SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 29, 2000
BREDA TELEPHONE CORP.
(Exact name of registrant as specified in its charter)
Iowa 0-26525 42-0895882
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation) File Number) Identification No.)
Highway 217 East, P.O. Box 190, Breda, Iowa 51436
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (712) 673-2311
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Item 2. Acquisition or Disposition of Assets.
Prairie Telephone Company, Inc. ("Prairie Telephone") is one of Breda Telephone
Corp.'s wholly owned subsidiaries. Prairie Telephone is an Iowa corporation. Its
primary business is providing telephone services to subscribers in Farragut,
Iowa, Pacific Junction, Iowa, Yale, Iowa, and the surrounding rural areas that
are within a ten to fifteen mile radius of each of those towns.
Prairie Telephone also has investments in other entities which provide cellular
phone services or which invest in other cellular phone or telecommunications
ventures.
One of those investments is in the common stock of Central Iowa Cellular, Inc.
Central Iowa Cellular, Inc. is an Iowa corporation that was incorporated in
December of 1983. Central Iowa Cellular, Inc. was organized by Prairie Telephone
and some other Iowa based independent telephone companies. Prairie Telephone
owns 3,000 shares of common stock of Central Iowa Cellular, Inc. Those 3,000
shares constitute 20% of the total issued and outstanding shares of stock of
Central Iowa Cellular, Inc.
Central Iowa Cellular, Inc. was organized for the purpose of becoming a partner
in Des Moines MSA General Partnership. Des Moines MSA General Partnership is an
Iowa partnership which provides cellular telephone services to customers within
the Des Moines, Iowa metropolitan area. Central Iowa Cellular, Inc. owns 24% of
the partnership interests in Des Moines MSA General Partnership. The remaining
76% of the partnership interests in Des Moines MSA General Partnership are owned
by AirTouch Iowa, LLC, a Delaware limited liability company.
On March 29, 2000, AirTouch Iowa, LLC, Central Iowa Cellular, Inc., Prairie
Telephone, and the other shareholders of Central Iowa Cellular, Inc. entered
into a Stock Purchase Agreement whereby AirTouch Iowa, LLC will, subject to the
satisfaction of the various conditions set forth in the Stock Purchase
Agreement, acquire all of the issued and outstanding shares of stock of Central
Iowa Cellular, Inc. from all of its shareholders, including Prairie Telephone.
After the closing of the Stock Purchase Agreement, AirTouch Iowa, LLC will own
all of the issued and outstanding shares of stock of Central Iowa Cellular,
Inc., and will thereby acquire the 24% of the partnership interests of Des
Moines MSA General Partnership which are owned by Central Iowa Cellular, Inc.
Under the Stock Purchase Agreement, Prairie Telephone will sell all of its 3,000
shares of common stock in Central Iowa Cellular, Inc. to AirTouch Iowa, LLC for
$5,100,000. The purchase price was a negotiated price that Prairie Telephone and
Breda Telephone Corp. believe is representative of the fair value of Prairie
Telephone's shares of stock in Central Iowa Cellular, Inc., and no formula or
other fixed or identifiable principles were utilized in establishing the
purchase price. The purchase price will be payable to Prairie Telephone in full
at the closing of the Stock Purchase Agreement, by wire transfer of immediately
available funds.
The closing is to occur on the later to occur of:
o five business days after the satisfaction of all conditions set forth
in the Stock Purchase Agreement, and
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o the earlier of (i) five business days after the date of the Stage I
Closing, as that term is defined in the U.S. Wireless Alliance
Agreement dated September 21, 1999 by and between Bell Atlantic
Corporation and Vodafone AirTouch, Plc, and (ii) April 30, 2000.
The obligation of AirTouch Iowa, LLC, Prairie Telephone and the other
shareholders of Central Iowa Cellular, Inc. to close the sale of stock
contemplated by the Stock Purchase Agreement is subject to various conditions,
including satisfaction of all of the filing and other requirements under the
Hart- Scott-Rodino Act. The Stock Purchase Agreement is subject to termination
if any of those conditions precedent are not satisfied, and there can be no
guarantee that all of the conditions precedent will be satisfied. Prairie
Telephone currently contemplates, however, that all of the conditions precedent
will be satisfied, and that the transactions contemplated by the Stock Purchase
Agreement will close within approximately 4 to 6 weeks of the date of the
execution of the Stock Purchase Agreement.
The purchase price payable for Prairie Telephone's shares will be reduced in the
amount of Prairie Telephone's pro rata portion of the Hart-Scott-Rodino Act
filing fees. The Stock Purchase Agreement provides in this regard that AirTouch
Iowa, LLC has the right to reduce the total purchase price payable by it for all
of the shares of the issued and outstanding stock of Central Iowa Cellular, Inc.
in an amount equal to 24% of such filing fees, but not including legal fees.
Prairie Telephone will be responsible for 20% of that amount. Prairie Telephone
does not contemplate that the amount will be material. Prairie Telephone is also
responsible for any transfer taxes or fees as may be due in connection with the
sale of its shares of common stock in Central Iowa Cellular, Inc. to AirTouch
Iowa, LLC. Prairie Telephone does not contemplate that any of those taxes or
fees will be material in amount.
Some of the various representations, warranties and covenants given and made by
Central Iowa Cellular, Inc. and the shareholders of Central Iowa Cellular, Inc.
in the Stock Purchase Agreement are made jointly and severally, so Prairie
Telephone may have liability for a breach of the Stock Purchase Agreement by
Central Iowa Cellular, Inc. or any one or more of the other shareholders of
Central Iowa Cellular, Inc.
Prairie Telephone also entered into a Des Moines Tower Proceeds Agreement dated
as of March 29, 2000, in connection with the Stock Purchase Agreement. The
parties to the Des Moines Tower Proceeds Agreement are Prairie Telephone, the
other shareholders of Central Iowa Cellular, Inc., and AirTouch Communications,
Inc. The Des Moines Tower Proceeds Agreement has two primary purposes.
One is to address the August 6, 1999 sublease agreement that was entered into by
Des Moines MSA General Partnership with AirTouch Communications, Inc., American
Tower Corporation and American Tower L.P. Under that sublease agreement,
American Tower L.P. is obligated, subject to the satisfaction of certain
conditions, to pay Des Moines MSA General Partnership for subleases on certain
wireless communication towers. Under the Des Moines Tower Proceeds Agreement,
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AirTouch Communications, Inc. agrees that it will pay to each shareholder of
Central Iowa Cellular, Inc. its proportionate share of the Tower Net Proceeds
received by AirTouch Communications, Inc. from American Tower L.P. under the
sublease agreement for the towers listed in the Des Moines Tower Proceeds
Agreement. The term "Tower Net Proceeds" is defined to mean 24% of the gross
cash proceeds received by AirTouch Communications, Inc. under the sublease
agreement, minus 24% of certain fees. Prairie Telephone's proportionate share of
the Tower Net Proceeds will be 20% of those proceeds. Prairie Telephone
estimates that it will receive approximately $438,857 in Tower Net Proceeds
payments.
The second primary purpose of the Des Moines Tower Proceeds Agreement is to
address the repurchase of the warrants to purchase stock of American Tower
Corporation that are currently held by Des Moines MSA General Partnership. The
aggregate purchase price payable for the warrants will be the monetization value
multiplied by 343 for each of the towers listed in the Des Moines Tower Proceeds
Agreement. The term "monetization value" means the average closing price of
American Tower Corporation's stock, as quoted on the principal stock exchange or
National Market System upon which such stock is traded, for the five trading
days immediately preceding the closing date of the Stock Purchase Agreement,
minus $22. Prairie Telephone's proportionate share of these payments will be
20%, which is, again, based upon its 20% ownership of the total issued and
outstanding shares of stock of Central Iowa Cellular, Inc. It is difficult to
predict the amount of payments that will be received by Prairie Telephone given
that the method of determining the monetization value depends upon the average
closing price of American Tower Corporation's stock over the five trading days
immediately preceding the closing date of the Stock Purchase Agreement, and the
closing date may not occur for at least up to four to six weeks from the date of
the execution of the Stock Purchase Agreement on March 29, 2000. Prairie
Telephone estimates, however, that the aggregate payment to be received by it in
this regard may range anywhere from $25,000 to $35,000.
The closing of the Des Moines Tower Proceeds Agreement is also subject to
various conditions, and it is likely that the transactions contemplated by the
Des Moines Tower Proceeds Agreement will not close unless and until the closing
of the transactions contemplated by the Stock Purchase Agreement.
The negotiations for the sale of the issued and outstanding shares of stock in
Central Iowa Cellular, Inc. initially began and arose out of the proposed
assignment and transfer by AirTouch Iowa, LLC of its interest in Des Moines MSA
General Partnership to another entity. Prairie Telephone and the other
shareholders of Central Iowa Cellular, Inc. took the position that the proposed
assignment granted them a right of first refusal and possibly other rights under
their agreement with AirTouch Iowa, LLC. Prairie Telephone and the other
shareholders of Central Iowa Cellular, Inc. determined, however, after
negotiations, to sell their shares of stock in Central Iowa Cellular, Inc. to
AirTouch Iowa, LLC rather than attempting to enforce their rights of first
refusal. The primary factor which caused Prairie Telephone to reach this
determination was Prairie Telephone's and Breda Telephone Corp.'s determination
that the purchase price offered by AirTouch Iowa, LLC was favorable.
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Item 7. Financial Statements and Exhibits.
Exhibits
The following are the exhibits to this Form 8-K.
Exhibit No. Description of Exhibit
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2.1 Stock Purchase Agreement dated March 29,
2000, by and among AirTouch Iowa, LLC,
Central Iowa Cellular, Inc., Prairie
Telephone Company, Inc., Panora
Telecommunications, Inc., Walnut Creek
Communications, Inc., Minburn Telephone
Company, and Interstate Enterprises, Ltd.
Exhibits A, B and C to the Stock Purchase
Agreement are not included with this filing.
Exhibit A lists the names, addresses, and
number of shares of stock of Central Iowa
Cellular, Inc. owned by each of the
shareholders of Central Iowa Cellular, Inc.,
along with the purchase price payable for
those shares by AirTouch Iowa, LLC. Exhibit
B is the Mutual General Release that was
executed by the parties in connection with
the Stock Purchase Agreement. Exhibit C is
the form of legal opinion required to be
given by the counsel for the shareholders of
Central Iowa Cellular, Inc.
2.2 Des Moines Tower Proceeds Agreement dated as
of March 29, 2000, by and among AirTouch
Communications, Inc., Panora
Telecommunications, Inc., Walnut Creek
Communications, Inc., Minburn Telephone
Company, Interstate Enterprises, Ltd. and
Prairie Telephone Company, Inc., along with
Exhibits A and B thereto.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BREDA TELEPHONE CORP.
