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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO
FILED PURSUANT TO RULE 13d-2(a)
(Amendment No. 1)/1/
Audio Communications Network, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.25 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
0506E 10 6
- --------------------------------------------------------------------------------
(CUSIP Number)
Mitchell Kleinhandler Stanley E. Bloch, Esq.
Suncom Communications L.L.C. Baer Marks & Upham LLP
4059 Yancey Road 805 Third Avenue
Charlotte, North Carolina 28217 New York, New York 10022
(704) 523-4893 (212) 702-5700
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person(s) Authorized to Receive Notices
and Communications)
June 5, 1998
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(f) or 13d-1(g), check the following box [_].
Note: Schedules filed in paper format shall include a signed original and
five copies of the Schedule, including all exhibits. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 6 pages)
- --------------
/1/ The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE>
SCHEDULE 13D
- ----------------------- ---------------------
CUSIP NO. 0506E 10 6 PAGE 2 OF 6 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Suncom Communications L.L.C.
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7 0
NUMBER OF
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8 2,697,986
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9 0
REPORTING
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10 2,697,986
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 2,697,986
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12
[_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 59.9%
13
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON* OO
14
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
- ---------------------- --------------------
CUSIP No. 0506E 10 6 Page 3 of 6 Pages
- ---------------------- --------------------
Pursuant to Rule 13d-2(a) of Regulation 13D-G of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended, this
Amendment No. 1 (the "Amendment") to the Schedule 13D originally filed (the
---------
"Original Schedule 13D") by Suncom Communications L.L.C. (the "Reporting
- ---------------------- ---------
Person") with the Securities and Exchange Commission (the "SEC") on January 15,
---
1998, relates to the common stock, par value $0.25 per share (the "Common
------
Stock"), of Audio Communications Network, Inc. (the "Issuer").
------
Terms used in the Amendment, unless otherwise defined, shall have the
meanings set forth in the Original Schedule 13D.
ITEM 4. PURPOSE OF TRANSACTION
The following paragraphs shall be added prior to the final paragraph of
Item 4 of the report:
"On June 5, 1998, the Issuer entered into an Agreement and Plan of Merger
("Merger Agreement") with DMA Holdings, Inc. ("DMA"), a Delaware corporation,
and Diverse Media Acquisitions, Inc., a Florida corporation ("Diverse Media")
and wholly owned subsidiary of DMA. Pursuant to the Merger Agreement, a copy of
which is attached hereto as Exhibit E, and subject to the conditions set forth
therein, Diverse Media will be merged with and into the Issuer, with the Issuer
continuing as the surviving corporation (the "Merger"). At the time the Merger
becomes effective, each issued and outstanding share of Common Stock will be
converted into the right to receive $6.40 per share, net, in cash.
In connection with the Merger Agreement, the Reporting Person and DMA
entered into a Stock Option Agreement, dated as of June 5, 1998 (the "Stock
Option Agreement"), a copy of which is attached hereto as Exhibit F, pursuant to
which the Reporting Person granted DMA an option to purchase from the Reporting
Person up to 2,697,986 shares of Common Stock (the "DMA Option Shares") of
Issuer at $6.40 per share (the "DMA Option")."
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Paragraph (a) of Item 5 shall be deleted in its entirety and replaced with
the following: "The Reporting Person is the record owner of 2,697,986 shares of
Common Stock, representing approximately 59.9% of the total number of shares of
Common Stock outstanding (based upon the Issuer's Quarterly Report on Form 10-
QSB for the period ended March 31, 1998). This number excludes 1,000,000 shares
of Common Stock issuable upon exercise of the Option held by the Reporting
Person (referred to in the Original Schedule 13D), which is not currently
exercisable. See Item 4.
Because the DMA Option is exercisable within 60 days hereof, DMA is deemed
to be the beneficial owner of 2,697,986 shares of Common Stock, representing
approximately 59.9% of the total number of shares of the Common Stock
outstanding."
<PAGE>
- ---------------------- --------------------
CUSIP No. 0506E 10 6 Page 4 of 6 Pages
- ---------------------- --------------------
The following paragraph shall be added following paragraph (b) of Item 5 of
the report: "DMA currently holds a proxy with regard to the DMA Option Shares to
vote on certain issues, and the Reporting Person has agreed to limitations on
its power to dispose of the DMA Option Shares (See Item 6); however DMA does not
otherwise have or share voting or dispositive power with respect to the DMA
Option Shares."
ITEM 6. CONTRACT, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
The following paragraphs shall be added prior to the final paragraph of
Item 6:
"Pursuant to the Stock Option Agreement the Reporting Person has agreed not
to (a) sell, pledge or otherwise dispose of any of its shares of Common Stock,
(b) deposit its shares of Common Stock into a voting trust or enter into a
voting agreement or arrangement with respect to such shares or grant any proxy
with respect thereto or (c) enter into any contract, option or other arrangement
or undertaking with respect to the direct or indirect acquisition or sale,
assignment, transfer or other disposition of any Common Stock.
