a
lien or encumbrance on any of the property or assets of DMA pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which DMA is a party or by
which it or any of its properties is bound or affected, except for any such
breaches, defaults or other occurrences that would not cause or create a
material risk of non-performance or delayed performance by DMA of its
obligations under this Agreement.
(b) The execution and delivery of this Agreement by DMA do not, and the
performance of this Agreement by DMA will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign, except (i) for
applicable requirements, if any, of the Exchange Act and the HSR Act and (ii)
where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
the performance by DMA of its obligations under this Agreement.
Section 3.03. Investment Intent. The purchase of Shares from Suncom pursuant
to this Agreement is for the account of DMA for the purpose of investment and
not with a view to or for sale in connection with any distribution thereof
within the meaning of the Securities Act, and the rules and regulations
promulgated thereunder.
ARTICLE IV
Transfer and Voting of Shares
Section 4.01. Transfer of Shares. During the term of the Option, and except
as otherwise provided herein, Suncom shall not (a) sell, pledge or otherwise
dispose of any of its Shares, (b) deposit its Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such Shares or
grant any proxy with respect thereto or (c) enter into any contract, option or
other arrangement or undertaking with respect to the direct or indirect
acquisition or sale, assignment, transfer or other disposition of any Company
Common Stock.
Section 4.02. Voting of Shares; Further Assurances. (a) Suncom, by this
Agreement, with respect to those Shares that it owns of record, does hereby
constitute and appoint DMA, or any nominee of DMA, with full power of
substitution, during and for the term of the Option granted by Suncom
hereunder (or, following termination of the Merger Agreement, during such
periods as the Option is exercisable), as its true and lawful attorney and
proxy, for and in its name, place and stead, to vote each of such Shares as
its proxy at every annual,
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special or adjourned meeting of the stockholders of the Company (including the
right to sign its name (as stockholder) to any consent, certificate or other
document relating to the Company that the law of the State of Florida may
permit or require) (i) in favor of the adoption of the Merger Agreement and
approval of the Merger and the other transactions contemplated by the Merger
Agreement, (ii) against any proposal for any recapitalization, merger, sale of
assets or other business combination between the Company and any person or
entity (other than the Merger) or any other action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or which
could result in any of the conditions to the Company's obligations under the
Merger Agreement not being fulfilled and (iii) in favor of any other matter
relating to consummation of the transactions contemplated by the Merger
Agreement. Suncom further agrees to cause the Shares owned by it beneficially
to be voted in accordance with the foregoing. Suncom acknowledges receipt and
review of a copy of the Merger Agreement.
(b) If DMA shall exercise the Option in accordance with the terms of this
Agreement, and without additional consideration, Suncom shall execute and
deliver further transfers, assignments, endorsements, consents and other
instruments as DMA may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement and the Merger
Agreement, including the transfer of any and all of Suncom's Shares to DMA and
the release of any and all liens, claims and encumbrances covering such
Shares.
(c) Suncom shall perform such further acts and execute such further
documents and instruments as may reasonably be required to vest in DMA the
power to carry out the provisions of this Agreement.
ARTICLE V
General Provisions
Section 5.01. 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 DMA:
DMA Holdings, Inc.
c/o Integrated Capital Associates
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
with a copy to:
Shearman & Sterling
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
(b) If to SUNCOM:
Suncom Communications, L.L.C.
0000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile No.: (000) 000-0000
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Section 5.02. 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 5.03. 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 to the
fullest extent permitted by applicable law in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent
possible.
Section 5.04. Entire Agreement. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to
the subject matter hereof.
Section 5.05. Parties in Interest. 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 person
any right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
Section 5.06. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or in equity.
Section 5.07. Governing Law. Except to the extent that Florida Law is
mandatorily applicable to the rights of the stockholders of the Company, this
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York applicable to contracts executed and to be performed
entirely within that state. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined in any federal
district court sitting in the City of New York.
Section 5.08. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed 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 have executed this Agreement as of the date
first written above.
DMA Holdings, Inc.
By
Name: _______________________________
Title: ______________________________
Suncom Communications, L.L.C.
By
Name: _______________________________
Title: ______________________________
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