Date: April 12, 2000 By: /s/ Dean Schettler
------------------
Dean Schettler, President
5
Execution Copy
STOCK PURCHASE AGREEMENT
by and among
AIRTOUCH IOWA, LLC
as Buyer
CENTRAL IOWA CELLULAR, INC.
Company
and
all of the stockholders of
Central Iowa Cellular, Inc., as named herein
March 29, 2000
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STOCK PURCHASE AGREEMENT
INDEX
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 1. SALE OF SHARES AND PURCHASE PRICE............................................................1
1.1 Transfer of Company Shares...................................................................1
1.2 Purchase Price and Payment...................................................................1
1.3 Stockholders' Deliveries.....................................................................2
1.4 Buyer's Deliveries...........................................................................2
1.5 Time and Place of Closing....................................................................3
1.6 Consent to Future Transfers and Assignments..................................................3
1.7 Further Assurances...........................................................................4
1.8 Transfer Taxes...............................................................................4
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND STOCKHOLDERS...............................4
2.1 Organization and Qualifications of the Company...............................................4
2.2 Organization and Qualifications of the Stockholders..........................................4
2.3 Capital Stock of the Company; Beneficial Ownership...........................................5
2.4 Power and Authority..........................................................................5
2.5 Assets, Liabilities and Business Activities of the Company...................................6
2.6 No Litigation................................................................................6
2.7 Compliance with Laws.........................................................................6
2.8 Tax Returns and Payments.....................................................................6
2.9 Corporate Record Books, etc..................................................................6
2.10 Financial Statements.........................................................................7
2.11 Absence of Certain Changes...................................................................7
2.12 Disclosure...................................................................................8
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BUYER......................................................8
3.1 Organization of Buyer........................................................................8
3.2 Authority of Buyer...........................................................................8
3.3 Litigation...................................................................................9
3.4 Disclosure...................................................................................9
SECTION 4. COVENANTS OF THE COMPANY AND THE STOCKHOLDERS................................................9
4.1 Making of Covenants and Agreements...........................................................9
4.2 Conduct of Business..........................................................................9
4.3 Authorization from Others...................................................................10
4.4 Notice of Default...........................................................................10
4.5 Cooperation of the Company and Stockholders.................................................10
4.6 Hart-Scott-Rodino Filings...................................................................10
4.7 Tax Returns.................................................................................11
4.8 Confidentiality.............................................................................11
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 5. COVENANTS OF BUYER..........................................................................11
5.1 Making of Covenants and Agreement...........................................................11
5.2 Hart-Scott-Rodino Filings...................................................................11
5.3 Authorization from Others...................................................................11
5.4 Cooperation of the Company and Stockholders Filings.........................................11
5.5 Confidentiality.............................................................................11
SECTION 6. CONDITIONS..................................................................................12
6.1 Conditions to the Obligations of Buyer......................................................12
6.2 Conditions to Obligations of the Company and the Stockholders...............................13
SECTION 7. TERMINATION OF AGREEMENT; RIGHTS TO PROCEED.................................................14
7.1 Termination.................................................................................14
7.2 Effect of Termination.......................................................................14
7.3 Right to Proceed............................................................................15
SECTION 8. RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING................................................15
8.1 Survival of Warranties......................................................................15
SECTION 9. INDEMNIFICATION.............................................................................15
9.1 Indemnification by the Stockholders.........................................................15
9.2 Limitations on Indemnification by the Stockholders; Survival of Representations and
Warranties..................................................................................16
9.3 Indemnification by Buyer....................................................................16
9.4 Limitation on Indemnification by Buyer; Survival of Representations and Warranties..........16
9.5 Notice; Defense of Claims...................................................................17
SECTION 10. MISCELLANEOUS...............................................................................17
10.1 Expenses....................................................................................17
10.2 Governing Law...............................................................................18
10.3 Notices.....................................................................................18
10.4 Entire Agreement............................................................................19
10.5 Assignability; Binding Effect...............................................................19
10.6 Captions and Gender.........................................................................20
10.7 Execution in Counterparts...................................................................20
10.8 Amendments..................................................................................20
</TABLE>
Exhibits
Exhibit A.........List of Stockholders
Exhibit B.........Form of Mutual General Release
Exhibit C.........Form of Legal Opinion from Stockholders' Counsel
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, entered into as of March 29, 2000, by and
among AirTouch Iowa, LLC, a Delaware limited liability company ("Buyer"),
Central Iowa Cellular, Inc., an Iowa corporation (the "Company"), and the
corporations listed on Exhibit A (each individually, a "Stockholder" and
collectively, the "Stockholders"),
W I T N E S S E T H:
WHEREAS, Buyer is the owner of a 76% general partnership interest in Des
Moines MSA General Partnership, a Delaware general partnership (the
"Partnership") and the Company is the owner of the remaining 24% general
partnership interest in the Partnership (the "Partnership Interest"); and
WHEREAS, the Stockholders own of record and beneficially all of the issued
and outstanding capital stock of the Company, consisting of 15,000 shares of the
Company's Common Stock, $1.00 par value per share (said shares being referred to
herein as the "Company Shares"); and
WHEREAS, the Stockholders desire to sell all of the Company Shares to
Buyer, and Buyer desires to acquire all of the Company Shares:
NOW, THEREFORE, in order to consummate said purchase and sale and in
consideration of the mutual agreements set forth herein, the parties hereto
agree as follows:
SECTION 1. SALE OF SHARES AND PURCHASE PRICE.
1.1 Transfer of Company Shares. At the Closing, Stockholders shall deliver
or cause to be delivered to Buyer stock certificates representing all of the
Company Shares. The number of Company Shares owned by each Stockholder is set
forth in Exhibit A. Such stock certificates shall be duly endorsed in blank for
transfer or shall be presented with stock powers duly executed in blank, with
such signature guarantees and such other documents as may be reasonably required
by Buyer to effect a valid transfer of the Company Shares by Stockholders, free
and clear of any and all liens, security interests, restrictions, pledges,
encumbrances, charges or claims of any kind. Stockholders by execution of this
Agreement hereby appoint Buyer as their attorney-in-fact to effectuate transfer
of the Company Shares at the Closing (as hereinafter defined).
1.2 Purchase Price and Payment. In consideration of the sale by
Stockholders to Buyer of the Company Shares and in reliance upon the
representations and warranties of the Company and the Stockholders herein
contained and made at the Closing and subject to the satisfaction of all of the
conditions contained herein, Buyer agrees that at the Closing it will deliver to
each Stockholder the amount specified next to such Stockholder's name in Exhibit
A hereto (collectively, the "Purchase Price"), subject to a pro-rata deduction
of the amount of the Hart-Scott-Rodino filing fees for which the Stockholders
are responsible pursuant to Section 4.6 by wire transfer of immediately
available funds.
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1.3 Stockholders' Deliveries. At the Closing, the Stockholders shall
deliver to Buyer:
(a) all stock register books of the Company;
(b) all minute books of the Company;
(c) the corporate seals of the Company;
(d) a general release running to the Company, Buyer and all of Buyer's
affiliates, including without limitation the Partnership, executed by all of the
Stockholders and all officers and directors of the Company in substantially the
form attached as Exhibit B;
(e) the Certificate of Incorporation of the Company, certified by the
Secretary of State of the State of Iowa, and the By-Laws of the Company,
certified by the Secretary of the Company;
(f) a certificate executed by the President or any Vice President of the
Company and by each of the Stockholders stating that (i) all of the
representations and warranties made by them in this Agreement are true on and as
of the Closing with the same effect as though such representations and
warranties had been made and given on the Closing and (ii) the Stockholders and
the Company have performed or complied with all of their respective obligations
under this Agreement which are to be performed or complied with prior to or on
the Closing, dated as of the Closing;
(g) certificates of existence issued by appropriate governmental
authorities evidencing the good standing of the Company as a corporation in the
State of Iowa, and in each state where the Company is doing business, as of a
date not more than twenty (20) days prior to the Closing and where possible a
confirming telegram as of a date not more than three (3) days prior to the
Closing;
(h) letters of resignation, effective as of the Closing, from each of the
current officers and directors of the Company;
(i) an opinion letter from the Stockholders' legal counsel in the form
annexed hereto as Exhibit C; and
(j) stock certificates representing all of the Company Shares, each duly
endorsed in blank for transfer or presented with stock powers duly executed in
blank, with such signature guarantees and such other documents as may be
reasonably required by Buyer to effect a valid transfer of the Company Shares by
Stockholders, free and clear of any and all liens, security interests,
restrictions, pledges, encumbrances, charges or claims of any kind.
1.4 Buyer's Deliveries. At the Closing, Buyer shall deliver:
(a) to each Stockholder, the portion of the Purchase Price to be paid to
that Stockholder, as set forth in Section 1.2 hereof;
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(b) a certificate executed by the President or any Vice President of Buyer,
dated as of Closing stating that (i) all of the representations and warranties
made by Buyer in this Agreement are true on and as of the Closing with the same
effect as though such representations and warranties had been made and given as
of Closing and (ii) Buyer has performed and complied with all of its obligations
under this Agreement which are to be performed or complied with prior to or on
the Closing; and
(c) a general release running to the Company, the Stockholders and all of
their respective Affiliates, executed by Buyer and the Partnership in
substantially the form attached as Exhibit B.
1.5 Time and Place of Closing. The closing of the purchase and sale
provided for in this Agreement (herein called the "Closing") shall be held at
the offices of Pillsbury Madison & Sutro LLP at 50 Fremont Street, San
Francisco, California on the later to occur of: (a) five (5) business days after
the satisfaction of all conditions set forth in Section 6 of this Agreement, and
(b) the earlier of (i) five (5) business days after the date of the Stage I
Closing (as defined in that certain U.S. Wireless Alliance Agreement dated
September 21, 1999 by and between Bell Atlantic Corporation and Vodafone
AirTouch Plc), and (ii) April 30, 2000, or at such other place or an earlier or
later date or time as may be mutually agreed upon by the parties.