Pursuant to the Stock Option Agreement, the Reporting Person granted to DMA
a proxy (the "Proxy") which grants DMA the power to vote the DMA Option Shares
(a) in favor of the adoption of the Merger Agreement and the approval of the
Merger and other transactions contemplated by the Merger Agreement, (b) against
any proposal for any recapitalization, merger, sale of assets or other business
combination between the Issuer and any person or entity (other than the Merger)
or any action or agreement which would result, or could result, in a breach of
any covenant, representation, warranty or any other obligation of the Issuer
under the Merger Agreement and (c) in favor of any other matter relating to the
consummation of the transactions contemplated by the Merger Agreement, all as
more fully described in, and under the circumstances set forth in, the Stock
Option Agreement.
The Proxy is exercisable during and for the term of the DMA Option or,
following termination of the Merger Agreement, during such periods as the DMA
Option is exercisable.
Pursuant to the Merger Agreement the Reporting Person has agreed to use its
reasonable best efforts to cause the Option held by the Reporting Person to be
cancelled.
Approximately 400,000 shares of the Company's Common Stock owned by the
Reporting Person are currently pledged to A.J. Schell (the "Pledge") in
connection with obligations of Issuer to Mr. Schell in connection with the
transactions
<PAGE>
- -------------------------- -------------------
CUSIP No. 0506E 10 6 Page 5 of 6 Pages
- -------------------------- -------------------
consummated pursuant to the Asset Purchase Agreement. Pursuant to the Merger
Agreement, the Issuer has agreed to use its reasonable best efforts to secure
the release of the aforementioned shares from the Pledge."
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
*Exhibit E - Agreement and Plan of Merger, dated as of June 5, 1998, among
DMA Holdings, Inc., Diverse Media Acquisitions, Inc. and Audio Communications
Network, Inc.
Exhibit F - Stockholders Stock Option Agreement, dated as of June 5, 1998,
between DMA Holdings, Inc. and Suncom Communications L.L.C.
- --------------------------
* Incorporated by reference to the Issuer's Current Report on Form 8-K dated
June 23, 1998.
<PAGE>
- -------------------------- -------------------
CUSIP No. 0506E 10 6 Page 6 of 6 Pages
- -------------------------- -------------------
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify the information set forth in this Statement is true, complete and
correct.
Dated: June 23, 1998
SUNCOM COMMUNICATIONS L.L.C.
By: Suncom Management L.L.C.
By: Global Communications, L.L.C.
By: /s/ Mitchell Kleinhandler
------------------------------------
Mitchell Kleinhandler,
President and Managing Member
Dated: June 23, 1998
By: Creative Media Music Enterprises, L.L.C.
By: /s/ David Unger
------------------------------------
David Unger, Managing Member
<PAGE>
EXHIBIT F
STOCKHOLDER'S STOCK OPTION AGREEMENT
Stockholder's Stock Option Agreement (this "Agreement"), dated as of June 5,
1998, between DMA Holdings, Inc., a Delaware corporation ("DMA"), and Suncom
Communications, L.L.C., a Delaware limited liability company ("Suncom").
Whereas, as of the date hereof Suncom owns (either beneficially or of
record) 2,697,986 shares of common stock, par value $0.25 per share ("Company
Common Stock" or the "Shares"), of Audio Communication Network, Inc., a
Florida corporation;
Whereas, the Company, DMA and Diverse Media Acquisitions, Inc., a Florida
corporation ("DMA Sub"), propose to enter into an Agreement and Plan of
Merger, dated as of the date hereof (as the same may be amended from time to
time, the "Merger Agreement"), which provides, upon the terms and subject to
the conditions thereof, for the merger of DMA Sub with and into the Company
(the "Merger"); and
Whereas, as a condition to the willingness of DMA to enter into the Merger
Agreement, DMA has requested that Suncom agree, and, in order to induce DMA to
enter into the Merger Agreement, Suncom has agreed, to grant DMA options to
purchase the Shares;
Now, Therefore, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
ARTICLE I
The Options
Section 1.01. Grant of Options. Suncom hereby grants to DMA an irrevocable
option (the "Option") to purchase the entire amount of Suncom's Shares at a
price per Share equal to $6.40 (the "Purchase Price"). The Option shall expire
if not exercised prior to the close of business on the 60th day following
termination of the Merger Agreement. The Option shall also expire if the
Merger Agreement is terminated pursuant to Section 7.01(c) thereof.