1.6 Consent to Future Transfers and Assignments. For and in consideration
of the covenants and promises set forth in this Agreement, the Company and the
Stockholders, on their behalf and on behalf of their respective Affiliates,
predecessors, successors and assigns (and any other person or entity claiming an
interest through or under any of them) hereby: (a) consent to the assignment and
transfer of Buyer, or Buyer's interest in the Partnership, to Cellco, a Delaware
general partnership, or another entity of which Vodafone AirTouch Plc and Bell
Atlantic Corporation, directly or indirectly, would own, collectively a majority
of the equity and voting interests (Cellco or any such other entity being
referred to herein as the "Joint Venture") and, upon accomplishment of such
transfer, to substituting the Joint Venture as General Partner of the
Partnership and to continuing the business of the Partnership with the Joint
Venture as General Partner (the "Approved Transfer") and (b) waive any claimed
right of first refusal, right to purchase or other right to restrict transfer in
respect of, and any right to prevent the consummation of, the Approved Transfer;
provided, however, that if the Closing does not take place by no later than the
latest date set forth in Section 1.5 hereof, then the provisions of this Section
1.6 shall be null and void and of no effect. The Approved Transfer may be
accomplished directly, or, at the election of Vodafone AirTouch Plc or its
Affiliates, indirectly through an intermediate transfer to an Affiliate of
Vodafone AirTouch Plc which may then transfer Buyer or Buyer's interest in the
Partnership to the Joint Venture. Neither Buyer's request for nor its receipt of
the Company's and Stockholders' consent as set forth in this Section 1.6
constitutes an admission or concession by Vodafone AirTouch Plc or its
Affiliates of any requirement to obtain such consent, or of any liability or
wrongdoing on account of any claims of any party against Vodafone AirTouch Plc
or its Affiliates in connection with the Joint Venture or that certain U.S.
Wireless Alliance Agreement, dated as of September 21, 1999, by and between
Vodafone AirTouch Plc and Bell Atlantic Corporation, as the same may from time
to time be amended, and the related agreements referred to therein and the
transactions and activities contemplated thereby or conducted thereunder. For
the purposes of this Agreement, "Affiliates" shall mean any affiliated entity
controlled by, controlling, or under common control with the
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entity and/or its Affiliates, and any current or former constituent partners,
members, shareholders and affiliates of the entity, or an Affiliate.
Notwithstanding the foregoing, nothing in this Agreement shall be deemed a
waiver of the Stockholders' claimed rights of first refusal under the
Partnership Agreement if the Closing does not take place by no later than the
latest date set forth in Section 1.5 hereof.
1.7 Further Assurances. The Stockholders from time to time after the
Closing at the request of Buyer and without further consideration shall execute
and deliver further instruments of transfer and assignment and take such other
action as Buyer may reasonably require to more effectively transfer and assign
to, and vest in, Buyer the Company Shares and all rights thereto, and to fully
implement the provisions of this Agreement.
1.8 Transfer Taxes. All transfer taxes, fees and duties under applicable
law incurred in connection with the sale and transfer of the Company Shares
under this Agreement will be borne and paid by the Stockholders, and the
Stockholders shall promptly reimburse the Company and Buyer for any such tax,
fee or duty which any of them is required to pay under applicable law.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND STOCKHOLDERS.
As a material inducement to Buyer to enter into this Agreement and
consummate the transactions contemplated hereby, the Company and the
Stockholders jointly and severally hereby make to Buyer the representations and
warranties contained in this Section 2.
2.1 Organization and Qualifications of the Company. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of Iowa with full corporate power and authority to own or lease its properties
and to conduct its business in the manner and in the places where such
properties are owned or leased or such business is currently conducted or
proposed to be conducted. The copies of the Company's Articles of Incorporation
as amended to date, certified by the Iowa Secretary of State, and of the
Company's bylaws, as amended to date, certified by the Company's Secretary, and
heretofore delivered to Buyer's counsel, are complete and correct, and no
amendments thereto are pending. The Company is not in violation of any term of
its Articles of Incorporation or Bylaws.
2.2 Organization and Qualifications of the Stockholders. Each Stockholder
is a corporation duly organized, validly existing and in good standing under the
laws of Iowa with full corporate power and authority to own or lease its
properties and to conduct its business in the manner and in the places where
such properties are owned or leased or such business in currently conducted or
proposed to be conducted. The copies of each Stockholder's Certificate of
Incorporation as amended to date, certified by the Iowa Secretary of State, and
of each Stockholder's bylaws, as amended to date, certified by the Company's
Secretary, and heretofore delivered to Buyer's counsel, are complete and
correct, and no amendments thereto are pending. None of the Stockholders is in
violation of any term of its Certificate of Incorporation or Bylaws.
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2.3 Capital Stock of the Company; Beneficial Ownership.
(a) The authorized capital stock of the Company consists of 100,000 shares
of Common Stock, $1.00 per share, of which 15,000 shares are duly and validly
issued, outstanding, fully paid and non-assessable and of which 85,000 shares
are authorized but unissued. There are no outstanding options, warrants, rights,
commitments, preemptive rights or agreements of any kind for the issuance or
sale of, or outstanding securities convertible into, any additional shares of
capital stock of any class of the Company. None of the Company's capital stock
has been issued in violation of any federal or state law.
(b) Each Stockholder owns beneficially and of record the Company Shares set
forth opposite such Stockholder's name on Exhibit A hereto free and clear of any
liens, security interests, restrictions, pledges, encumbrances, charges or
claims of any kind. Such Company Shares are, and when delivered by each
Stockholder to Buyer pursuant to this Agreement, will be duly authorized,
validly issued, fully paid, non-assessable and free and clear of all liens,
security interests, restrictions, pledges, encumbrances, charges or claims of
any kind.
2.4 Power and Authority. The Company and each of the Stockholders has full
right, authority and power to enter into this Agreement and each agreement,
document and instrument to be executed and delivered by the Company or the
Stockholders, as the case may be, pursuant to this Agreement and to carry out
the transactions contemplated hereby. The execution, delivery and performance by
the Company and each of the Stockholders of this Agreement and each such other
agreement, document and instrument have been duly authorized by all necessary
action of the Company or each Stockholder, as the case may be, and in each case
no other action on the part of the Company or such Stockholder is required in
connection therewith except for any filings referred to in Section 4.6.
This Agreement and each agreement, document and instrument executed and
delivered by the Company or each Stockholder, as the case may be, pursuant to
this Agreement constitutes, or when executed and delivered will constitute,
valid and binding obligations of the Company or the Stockholders, as the case
may be, enforceable in accordance with their terms. The execution, delivery and
performance by the Company or each Stockholder, as the case may be, of this
Agreement and each such agreement, document and instrument:
(a) does not and will not violate any provision of the Certificate of
Incorporation or Bylaws of the Company or Stockholder;
(b) does not and will not violate any laws of the United States, or any
state or other jurisdiction applicable to the Company or any Stockholder or
require the Company or any Stockholder to obtain any approval, consent or waiver
of, or make any filing with, any person or entity (governmental or otherwise)
that has not been obtained or made; and
(c) does not and will not result in a breach of, constitute a default
under, accelerate any obligation under, or give rise to a right of termination
of any indenture or loan or credit agreement or any other agreement, contract,
instrument, mortgage, lien, lease, permit, authorization, order, writ, judgment,
injunction, decree, determination or arbitration award to which the Company or
any Stockholder is a party or by which the property of the Company or the
Company Shares is bound or affected, or result in the creation or imposition of
any liens,
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security interests, restrictions, pledges, encumbrances, charges or claims of
any kind on any of the Company's assets or the Company Shares.
2.5 Assets, Liabilities and Business Activities of the Company. The Company
at all times on and since the date of its organization has not had any assets,
properties or interests in any entity or business of any kind other than the
contract rights under this Agreement and the rights as a partner under that
certain Partnership Agreement of Des Moines MSA General Partnership dated as of
February 20, 1986, as amended (the "Partnership Agreement"), including a 24.0%
general partnership interest in the Partnership, and all times on and since the
date of its organization has had, and at the Closing will have, no liabilities
or obligations of any nature (known or unknown, absolute, accrued, contingent or
otherwise) other than: (a) two loans from the Rural Telephone Finance
Cooperative (the "RTFC") to the Company as reflected on the Company's Financial
Statements for the period ending October 31, 1999 (together, the "RTFC Loans"),
each of which shall be repaid in full (which may include payments from the
Company's cash reserve) prior to the Closing, (b) capital certificates issued by
the RTFC in connection with the RTFC Loans, which shall be redeemed prior to or
at the Closing, (c) those expressly contemplated by or set forth in this
Agreement or the Partnership Agreement, and (d) that certain loan from the West
Des Moines Iowa State Bank which was repaid in full in 1990. The Company was
organized on December 28, 1983 and has conducted no business operations or
activities other than those contemplated by the Partnership Agreement. The
Company has no employees. The Company has no subsidiaries or other interests in
any company, corporation, partnership, joint venture or other entity other than
the Partnership. The Company is not a party to, or bound by, any contract or
agreement, other than this Agreement, the Partnership Agreement and agreements
relating to the RTFC Loans.
2.6 No Litigation. There is no pending or, to the best knowledge of the
Company and the Stockholders, threatened action, lawsuit, proceeding or
investigation before any court, governmental agency or arbitrator against or
affecting the Company or its assets or which might adversely affect the
Company's ability to perform its obligations under this Agreement. There is no
pending or, to the best knowledge of the Stockholders, threatened action,
lawsuit, proceeding or investigation before any court, governmental agency or
arbitrator against or affecting any Stockholder or their respective properties
or assets, which if decided adversely to such Stockholder or adversely with
respect to its property or assets, would reasonably be expected to adversely
affect the Company, its assets, or the ability of the Company or any of the
Stockholders to perform their respective obligations under this Agreement.
2.7 Compliance with Laws. The Company's business has been conducted in
compliance with all applicable laws.
2.8 Tax Returns and Payments. The Company has duly filed all federal,
state, and local tax returns and reports required to be filed and has duly paid
or established reserves which are consistent with the past experience of the
Company for the proper payment of, all taxes and other governmental charges upon
it and its properties, assets, income, franchises, licenses, or sales
(collectively, "Taxes"). All such returns are accurate in all material respects.
The Internal Revenue Service has audited and settled or the statute of
limitations has run upon all federal income tax returns of the Company for all
fiscal years ended on or prior to October 31, 1996. There is no unpaid
assessment, tax, or proposal by any taxing authority for additional taxes for
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which the Company does not have adequate reserves for any such fiscal period;
provided, however, that for purposes of this Section 2.8 the Company shall not
be deemed to have any liability arising out of the tax audit of the Partnership
currently being conducted by the Internal Revenue Service, unless such liability
is the result of the Company's willful or intentional act.
As of October 31, 1999, the Company had made overpayments on its fiscal
year 1999 federal taxes in the amount of $113,000 to the Internal Revenue
Service. On February 13, 2000, the Company made an estimated federal tax payment
to the Internal Revenue Service in the amount of $200,000. On February 29, 2000,
the Company made an estimated state tax payment to the Department of Revenue of
the State of Iowa in the amount of $92,000. Except to the extent that any tax
audit of the Partnership conducted by the Internal Revenue Service results in
additional tax liability to the Company, as of the Closing Date the Company's
aggregate accrued federal and state tax liability will be estimated at $475,000.
2.9 Corporate Record Books, etc. The Company's corporate record books are
in all material respects in good order, complete, accurate, up to date with all
necessary signatures, and set forth all meetings and actions taken by the
shareholders and directors of the Company. The stock transfer books and stock
ledgers are each in good order, complete, accurate, up to date with all
necessary signatures, and set forth all stock and securities issued,
transferred, and surrendered together with evidence of any required stock
transfer tax information in conformance with all applicable requirements.
2.10 Financial Statements. The Company has delivered to Buyer unaudited
balance sheets of the Company for its fiscal years ending on October 31, 1999,
1998, and 1997 and statements of income, retained earnings and cash flows for
the three years then ended, prepared by Kiesling Associates LLP, independent
public accountants. The balance sheet as of October 31, 1999 shall be referred
to as the "Base Balance Sheet."
Said financial statements have been prepared in accordance with generally
accepted accounting principles applied consistently during the periods covered
thereby, are complete and correct in all material respects and present fairly in
all material respects the financial condition of the Company at the dates of
said statements and the results of its operations for the periods covered
thereby.
2.11 Absence of Certain Changes. Since the date of the Base Balance Sheet
there has not been:
(a) Any change in the financial condition, properties, assets, liabilities,
business or operations of the Company, which change by itself or in conjunction
with all other such changes, whether or not arising in the ordinary course of
business, has been materially adverse with respect to the Company;
(b) Any contingent liability incurred by the Company as guarantor with
respect to the obligations of others or otherwise or any cancellation of any
material debt or claim owing to, or waiver of any material right of, the
Company;
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(c) Any purchase, sale or other disposition, or any agreement or other
arrangement for the purchase, sale or other disposition, of any of the
properties or assets of the Company other than in the ordinary course of
business;
(d) Any damage, destruction or loss, whether or not covered by insurance,
materially and adversely affecting the properties, assets or business of the
Company;
(e) Any other transaction entered into by the Company other than
transactions in the ordinary course of business; or
(f) Any agreement or understanding whether in writing or otherwise, for the
Company to take any of the actions specified in paragraphs (a) through (e)
above.
2.12 Disclosure. The representations, warranties and statements contained
in this Agreement and in the certificates, exhibits and schedules delivered to
Buyer by the Company and the Stockholders pursuant to this Agreement do not
contain any untrue statement of a material fact, and, when taken together, do
not omit to state a material fact required to be stated therein or necessary in
order to make such representations, warranties or statements not misleading in
light of the circumstances under which they were made.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BUYER.
As a material inducement to the Company and the Stockholders to enter into
this Agreement and consummate the transactions contemplated hereby, Buyer hereby
makes the representations and warranties to the Company and the Stockholders
contained in this Section 3.
3.1 Organization of Buyer. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of Delaware with full corporate
power to own or lease its properties and to conduct its business in the manner
and in the places where such properties are owned or leased or such business is
conducted by it. Buyer is not in violation of any term of its Certificate of
Incorporation or Bylaws.
3.2 Authority of Buyer. Buyer has full right, authority and power to enter
into this Agreement and each agreement, document and instrument to be executed
and delivered by Buyer pursuant to this Agreement and to carry out the
transactions contemplated hereby. The execution, delivery and performance by
Buyer of this Agreement and each such other agreement, document and instrument
have been duly authorized by all necessary corporate action of Buyer and no
other action on the part of Buyer is required in connection therewith.
This Agreement and each agreement, document and instrument executed and
delivered by the Buyer pursuant to this Agreement constitutes, or when executed
and delivered will constitute, valid and binding obligations of the Buyer
enforceable in accordance with their terms. The execution, delivery and
performance by the Buyer of this Agreement and each such agreement, document and
instrument:
(a) does not and will not violate any laws of the United States, or any
state or other jurisdiction applicable to Buyer or require Buyer to obtain any
approval, consent or waiver of, or
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make any filing with, any person or entity (governmental or otherwise) that has
not been obtained or made; and
(b) does not and will not result in a breach of, constitute a default
under, accelerate any obligation under, or give rise to a right of termination
of any indenture or loan or credit agreement or any other agreement, contract,
instrument, mortgage, lien, lease, permit, authorization, order, writ, judgment,
injunction, decree, determination or arbitration award to which Buyer is a party
or by which the property of Buyer is bound or affected, or result in the
creation or imposition of any liens, security interests, restrictions, pledges,
encumbrances, charges or claims of any kind on any of Buyer's assets.
3.3 Litigation. There is no pending or, to the best knowledge of Buyer,
threatened action, lawsuit, proceeding or investigation before any court,
governmental agency or arbitrator against or affecting Buyer or its assets or
which might adversely affect Buyer's ability to perform its obligations under
this Agreement.
3.4 Disclosure. The representations, warranties and statements contained in
this Agreement and in the certificates, exhibits and schedules delivered to the
Stockholders by the Buyer pursuant to this Agreement do not contain any untrue
statement of a material fact, and, when taken together, do not omit to state a
material fact required to be stated therein or necessary in order to make such
representations, warranties or statements not misleading in light of the
circumstances under which they were made.
SECTION 4. COVENANTS OF THE COMPANY AND THE STOCKHOLDERS.
4.1 Making of Covenants and Agreements. The Company and each of the
Stockholders jointly and severally hereby make the covenants and agreements set
forth in this Section 4 and the Stockholders agree to cause the Company to
comply with such agreements and covenants. No Stockholder shall have any right
of indemnity or contribution from the Company with respect to the breach of any
covenant or agreement hereunder.
4.2 Conduct of Business. Between the date of this Agreement and the Closing
Date, the Company will:
(a) Conduct its business only in the ordinary course and consistent with
prior practices and refrain from changing or introducing any method of
management or operations;
(b) Refrain from making any purchase, sale or disposition of any asset or
property, from purchasing any capital asset and from subjecting to a lien or
security interest, pledging, restricting or otherwise encumbering any of its
properties or assets other than in the ordinary course of business;
(c) Refrain from incurring any contingent liability as a guarantor with
respect to the obligations of others, or otherwise and from incurring any other
contingent or fixed obligations or liabilities of any kind;
(d) Refrain from making any change or incurring any obligation to make a
change in its Articles of Incorporation, By-laws or authorized or issued capital
stock;
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(e) Refrain from declaring, setting aside or paying any dividend, making
any other distribution in respect of its capital stock or making any direct or
indirect redemption, purchase or other acquisition of its stock;
(f) Refrain from making any change in the compensation payable or to become
payable to any of its officers, employees, agents or independent contractors;
(g) Refrain from prepaying any loans (if any) from its stockholders,
officers or directors or making any change in its borrowing arrangements, other
than a repayment of all outstanding loans from the RTFC to the Company, all of
which loans shall be paid immediately prior to the Closing;
(h) Use its best efforts to prevent any change with respect to its
management and supervisory personnel and banking arrangements;
(i) Have in effect and maintain at all times all insurance of the kind and
in the amounts which is customary within in the industry; and
(j) Permit Buyer and its authorized representatives to have full access to
all its properties, assets, records, tax returns, contracts and documents and
furnish to Buyer or its authorized representatives such financial and other
information with respect to its business or properties as Buyer may from time to
time reasonably request.
4.3 Authorization from Others. Prior to the Closing Date, each of the
Stockholders and the Company will use its best efforts to obtain all
authorizations, consents and permits of others required to permit the
consummation by the Stockholders and the Company of the transactions
contemplated by this Agreement.
4.4 Notice of Default. Promptly upon the occurrence of, or promptly upon
the Company or a Stockholder becoming aware of the impending or threatened
occurrence of, any event which would cause or constitute a breach or default, or
would have caused or constituted a breach or default had such event occurred or
been known to the Company or such Stockholder prior to the date hereof, of any
of the representations, warranties or covenants of the Company or the
Stockholders contained in or referred to in this Agreement or in any schedule or
exhibit referred to in this Agreement, the Company or the Stockholders shall
give detailed written notice thereof to Buyer and the Company and the
Stockholders shall use their best efforts to prevent or promptly remedy the
same.
4.5 Cooperation of the Company and Stockholders. The Company and each of
the Stockholders shall cooperate with all reasonable requests of Buyer and
Buyer's counsel in connection with the consummation of the transactions
contemplated hereby and to satisfy each of the conditions to Closing set forth
in Section 6.1.
4.6 Hart-Scott-Rodino Filings. The Company and the Stockholders (i) shall
cooperate with Buyer in connection with all required filings under Section 7A of
the Clayton Act ("Hart-Scott-Rodino") and shall furnish all follow-up
information in connection with such filings, and further agree that Buyer shall
have the right to reduce the Purchase Price by an
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amount equal to twenty-four percent (24%) of such filing fees (not including
legal fees) incurred in connection with such filings.
4.7 Tax Returns. The Company and the Stockholders shall cooperate with
Buyer to permit the Company and the Partnership in accordance with applicable
law to promptly prepare and file on or before the due date or any extension
thereof all federal, state and local tax returns required to be filed by the
Company and the Partnership with respect to taxable periods ending on or before
the Closing.
4.8 Confidentiality. The Company and the Stockholders agree that, unless
and until the Closing has been consummated, each of the Company, the
Stockholders and their officers, directors, agents and representatives will not
disclose the existence of this Agreement or its terms without the prior written
consent of the other parties, other than any disclosure required by law,
including without limitation, disclosures required to be made in: (a) any filing
required by any governmental authority, including, without limitation, any
filing required to be made with the Federal Communications Commission or the
Securities and Exchange Commission, (b) at any annual meeting of stockholders or
members or at any annual meeting of stockholders or members of a parent company,
or in any communication to stockholders, held by the Company or any of the
Stockholders, (c) as required by court order or law or (d) in connection with an
action to enforce this Agreement.
SECTION 5. COVENANTS OF BUYER.
5.1 Making of Covenants and Agreement. Buyer hereby makes the covenants and
agreements set forth in this Section 5.
5.2 Hart-Scott-Rodino Filings. Buyer shall cooperate with the Company in
connection with all required filings under Section 7A of the Clayton Act
("Hart-Scott-Rodino") and shall furnish all follow-up information required in
connection therewith.
5.3 Authorization from Others. Prior to the Closing Date, Buyer will use
its best efforts to obtain all authorizations, consents and permits of others
required to permit the consummation by Buyer of the transactions contemplated by
this Agreement.