Section 1.02. Exercise of Options. Provided that (a) to the extent
necessary, any applicable waiting periods (and any extension thereof) under
the Hart-Scott-Rodino Antitrust Improvement Act of 1976 and the rules and
regulations promulgated thereunder (the "HSR Act") with respect to the
exercise of the Option shall have expired or been terminated and (b) no
preliminary or permanent injunction or other order, decree or ruling issued by
any court or governmental or regulatory authority, domestic or foreign, of
competent jurisdiction prohibiting the exercise of the Option or the delivery
of Shares shall be in effect, DMA may exercise the Option at any time and from
time to time following termination of the Merger Agreement (other than a
termination pursuant to Section 7.01(c) thereof) until the expiration of such
Option. In the event that DMA wishes to exercise the Option, DMA shall give
written notice (the date of such notice being herein called the "Notice Date")
to Suncom specifying a place and date (not later than ten Business Days (as
defined below) and not earlier than three Business Days following the Notice
Date) for closing such purchase (the "Closing"). For the purposes of this
Agreement, the term "Business Day" shall mean a Saturday, a Sunday or a day on
which banks are not required or authorized by law or executive order to be
closed in the City of New York.
Section 1.03. Payment for and Delivery of Certificates. At the Closing, (a)
DMA shall pay the aggregate Purchase Price for the Shares being purchased from
Suncom by wire transfer in immediately available funds of the total amount of
the Purchase Price for such Shares to an account designated by Suncom by
written notice to DMA, and (b) Suncom shall deliver to DMA a certificate or
certificates evidencing Suncom's Shares, and Suncom agrees that such Shares
shall be transferred free and clear of all liens. All such certificates shall
be
1
<PAGE>
duly endorsed in blank, or with appropriate stock powers, duly executed in
blank, attached thereto, in proper form for transfer, with the signature of
Suncom's duly authorized representative thereon guaranteed, and with all
applicable taxes paid or provided for.
ARTICLE II
Representations and Warranties of Suncom
Suncom hereby represents and warrants to DMA as follows:
Section 2.01. Due Organization, etc. Suncom is duly organized and validly
existing under the laws of the jurisdiction of its incorporation or
organization. Suncom has full power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of Suncom. This Agreement has been duly executed and
delivered by or on behalf of Suncom and, assuming its due authorization,
execution and delivery by DMA, constitutes a legal, valid and binding
obligation of Suncom, enforceable against Suncom in accordance with its terms,
subject to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights generally
and subject, as to enforceability, to the effect of general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
Section 2.02. No Conflicts; Required Filings and Consents. (a) The execution
and delivery of this Agreement by Suncom do not, and the performance of this
Agreement by Suncom will not, (i) conflict with or violate the operating
agreement or similar organizational document of Suncom, (ii) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to
Suncom or by which it or any of its properties is bound or affected or (iii)
result in any breach of or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of the property or assets of
Suncom or any of its subsidiaries pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Suncom is a party or by which Suncom or any
of its properties is bound or affected, except for any such breaches, defaults
or other occurrences that would not cause or create a material risk of non-
performance or delayed performance by Suncom of its obligations under this
Agreement.
(b) The execution and delivery of this Agreement by Suncom do not, and the
performance of this Agreement by Suncom will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign, except (i) for
applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (the "Exchange Act"), and
the HSR Act and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
prevent or delay the performance by Suncom of its obligations under this
Agreement.
Section 2.03. Title to Shares. At the Closing, Suncom will deliver good and
valid title to its Shares free and clear of any pledge, lien, security
interest, charge, claim, equity, option, proxy, voting restriction, right of
first refusal or other limitation on disposition or encumbrance of any kind,
other than pursuant to this Agreement, which will be eliminated prior to or at
the Closing, Suncom has full right, power and authority to sell, transfer and
deliver its Shares pursuant to this Agreement. Upon delivery of such Shares
and payment of the Purchase Price therefor as contemplated herein, DMA will
receive good and valid title to such Shares, free and clear of any pledge,
lien, security interest, charge, claim, equity, option, proxy, voting
restriction or encumbrance of any kind.
2
<PAGE>
ARTICLE III
Representations and Warranties of DMA
DMA hereby represents and warrants to Suncom as follows:
Section 3.01. Due Organization, etc. DMA is a corporation duly organized and
validly existing under the laws of the State of Delaware. DMA has all
necessary corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby by DMA have been duly authorized by all necessary
corporate action on the part of DMA. This Agreement has been duly executed and
delivered by DMA and, assuming its due authorization, execution and delivery
by Suncom, constitutes a legal, valid and binding obligation of DMA,
enforceable against DMA in accordance with its terms.