5.4 Cooperation of the Company and Stockholders Filings. Buyer shall
cooperate with all reasonable requests of the Company, the Stockholders and the
Stockholders' counsel in connection with the consummation of the transactions
contemplated hereby.
5.5 Confidentiality. The Buyer agrees that, unless and until the Closing
has been consummated, Buyer and its officers, directors, agents and
representatives will not disclose the existence of this Agreement or its terms
without the prior written consent of the other parties, other than (a) as
required by court order or law or (b) in connection with an action to enforce
this Agreement.
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SECTION 6. CONDITIONS.
6.1 Conditions to the Obligations of Buyer. The obligation of Buyer to
consummate this Agreement and the transactions contemplated hereby are subject
to the fulfillment, prior to or at the Closing, of the following conditions
precedent:
(a) Representations; Warranties; Covenants. Each of the representations and
warranties of the Company and the Stockholders contained in Section 2 shall be
true and correct as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing; and the Company and each of the
Stockholders shall, on or before the Closing, have performed all of their
obligations hereunder, which by the terms hereof are to be performed on or
before the Closing.
(b) No Material Change. There shall have been no material adverse change in
the financial condition, prospects, properties, assets, liabilities, business or
operations of the Company since the date hereof, whether or not in the ordinary
course of business, except with regard to any material adverse change resulting
from a material adverse change in the financial condition, prospects,
properties, assets, liabilities, business or operations of the Partnership since
the date hereof.
(c) Certificate from Officers. The Stockholders shall have delivered to
Buyer a certificate as described in Subsection 1.3(f) hereof, dated as of the
Closing and to the effect that the statements set forth in paragraph (a) and (b)
above in this Section 6.1 are true and correct.
(d) Opinion of Counsel. On the Closing Date, Buyer shall have received from
Davis, Brown, Koehn, Shors & Roberts P.C. counsel for the Company and the
Stockholders, an opinion as of said date, in form attached hereto as Exhibit C.
(e) No Litigation. There shall have been no determination by the Buyer,
acting in good faith, that the consummation of the transactions contemplated by
this Agreement has become inadvisable or impracticable by reason of the
institution or threat by any person or any federal, state or other governmental
authority of litigation, proceedings or other action against Buyer, the Company,
the Partnership or the Stockholders.
(f) Consents. The Company or the Stockholders shall have made all filings
with and notifications of governmental authorities, regulatory agencies and
other entities required to be made by the Company or the Stockholders in
connection with the execution and delivery of this Agreement, the performance of
the transactions contemplated hereby and the continued operation of the business
of the Company and the Partnership by Buyer subsequent to the Closing; and the
Company, the Stockholders and Buyer shall have received all authorizations,
waivers, consents and permits, in form and substance reasonably satisfactory to
Buyer, from all third parties, including, without limitation, applicable
governmental authorities, regulatory agencies, lessors, lenders and contract
parties, required to permit the continuation of the business of the Company and
the Partnership and the consummation of the transactions contemplated by this
Agreement, and to avoid a breach, default, termination, acceleration or
modification of any indenture, loan or credit agreement or any other agreement,
contract, instrument, mortgage, lien, lease, permit, authorization, order, writ,
judgment, injunction, decree, determination or
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arbitration award as a result of, or in connection with, the execution and
performance of this Agreement.
(g) Hart-Scott-Rodino. All required filings under the Hart-Scott-Rodino Act
shall have been completed and all applicable time limitations under such Act
shall have expired without a request for further information by the relevant
federal authorities under such Act, or in the event of such a request for
further information, the expiration of all applicable time limitations under the
Act shall have occurred without the objection of such federal authorities.
(h) Absence of Liens or Encumbrances. As of the Closing, there shall be no
lien, security interest, restriction, pledge, encumbrance, charge or claim of
any kind on any of the assets or properties of the Company, including without
limitation the Partnership Interest, or on the Company Shares, including without
limitation any lien, security interest, restriction, pledge, encumbrance, charge
or claim of any kind held by or imposed by the Rural Telephone Finance Corp.
6.2 Conditions to Obligations of the Company and the Stockholders. The
obligation of the Company and the Stockholders to consummate this Agreement and
the transactions contemplated hereby is subject to the fulfillment, prior to or
at the Closing, of the following conditions precedent:
(a) Representations; Warranties; Covenants. Each of the representations and
warranties of Buyer contained in Section 3 shall be true and correct as though
made on and as of the Closing; Buyer shall, on or before the Closing, have
performed all of its obligations hereunder which by the terms hereof are to be
performed on or before the Closing, including, without limitation, delivery of
the Purchase Price to the Stockholders as set forth in Section 1.2 and
Subsection 1.4(b) hereof.
(b) Certificate from Officers. Buyer shall have delivered to the Company
and the Stockholders a certificate as described in Subsection 1.4(b) hereof,
dated as of the Closing and to the effect that the statements set forth in
paragraph (a) and (b) above in this Section 6.2 are true and correct.
(c) Hart-Scott-Rodino. All required filings under the Hart-Scott-Rodino Act
shall have been completed and all applicable time limitations under such Act
shall have expired without a request for further information by the relevant
federal authorities under such Act, or in the event of such a request for
further information, the expiration of all applicable time limitations under the
Act without the objection of such federal authorities.
(d) No Litigation. There shall have been no determination by the
Stockholders, acting in good faith, that the consummation of the transactions
contemplated by this Agreement has become inadvisable or impracticable by reason
of the institution or threat by any person or any federal, state or other
governmental authority of litigation, proceedings or other action against Buyer,
the Company, the Partnership or the Stockholders.
(e) Consents. The Buyer shall have made all filings with and notifications
of governmental authorities, regulatory agencies and other entities required to
be made by the Buyer in connection with the execution and delivery of this
Agreement, the performance of
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the transactions contemplated hereby and the continued operation of the business
of the Company and the Partnership by Buyer subsequent to the Closing; and the
Company, the Stockholders and Buyer shall have received all authorizations,
waivers, consents and permits, in form and substance reasonably satisfactory to
Buyer, from all third parties, including, without limitation, applicable
governmental authorities, regulatory agencies, lessors, lenders and contract
parties, required to permit the continuation of the business of the Company and
the Partnership and the consummation of the transactions contemplated by this
Agreement, and to avoid a breach, default, termination, acceleration or
modification of any indenture, loan or credit agreement or any other agreement,
contract, instrument, mortgage, lien, lease, permit, authorization, order, writ,
judgment, injunction, decree, determination or arbitration award as a result of,
or in connection with, the execution and performance of this Agreement.
SECTION 7. TERMINATION OF AGREEMENT; RIGHTS TO PROCEED.
7.1 Termination. At any time prior to the Closing, this Agreement may be
terminated as follows:
(a) by mutual written consent of all of the parties to this Agreement;
(b) by Buyer, pursuant to written notice by Buyer to the Company and the
Stockholders, if any of the conditions set forth in Section 6.1 of this
Agreement have not been satisfied at or prior to the Closing, or if it has
become reasonably and objectively certain that any of such conditions, other
than a condition within the control of the Company or any Stockholder, will not
be materially satisfied at or prior to the Closing, such written notice to set
forth such conditions which have not been or will not be so satisfied; and
(c) by the Company and the Stockholders, pursuant to written notice by the
Company and the Stockholders to Buyer, if any of the conditions set forth in
Section 6.2 of this Agreement have not been satisfied at or prior to the
Closing, or if it has become reasonably and objectively certain that any of such
conditions, other than a condition within the control of Buyer, will not be
satisfied at or prior to the Closing, such written notice to set forth such
conditions which have not been or will not be so satisfied.
7.2 Effect of Termination. All obligations of the parties hereunder shall
cease upon any termination pursuant to Section 7.1, provided, however, that (a)
the provisions of this Section 1.6, Section 7, Section 9 and Section 10.1 hereof
shall survive any termination of this Agreement; (b) nothing herein shall
relieve any party from any liability for a material error or omission in any of
its representations or warranties contained herein or a material failure to
comply with any of its covenants, conditions or agreements contained herein, if
such error, omission or failure was deliberate or willful (a "Deliberate
Breach"), but in the absence of a Deliberate Breach, the liability of the
responsible party to the other party shall be limited to out-of-pocket expenses
incurred by the other party in connection with negotiating, preparing and
entering into this Agreement and carrying out the transactions contemplated
hereby and (iii) any party may proceed as further set forth in Section 7.3
below. For purposes of this Agreement, and subject to the terms and conditions
set forth herein, failure by Buyer to deliver the Purchase Price
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at the Closing as set forth in Section 1.2 and Subsection 1.4(b) (provided that
all closing conditions have been met) hereof shall constitute a Deliberate
Breach. In addition, failure by the Stockholders to deliver stock certificates
representing all of the Company Shares, each duly endorsed in blank for transfer
or presented with stock powers duly executed in blank, with such signature
guarantees and such other documents as may be reasonably required by Buyer to
effect a valid transfer of the Company Shares by Stockholders, free and clear of
any and all liens, security interests, restrictions, pledges, encumbrances,
charges or claims of any kind shall also constitute a Deliberate Breach.
7.3 Right to Proceed. Anything in this Agreement to the contrary
notwithstanding, if any of the conditions specified in Section 6.1 hereof have
not been satisfied, Buyer shall have the right to proceed with the transactions
contemplated hereby without waiving any of its rights hereunder, and if any of
the conditions specified in Section 6.2 hereof have not been satisfied, the
Stockholders shall have the right to proceed with the transactions contemplated
hereby without waiving any of their rights hereunder.
SECTION 8. RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING.
8.1 Survival of Warranties. Each of the representations, warranties,
agreements, covenants and obligations herein or in any schedule, exhibit,
certificate or financial statement delivered by any party to the other party
incident to the transactions contemplated hereby are material, shall be deemed
to have been relied upon by the other party and shall survive the Closing
regardless of any investigation and shall not merge in the performance of any
obligation by either party hereto; provided, however, that such representations
and warranties shall expire on the same dates as and to the extent that the
rights to indemnification with respect thereto under Section 9 shall expire.
SECTION 9. INDEMNIFICATION.
9.1 Indemnification by the Stockholders. The Stockholders indemnify and
hold the Company, Buyer and their respective subsidiaries and affiliates and
persons serving as officers, directors, partners or employees thereof
(individually a "Buyer Indemnified Party" and collectively the "Buyer
Indemnified Parties") harmless from and against any damages, liabilities,
losses, Taxes (except any tax liability incurred as a result of any tax audit
referenced in Section 2.8) fines, penalties, costs, and expenses (including,
without limitation, reasonable fees of counsel) of any kind or nature
whatsoever, whether or not arising out of third-party claims and including all
amounts paid in investigation, defense or settlement of the foregoing,
(collectively, "Losses") which may be sustained or suffered by any of them
arising out of or based upon any of the following matters:
(a) fraud, intentional misrepresentation or a deliberate or willful breach
by the Company or any Stockholder of any of their representations, warranties or
covenants under this Agreement or in any certificate, schedule or exhibit
delivered pursuant hereto;
(b) any other breach of any representation, warranty or covenant of the
Company or any Stockholder under this Agreement or in any certificate, schedule
or exhibit delivered pursuant hereto, or by reason of any claim, action or
proceeding asserted or instituted growing
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out of any matter or thing constituting a breach of such representations,
warranties or covenants; and
(c) any liability of the Company for Taxes (except any tax liability
incurred as a result of any tax audit referenced in Section 2.8) arising from an
event or transaction prior to the Closing which have not been paid or provided
for or reserved against by the Company or a Subsidiary, including without
limitation, any increase in Taxes due to the unavailability of any loss or
deduction claimed by the Company.
(d) Notwithstanding the foregoing, no Stockholder shall be responsible for
more than 20% of any Losses.
9.2 Limitations on Indemnification by the Stockholders; Survival of
Representations and Warranties.
(a) Notwithstanding the foregoing, no indemnification shall be payable to a
Buyer Indemnified Party with respect to claims asserted pursuant to Subsection
9.1(b) after the three year anniversary of the Closing; and provided further
that, if and to the extent that any claim for indemnification relates to Taxes
(except any tax liability incurred as a result of any tax audit referenced in
Section 2.8), such claim shall survive until sixty (60) days after the
expiration of any applicable statue of limitations.
(b) In the event that notice of any claim for indemnification pursuant to
Section 9.1 is given within the applicable period, the representation and
warranty that is the subject of such indemnification shall survive with respect
to such claim until such time as such claim is finally resolved.
9.3 Indemnification by Buyer. Buyer agrees to indemnify and hold the
Stockholders and their respective subsidiaries and affiliates and persons
serving as officers, directors, partners or employees thereof (individually a
"Stockholder Indemnified Party" and collectively the "Stockholder Indemnified
Parties") harmless from and against any damages, liabilities, losses and
expenses (including, without limitation, reasonable fees of counsel) of any kind
or nature whatsoever (whether or not arising out of third-party claims and
including all amounts paid in investigation, defense or settlement of the
foregoing) which may be sustained or suffered by any of them arising out of or
based upon any breach of any representation, warranty or covenant made by Buyer
in this Agreement or in any certificate delivered by Buyer hereunder, or by
reason of any claim, action or proceeding asserted or instituted growing out of
any matter or thing constituting such a breach.
9.4 Limitation on Indemnification by Buyer; Survival of Representations and
Warranties.
(a) Notwithstanding the foregoing, the right of Stockholder Indemnified
Parties with respect to claims asserted pursuant to Section 9.3 after the
expiration of the applicable statute of limitations, provided that all
representations and warranties of Buyer set forth herein shall survive until the
three year anniversary of the Closing; provided that, if and to the extent that
any such representation relates to Taxes (except any tax liability incurred as a
result of any tax audit
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referenced in Section 2.8), such representation and warranty shall survive until
sixty (60) days after the expiration of any applicable statue of limitations.
(b) In the event that notice of any claim for indemnification pursuant to
Section 9.3 is given within the applicable period, the representation and
warranty that is the subject of such indemnification shall survive with respect
to such claim until such time as such claim is finally resolved.
9.5 Notice; Defense of Claims. An indemnified party may make claims for
indemnification hereunder by giving written notice thereof to the indemnifying
party within the period in which indemnification claims can be made hereunder.
If indemnification is sought for a claim or liability asserted by a third party,
the indemnified party shall also give written notice thereof to the indemnifying
party promptly after it receives notice of the claim or liability being
asserted, but the failure to do so shall not relieve the indemnifying party from
any liability except to the extent that it is prejudiced by the failure or delay
in giving such notice. Such notice shall summarize the bases for the claim for
indemnification and any claim or liability being asserted by a third party.
Within 20 days after receiving such notice the indemnifying party shall give
written notice to the indemnified party stating whether it disputes the claim
for indemnification and whether it will defend against any third party claim or
liability at its own cost and expense. If the indemnifying party fails to give
notice that it disputes an indemnification claim within 20 days after receipt of
notice thereof, it shall be deemed to have accepted and agreed to the claim,
which shall become immediately due and payable. The indemnifying party shall be
entitled to direct the defense against a third party claim or liability with
counsel selected by it (subject to the consent of the indemnified party, which
consent shall not be unreasonably withheld) as long as the indemnifying party is
conducting a good faith and diligent defense. The indemnified party shall at all
times have the right to fully participate in the defense of a third party claim
or liability at its own expense directly or through counsel; provided, however,
that if the named parties to the action or proceeding include both the
indemnifying party and the indemnified party and the indemnified party is
advised that representation of both parties by the same counsel would be
inappropriate under applicable standards of professional conduct, the
indemnified party may engage separate counsel at the expense of the indemnifying
party. If no such notice of intent to dispute and defend a third party claim or
liability is given by the indemnifying party, or if such good faith and diligent
defense is not being or ceases to be conducted by the indemnifying party, the
indemnified party shall have the right, at the expense of the indemnifying
party, to undertake the defense of such claim or liability (with counsel
selected by the indemnified party), and to compromise or settle it, exercising
reasonable business judgment. If the third party claim or liability is one that
by its nature cannot be defended solely by the indemnifying party, then the
indemnified party shall make available such information and assistance as the
indemnifying party may reasonably request and shall cooperate with the
indemnifying party in such defense, at the expense of the indemnifying party.
SECTION 10. MISCELLANEOUS.
10.1 Expenses.
(a) Except (i) any fees in connection with Hart-Scott-Rodino filings, which
shall be paid by the parties as set forth in Sections 4.6 hereof, and (ii) as
set forth in Subsection 7.2, each
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of the parties will bear its own expenses in connection with the negotiation and
the consummation of the transactions contemplated by this Agreement, and no
expenses of the Company or the Stockholders relating in any way to the purchase
and sale of the Company Shares hereunder and the transactions contemplated
hereby, including without limitation legal, accounting or other professional
expenses of the Company or the Stockholders, shall be charged to or paid by the
Company or Buyer.
(b) The Stockholders will pay all costs incurred, whether at or subsequent
to the Closing, in connection with the transfer of the Company Shares to Buyer
as contemplated by this Agreement, including without limitation, all transfer
taxes and charges applicable to such transfer, and all costs of obtaining
permits, waivers, registrations or consents with respect to any assets, rights
or contracts of the Company.
10.2 Governing Law. This Agreement shall be construed under and governed by
the internal laws of the State of Iowa without regard to its conflict of laws
provisions. Each of the parties hereby irrevocably submits to the jurisdiction
of the federal District Court for the Southern District of Iowa with respect to
any action or proceeding arising out of or relating to this Agreement and each
thereby waives the defense of an inconvenient forum for the maintenance of such
an action.
10.3 Notices. Any notice, request, demand or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been
given if delivered or sent by facsimile transmission, upon receipt, or if sent
by registered or certified mail, upon the sooner of the date on which receipt is
acknowledged or the expiration of three days after deposit in United States post
office facilities properly addressed with postage prepaid. All notices to a
party will be sent to the addresses set forth below or to such other address or
person as such party may designate by notice to each other party hereunder:
TO BUYER: AirTouch Iowa, LLC
c/o AirTouch Communications, Inc.
One California Street
San Francisco, CA 94111
Attn: Legal Department
With copies to: Pillsbury Madison & Sutro LLP
375 Park Avenue, Suite 3108
New York, NY 10152-0111
Attn: James M. McLaughlin, Esq.
And Pillsbury Madison & Sutro LLP
50 Fremont Street
San Francisco, CA 94105
Attn: Nathaniel M. Cartmell, III, Esq.
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TO COMPANY: Central Iowa Cellular, Inc.
c/o Minburn Telephone Company
416 Chestnut
Box 206
Minburn, IA 50167
Attn: Ron Flam
Phone: (515) 677-2264
Facsimile: (515) 677-2007
And Central Iowa Cellular, Inc.
c/o Kiesling Associates LLP
7755 Office Plaza Drive, Suite 165
West Des Moines, IA 50266
Attention: Dennis Creveling, CPA
Phone: (515) 223-0159
Facsimile: (515) 223-5429
With a copy to: Michael G. Kulik, Esq.
Davis, Brown, Koehn, Shors & Roberts P.C.
2500 Financial Center
666 Walnut Street
Des Moines, IA 50309
Phone: (515) 288-2500
Facsimile: (515) 243-0654
TO STOCKHOLDERS: To the Addresses Set Forth on Exhibit A
Any notice given hereunder may be given on behalf of any party by his counsel or
other authorized representatives.
10.4 Entire Agreement. This Agreement and the other writings specifically
identified herein or contemplated hereby, is complete, reflects the entire
agreement of the parties with respect to its subject matter, and supersedes all
previous written or oral negotiations, commitments and writings. No promises,
representations, understandings, warranties and agreements have been made by any
of the parties hereto except as referred to herein or in such other writings;
and all inducements to the making of this Agreement relied upon by either party
hereto have been expressed herein or in such other writings.
10.5 Assignability; Binding Effect. This Agreement shall be assignable by
Buyer to a corporation, partnership or person controlling, controlled by or
under common control with Buyer upon Buyers' providing written notice of such
assignment to the Stockholders; provided, however that Buyer shall remain
obligated to perform the obligations hereunder in the event of such assignee's
failure to do so. This Agreement may not be assigned by any of the Stockholders
or the Company. This Agreement shall be binding upon and enforceable by, and
shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns. A change of control of Buyer shall not
constitute an assignment for purposes of this Agreement.
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<PAGE>
10.6 Captions and Gender. The captions in this Agreement are for
convenience only and shall not affect the construction or interpretation of any
term or provision hereof. The use in this Agreement of the masculine pronoun in
reference to a party hereto shall be deemed to include the feminine or neuter,
as the context may require.
10.7 Execution in Counterparts. For the convenience of the parties and to
facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
10.8 Amendments. This Agreement may not be amended or modified, nor may
compliance with any condition or covenant set forth herein be waived, except by
a writing duly and validly executed by each party hereto, or in the case of a
waiver, the party waiving compliance.
* * * * * *
-- Remainder of Page Intentionally Left Blank --
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed as of the date set forth above by their duly authorized
representatives.