Section 3.02. No Conflict; Required Filings and Consents. (a) The execution
and delivery of this Agreement by DMA do not, and the performance of this
Agreement by DMA will not, (i) conflict with or violate the Certificate of
Incorporation or By-laws of DMA, (ii) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to DMA or by which DMA or any
of its properties is bound or affected or (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a
lien or encumbrance on any of the property or assets of DMA pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which DMA is a party or by
which it or any of its properties is bound or affected, except for any such
breaches, defaults or other occurrences that would not cause or create a
material risk of non-performance or delayed performance by DMA of its
obligations under this Agreement.
(b) The execution and delivery of this Agreement by DMA do not, and the
performance of this Agreement by DMA will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign, except (i) for
applicable requirements, if any, of the Exchange Act and the HSR Act and (ii)
where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
the performance by DMA of its obligations under this Agreement.
Section 3.03. Investment Intent. The purchase of Shares from Suncom pursuant
to this Agreement is for the account of DMA for the purpose of investment and
not with a view to or for sale in connection with any distribution thereof
within the meaning of the Securities Act, and the rules and regulations
promulgated thereunder.
ARTICLE IV
Transfer and Voting of Shares
Section 4.01. Transfer of Shares. During the term of the Option, and except
as otherwise provided herein, Suncom shall not (a) sell, pledge or otherwise
dispose of any of its Shares, (b) deposit its Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such Shares or
grant any proxy with respect thereto or (c) enter into any contract, option or
other arrangement or undertaking with respect to the direct or indirect
acquisition or sale, assignment, transfer or other disposition of any Company
Common Stock.
Section 4.02. Voting of Shares; Further Assurances. (a) Suncom, by this
Agreement, with respect to those Shares that it owns of record, does hereby
constitute and appoint DMA, or any nominee of DMA, with full power of
substitution, during and for the term of the Option granted by Suncom
hereunder (or, following termination of the Merger Agreement, during such
periods as the Option is exercisable), as its true and lawful attorney and
proxy, for and in its name, place and stead, to vote each of such Shares as
its proxy at every annual,
3
<PAGE>
special or adjourned meeting of the stockholders of the Company (including the
right to sign its name (as stockholder) to any consent, certificate or other
document relating to the Company that the law of the State of Florida may
permit or require) (i) in favor of the adoption of the Merger Agreement and
approval of the Merger and the other transactions contemplated by the Merger
Agreement, (ii) against any proposal for any recapitalization, merger, sale of
assets or other business combination between the Company and any person or
entity (other than the Merger) or any other action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or which
could result in any of the conditions to the Company's obligations under the
Merger Agreement not being fulfilled and (iii) in favor of any other matter
relating to consummation of the transactions contemplated by the Merger
Agreement. Suncom further agrees to cause the Shares owned by it beneficially
to be voted in accordance with the foregoing. Suncom acknowledges receipt and
review of a copy of the Merger Agreement.
(b) If DMA shall exercise the Option in accordance with the terms of this
Agreement, and without additional consideration, Suncom shall execute and
deliver further transfers, assignments, endorsements, consents and other
instruments as DMA may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement and the Merger
Agreement, including the transfer of any and all of Suncom's Shares to DMA and
the release of any and all liens, claims and encumbrances covering such
Shares.
(c) Suncom shall perform such further acts and execute such further
documents and instruments as may reasonably be required to vest in DMA the
power to carry out the provisions of this Agreement.
ARTICLE V
General Provisions
Section 5.01. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered, mailed or transmitted, and shall be
effective upon receipt, if delivered personally, mailed by registered or
certified mail (postage prepaid, return receipt requested) to the parties at
the following addresses (or at such other address for a party as shall be
specified by like changes of address) or sent by electronic transmission to
the telecopier number specified below:
(a) If to DMA:
DMA Holdings, Inc.
c/o Integrated Capital Associates
220 Jackson Street, Suite 2000
San Francisco, CA 94111
Facsimile No.: (415) 986-5511
with a copy to:
Shearman & Sterling
555 California Street
San Francisco, CA 94104
Attention: Christopher D. Dillon, Esq.
Facsimile No.: (415) 616-1199
(b) If to SUNCOM:
Suncom Communications, L.L.C.
4059 Yancey Road
Charlotte, NC 28217
Attention: Doug Handy
Facsimile No.: (704) 525-1300
4
<PAGE>
Section 5.02. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 5.03. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent
possible.
Section 5.04. Entire Agreement. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to
the subject matter hereof.
Section 5.05. Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any person
any right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
Section 5.06. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or in equity.
Section 5.07. Governing Law. Except to the extent that Florida Law is
mandatorily applicable to the rights of the stockholders of the Company, this
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York applicable to contracts executed and to be performed
entirely within that state. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined in any federal
district court sitting in the City of New York.
Section 5.08. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
In Witness Whereof, the parties have executed this Agreement as of the date
first written above.
DMA Holdings, Inc.
By
Name: _______________________________
Title: ______________________________
Suncom Communications, L.L.C.
By
Name: _______________________________
Title: ______________________________
5