AIRTOUCH IOWA, LLC,
a Delaware limited liability company
By JVP Partnerco, LLC,
a Delaware limited liability company
Its Sole member
By AirTouch Communications, Inc.,
a Delaware limited liability company
Its Sole member
By /s/ Arun Sarin
---------------------------------------
Name Arun Sarin
---------------------------------------
Title Chief Executive Officer
---------------------------------------
CENTRAL IOWA CELLULAR, INC.
By /s/ Ron Flam
---------------------------------------
Title President
---------------------------------------
PANORA TELECOMMUNICATIONS, INC.
By /s/ Andrew M. Randol
---------------------------------------
Title Manager
---------------------------------------
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WALNUT CREEK COMMUNICATIONS, INC.
By /s/ Bill L. Hotchkiss
---------------------------------------
Title Manager
---------------------------------------
MINBURN TELEPHONE COMPANY
By /s/ Ron Flam
---------------------------------------
Title Manager
---------------------------------------
INTERSTATE ENTERPRISES, LTD.
By /s/ Robert Mauer
---------------------------------------
Title Manager
---------------------------------------
PRAIRIE TELEPHONE COMPANY, INC.
By /s/ Robert Boeckman
---------------------------------------
Title Manager
---------------------------------------
S-2-
Execution Copy
DES MOINES TOWER PROCEEDS AGREEMENT
THIS DES MOINES TOWER PROCEEDS AGREEMENT, dated as of March 29, 2000, by
and among AIRTOUCH COMMUNICATIONS, INC. ("AirTouch Communications"), PANORA
TELECOMMUNICATIONS, INC. ("Panora"), WALNUT CREEK COMMUNICATIONS, INC. ("Walnut
Creek"), MINBURN TELEPHONE COMPANY ("Minburn"), INTERSTATE ENTERPRISES, LTD.
("Interstate") and PRAIRIE TELEPHONE COMPANY, INC. ("Prairie"). Panora, Walnut
Creek, Minburn, Interstate and Prairie are collectively referred to herein as
the "Stockholders."
W I T N E S S E T H:
WHEREAS, in accordance with the terms of the Purchase Agreement (as defined
below), AirTouch Iowa, LLC ("Buyer") intends to purchase all of the Company's
outstanding capital stock from the Stockholders; and
WHEREAS, AirTouch Communications, American Tower Corporation ("American"),
and American Tower L.P. ("American Tower") are parties to that certain Agreement
to Sublease dated as of August 6, 1999 (the "Sublease Agreement") pursuant to
which, among other things, American Tower is obligated, subject to the
satisfaction of certain conditions, to pay the Des Moines MSA General
Partnership (the "Partnership") for subleases on certain wireless communications
towers; and
WHEREAS, as additional consideration for the purchase by Buyer of the
Company Shares (as defined in the Purchase Agreement) as contemplated under the
Purchase Agreement, AirTouch Communications has agreed to pay each Stockholder a
portion of the consideration received from American Tower for the sublease of
the Des Moines Towers (as defined below):
NOW, THEREFORE, in order to effectuate the foregoing purposes and in
consideration of the mutual agreements set forth herein, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS
Reference is hereby made to that certain Stock Purchase Agreement (as
defined below) of even date herewith (the "Purchase Agreement") by and among
Buyer, Central Iowa Cellular, Inc., an Iowa corporation (the "Company"), and the
additional parties named therein (the "Stockholders"). Capitalized terms used
but not defined in this Agreement shall have the meanings ascribed to them in
the Purchase Agreement.
SECTION 2. DES MOINES TOWERS
2.1 Tower Net Proceeds. (a) AirTouch Communications hereby agrees to pay to
each Stockholder its proportionate share as specified in Exhibit A attached
hereto, of the Tower Net Proceeds (as hereinafter defined) received by AirTouch
Communications (or an Affiliate thereof) from American Tower (or an Affiliate
thereof) pursuant to the Sublease Agreement, for any or all of the twenty-four
(24) towers described on Exhibit B attached hereto (the "Des Moines Towers").
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(b) Payments of the Tower Net Proceeds shall be made by AirTouch
Communications within five (5) business days after AirTouch Communications'
receipt of such Tower Net Proceeds.
(c) For the purposes of this Agreement, "Tower Net Proceeds" shall mean
twenty-four percent (24%) of the gross cash proceeds received by AirTouch
Communications (or an Affiliate thereof) under the Sublease Agreement for any
(or all) of the Des Moines Towers, minus twenty-four percent (24%) of any fees
owed to Lehman Brothers, Inc. in connection with the sublease of those Des
Moines Towers; provided, however, that Tower Net Proceeds shall not include any
such proceeds previously distributed by the Partnership to the Company.
2.2 Warrant Payment. AirTouch Communications further agrees to pay, upon
Closing of the transactions contemplated by the Purchase Agreement, to each
Stockholder its proportionate share (i.e., twenty percent per stockholder) of
cash in the amount of the Monetization Value (as defined below) multiplied by
343 for each of the Des Moines Towers monetized prior to the Closing pursuant to
the Sublease Agreement. AirTouch Communications further agrees to pay, within
five (5) business days after the monetization of any Des Moines Tower(s) on or
after the Closing to each Stockholder its proportionate share (i.e., twenty
percent per stockholder) of cash in the amount of the Monetization Value (as
defined below) multiplied by 343. Monetization Value shall be equal to the
average closing price of American Tower stock, as quoted on the principal stock
exchange or National Market System upon which such stock is traded, for the five
(5) trading days immediately preceding the date of Closing, minus $22.00. The
payments provided for in this Section 2.2 shall be in lieu of any right or claim
that any Stockholder may have to a pro rata share of or any other interest in
the warrant for American Tower stock received from American Tower for the Des
Moines Towers under the Sublease Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
As a material inducement to AirTouch Communications to enter into this
Agreement and consummate the transactions contemplated hereby, the Stockholders
hereby make to AirTouch Communications all of the representations and warranties
contained in Section 2 of the Purchase Agreement, mutatis mutandis, as though
such representations and warranties were set forth herein.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF AIRTOUCH COMMUNICATIONS
As a material inducement to the Stockholders to enter into this Agreement
and consummate the transactions contemplated hereby, AirTouch Communications
hereby makes the representations and warranties to the Stockholders contained in
this Section 4.
4.1 Organization of AirTouch Communications. AirTouch Communications is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware with full corporate power to conduct its business in the manner and
in the places where such business is conducted by it.
4.2 Authority of AirTouch Communications. AirTouch Communications has full
right, authority and power to enter into this Agreement and to carry out the
transactions contemplated hereby. The execution, delivery and performance by
AirTouch Communications
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<PAGE>
of this Agreement have been duly authorized by all necessary corporate action of
AirTouch Communications and no other action on the part of AirTouch
Communications is required in connection therewith.
This Agreement constitutes a valid and binding obligation of AirTouch
Communications enforceable in accordance with its terms. The execution, delivery
and performance by AirTouch Communications of this Agreement and each such
agreement, document and instrument:
(a) does not and will not violate any laws of the United States, or any
state or other jurisdiction applicable to AirTouch Communications or require
AirTouch Communications to obtain any approval, consent or waiver of, or make
any filing with, any person or entity (governmental or otherwise) that has not
been obtained or made; and
(b) does not and will not result in a breach of, constitute a default
under, accelerate any obligation under, or give rise to a right of termination
of any indenture or loan or credit agreement or any other agreement, contract,
instrument, mortgage, lien, lease, permit, authorization, order, writ, judgment,
injunction, decree, determination or arbitration award to which AirTouch
Communications is a party or by which the property of AirTouch Communications is
bound or affected, or result in the creation or imposition of any liens,
security interests, restrictions, pledges, encumbrances, charges or claims of
any kind on any of AirTouch Communications' assets.
4.3 Disclosure. The representations, warranties and statements of AirTouch
Communications contained in this Agreement do not contain any untrue statement
of a material fact, and, when taken together, do not omit to state a material
fact required to be stated therein or necessary in order to make such
representations, warranties or statements not misleading in light of the
circumstances under which they were made.
SECTION 5. COVENANTS OF THE STOCKHOLDERS
5.1 Making of Covenants and Agreements. Each of the Stockholders hereby
makes the covenants and agreements set forth in this Section 5 and the
Stockholders agree to cause the Company to comply with such agreements and
covenants. No Stockholder shall have any right of indemnity or contribution from
the Company with respect to the breach of any covenant or agreement hereunder.
5.2 Notice of Default. Promptly upon the occurrence of, or promptly upon a
Stockholder becoming aware of the impending or threatened occurrence of, any
event which would cause or constitute a breach or default, or would have caused
or constituted a breach or default had such event occurred or been known to such
Stockholder prior to the date hereof, of any of the representations, warranties
or covenants of the Stockholders contained in or referred to in this Agreement
the Stockholders shall give detailed written notice thereof to AirTouch
Communications and the Stockholders shall use their best efforts to prevent or
promptly remedy the same.
5.3 Confidentiality. Each Stockholder agrees that, unless and until the
Closing has been consummated, the Stockholders and their officers, directors,
agents and representatives will not disclose the existence of this Agreement or
its terms without the prior written consent of the other parties, other than any
disclosure required by law, including without limitation, disclosures required
to be made in: (a) any filing required by any governmental authority, including,
without
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<PAGE>
limitation, any filing required to be made with the Federal Communications
Commission or the Securities and Exchange Commission, (b) at any annual meeting
of stockholders, or in any communication to stockholders, held by any of the
Stockholders or member or at any annual meeting of Stockholders or members of a
parent Company, (c) as required by court order or law or (d) in connection with
an action to enforce this Agreement.
SECTION 6. COVENANTS OF AIRTOUCH COMMUNICATIONS
6.1 Making of Covenants and Agreement. AirTouch Communications hereby makes
the covenants and agreements set forth in this Section 6.
6.2 Cooperation. AirTouch Communications shall cooperate with all
reasonable requests of the Stockholders and the Stockholders' counsel in
connection with the consummation of the transactions contemplated hereby.
6.3 Confidentiality. AirTouch Communications agrees that, unless and until
the Closing has been consummated, AirTouch Communications and its officers,
directors, agents and representatives will not disclose the existence of this
Agreement or its terms without the prior written consent of the other parties,
other than any disclosure required by law, including without limitation,
disclosures required to be made in: (a) any filing required by any governmental
authority, including, without limitation, any filing required to be made with
the Federal Communications Commission or the Securities and Exchange Commission,
(b) at any annual meeting of stockholders, or in any communication to
stockholders, held by any of the Stockholders, (c) as required by court order or
law or (d) in connection with an action to enforce this Agreement.
SECTION 7. CONDITIONS
7.1 Conditions to the Obligations of AirTouch Communications. The
obligation of AirTouch Communications to consummate this Agreement and the
transactions contemplated hereby are subject to the fulfillment, prior to or at
the Closing, of the following conditions precedent:
(a) Representations; Warranties; Covenants. Each of the representations and
warranties of the Stockholders as referred to in Section 3 shall be true and
correct as of the Closing Date as though made on and as of the Closing; and each
of the Stockholders shall, on or before the Closing, have performed all of their
obligations hereunder, which by the terms hereof are to be performed on or
before the Closing.
(b) The Closing of the transactions contemplated by the Purchase Agreement
shall have occurred.
7.2 Conditions to Obligations of the Stockholders. The obligations of the
Stockholders to consummate this Agreement and the transactions contemplated
hereby is subject to the fulfillment, prior to or at the Closing, of the
following conditions precedent:
7.3 Representations; Warranties; Covenants. Each of the representations and
warranties of AirTouch Communications contained in Section 4 shall be true and
correct as though made on and as of the Closing; AirTouch Communications shall,
on or before the Closing, have
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<PAGE>
performed all of its obligations hereunder which by the terms hereof are to be
performed on or before the Closing.
SECTION 8. TERMINATION OF AGREEMENT; RIGHTS TO PROCEED
8.1 Termination. At any time prior to the Closing, this Agreement may be
terminated as follows:
(a) by mutual written consent of all of the parties to this Agreement;
(b) by AirTouch Communications, pursuant to written notice by AirTouch
Communications to the Stockholders, if any of the conditions set forth in
Section 7.1 of this Agreement have not been satisfied at or prior to the
Closing, or if it has become reasonably and objectively certain that any of such
conditions, other than a condition within the control of any Stockholder, will
not be materially satisfied at or prior to the Closing, such written notice to
set forth such conditions which have not been or will not be so satisfied; and
(c) by the Stockholders, pursuant to written notice by the Stockholders to
AirTouch Communications, if any of the conditions set forth in Section 7.2 of
this Agreement have not been satisfied at or prior to the Closing, or if it has
become reasonably and objectively certain that any of such conditions, other
than a condition within the control of AirTouch Communications, will not be
satisfied at or prior to the Closing, such written notice to set forth such
conditions which have not been or will not be so satisfied.
8.2 Effect of Termination. All obligations of the parties hereunder shall
cease upon any termination pursuant to Section 8.1, provided, however, that the
provisions of Section 8 and Section 10.1 hereof shall survive any termination of
this Agreement.
8.3 Right to Proceed. Anything in this Agreement to the contrary
notwithstanding, if any of the conditions specified in Section 7.1 hereof have
not been satisfied, AirTouch Communications shall have the right to proceed with
the transactions contemplated hereby without waiving any of its rights
hereunder, and if any of the conditions specified in Section 7.2 hereof have not
been satisfied, the Stockholders shall have the right to proceed with the
transactions contemplated hereby without waiving any of their rights hereunder.
SECTION 9. RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING
9.1 Survival of Warranties. Each of the representations, warranties,
agreements, covenants and obligations herein or in any schedule, exhibit,
certificate or financial statement delivered by any party to the other party
incident to the transactions contemplated hereby are material, shall be deemed
to have been relied upon by the other party and shall survive the Closing
regardless of any investigation and shall not merge in the performance of any
obligation by either party hereto; provided, however, that such representations
and warranties shall expire [three (3)] years from the date of Closing.
SECTION 10. MISCELLANEOUS
10.1 Expenses. Each of the parties will bear its own expenses in connection
with the negotiation and the consummation of the transactions contemplated by
this Agreement, and no expenses of the Company or the Stockholders relating in
any way thereto or the transactions
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<PAGE>
contemplated hereby, including without limitation legal, accounting or other
professional expenses of the Company or the Stockholders, shall be charged to or
paid by the Company or AirTouch Communications.
10.2 Governing Law. This Agreement shall be construed under and governed by
the internal laws of the State of Iowa without regard to its conflict of laws
provisions. Each of the parties hereby irrevocably submits to the jurisdiction
of the federal District Court for the Southern District of Iowa with respect to
any action or proceeding arising out of or relating to this Agreement and each
thereby waives the defense of an inconvenient forum for the maintenance of such
an action.
10.3 Notices. Any notice, request, demand or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been
given if delivered or sent by facsimile transmission, upon receipt, or if sent
by registered or certified mail, upon the sooner of the date on which receipt is
acknowledged or the expiration of three days after deposit in United States post
office facilities properly addressed with postage prepaid. All notices to a
party will be sent to the addresses set forth below or to such other address or
person as such party may designate by notice to each other party hereunder:
TO AIRTOUCH COMMUNICATIONS: AirTouch Communications, Inc.
One California Street
San Francisco, CA 94111
Attn: Legal Department
With copies to: Pillsbury Madison & Sutro LLP
375 Park Avenue, Suite 3108
New York, NY 10152-0111
Attn: James M. McLaughlin, Esq.
And Pillsbury Madison & Sutro LLP
50 Fremont Street
San Francisco, CA 94105
Attn: Nathaniel M. Cartmell, III, Esq.
TO COMPANY: Central Iowa Cellular, Inc.
c/o Minburn Telephone Company
416 Chestnut
Box 206
Minburn, IA 50167
Attn: Ron Flam
Phone: (515) 677-2264
Facsimile: (515) 677-2007
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<PAGE>
And Central Iowa Cellular, Inc.
c/o Kiesling Associates LLP
7755 Office Plaza Drive, Suite 165
West Des Moines, IA 50266
Attention: Dennis Creveling, CPA
Phone: (515) 223-0159
Facsimile: (515) 223-5429
With a copy to: Michael G. Kulik, Esq.
Davis, Brown, Koehn, Shors & Roberts P.C.
2500 Financial Center
666 Walnut Street
Des Moines, IA 50309
Phone: (515) 288-2500
Facsimile: (515) 243-0654
TO STOCKHOLDERS: To the Addresses Set Forth on Exhibit A
Any notice given hereunder may be given on behalf of any party by his counsel or
other authorized representatives.
10.4 Entire Agreement. This Agreement and the other writings specifically
identified herein or contemplated hereby, is complete, reflects the entire
agreement of the parties with respect to its subject matter, and supersedes all
previous written or oral negotiations, commitments and writings. No promises,
representations, understandings, warranties and agreements have been made by any
of the parties hereto except as referred to herein or in such other writings;
and all inducements to the making of this Agreement relied upon by either party
hereto have been expressed herein or in such other writings.
10.5 Assignability; Binding Effect. This Agreement shall only be assignable
by AirTouch Communications to a corporation, partnership or person, controlling,
controlled by or under common control with AirTouch Communications upon
providing written notice of such assignment to the other parties hereto;
provided, however that Buyer shall remain obligated to perform the obligations
hereunder in the event of such assignee's failure to do so. This Agreement may
not be assigned by any of the Stockholders. This Agreement shall be binding upon
and enforceable by, and shall inure to the benefit of, the parties hereto and
their respective successors and permitted assigns.
10.6 Captions and Gender. The captions in this Agreement are for
convenience only and shall not affect the construction or interpretation of any
term or provision hereof. The use in this Agreement of the masculine pronoun in
reference to a party hereto shall be deemed to include the feminine or neuter,
as the context may require.
10.7 Execution in Counterparts. For the convenience of the parties and to
facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
10.8 Amendments. This Agreement may not be amended or modified, nor may
compliance with any condition or covenant set forth herein be waived, except by
a writing duly
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and validly executed by each party hereto, or in the case of a waiver, the party
waiving compliance.
* * * * *
[Remainder of Page Intentionally Left Blank]
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Execution Copy
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed as of the date set forth above by their duly authorized
representatives.
AIRTOUCH COMMUNICATIONS, INC.
By /s/ Arun Sarin
---------------------------------------
Title Chief Executive Officer
---------------------------------------
PANORA TELECOMMUNICATIONS, INC.
By /s/ Andrew M. Randol
---------------------------------------
Title Manager
---------------------------------------
WALNUT CREEK COMMUNICATIONS, INC.
By /s/ Bill L. Hotchkiss
---------------------------------------
Title Manager
---------------------------------------
MINBURN TELEPHONE COMPANY
By /s/ Ron Flam
---------------------------------------
Title Manager
---------------------------------------
INTERSTATE ENTERPRISES, LTD.
By /s/ Robert Mauer
---------------------------------------
Title Manager
---------------------------------------
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PRAIRIE TELEPHONE COMPANY, INC.
By /s/ Robert Boeckman
---------------------------------------
Title Manager
---------------------------------------
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<PAGE>
EXHIBIT A
LIST OF STOCKHOLDERS, STOCKHOLDINGS
AND PROPORTIONATE SHARE OF TOWER NET PROCEEDS
Name and Address of Stockholder Proportionate Share
------------------------------- -------------------
PANORA TELECOMMUNICATIONS, INC 20%
P.O. Box 189
114 East Main
Panora, IA 50216
WALNUT CREEK COMMUNICATIONS, INC. 20%
P.O. Box 36
102 North Main Avenue
Huxley, IA 50124-0036
MINBURN TELEPHONE COMPANY 20%
P.O. Box 206
416 Chestnut Street
Minburn, IA 50167-0206
INTERSTATE ENTERPRISES, LTD. 20%
P.O. Box 229
105 West Street
Truro, IA 50257
PRAIRIE TELEPHONE COMPANY, INC. 20%
P.O. Box 190
Highway 217 East
Breda, IA 51436
A-1
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EXHIBIT B
DES MOINES MSA GENERAL PARTNERSHIP
LIST OF PROJECT VERTICAL TOWERS(1)
Project
Vertical Number Site Name
--------------- ---------
1. 563 DESARMYPOST
2. 564 DESCHIEF
3. 565 DESCUTTY
4. 566 DESEXPRESSO
5. 567 DESFRANKLIN
6. 568 DESGOB
7. 569 DESGRANDVIE
8. 570 DESGRIMES
9. 571 DESHOLIDAY
10. 572 DESINDIANOL
11. 573 DESJOHNSTON
12. 574 DESLEGACY
13. 575 DESLOVING
14. 576 DESMARQUIS
15. 577 DESMILO
16. 578 DESMINBURNS
17. 579 DESOUTREACH
18. 580 DESPRIMADON
19. 581 DESWADEL
20. 582 DESSWANWOOD
21. 583 DESURBANDAL
22. 584 DESVANMETER
23. 585 DESWAVELAND
24. 586 DESWILBURR
- ----------
(1) Some or all of the Project Vertical towers on this list may not be
subleased to American Tower Corporation or its Affiliates under the
Agreement to Sublease, depending upon a number of factors including,
without limitation, whether consent of the underlying landlord for a tower
site can be obtained where necessary.
B-1
