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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
InterCel, Inc.
(Name of Issuer)
Common Stock, par value $.01 per share
(Title of Class of Securities)
458 44L 108
(CUSIP Number)
H. T. Arthur, II, Vice President and General Counsel
SCANA Corporation
1426 Main Street
Columbia, SC 29218
(803) 376-8547
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
February 7, 1996
(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(b)(3) or
(4), check the following box [ ].
Check the following box if a fee is being paid with this statement
[X] . (A fee is not required only if the reporting person: (1) has
a previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in Item 1;
and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of less than five percent of such class. See
Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties
to whom copies are to be sent.
* 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).
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CUSIP No 458 44L 108
1) Names of Reporting Persons
This Schedule 13D is being filed by a group deemed to have
acquired common stock of the Issuer. The names and I.R.S.
identification numbers of the reporting persons can be
found on pages 3 and 4 of this Schedule.
S.S. or I.R.S. Identification Nos. of Above Persons
2) Check the Appropriate Box if a Member of a Group (See
Instructions) (a) /X/
(b) / /
3) SEC Use Only
4) Source of Funds (See Instructions) 00
5) Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) / /
6) Citizenship or Place of Organization Both members of the
group are South Carolina corporations
Number of (7) Sole Voting Power 4,494,892 - See
Shares Bene- response to Item 5
ficially
Owned by (8) Shared Voting Power 0 - See response
to Item 5
Each Report-
ing Person (9) Sole Dispositive Power 4,494,892 -
See response to Item 5
With
(10) Shared Dispositive Power 0 - See
response to Item 5
11) Aggregate Amount Beneficially Owned by Each Reporting
Person 4,494,892 - See response to Item 5
12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions) X
13) Percent of Class Represented by Amount in Row (11) 16.8%
14) Type of Reporting Person (See Instructions) 00
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CUSIP No 458 44L 108
1) Names of Reporting Persons: SCANA Corporation
S.S. or I.R.S. Identification Nos. of Above Persons
57-0784499
2) Check the Appropriate Box if a Member of a Group (See
Instructions) (a) / /
(b) / /
3) SEC Use Only
4) Source of Funds (See Instructions) 00
5) Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) / /
6) Citizenship or Place of Organization South Carolina
Number of (7) Sole Voting Power 0 - See response
Shares Bene- to Item 5
ficially
Owned by (8) Shared Voting Power 4,494,892 - See
response to Item 5
Each Report-
ing Person (9) Sole Dispositive Power 0 - See
response to Item 5
With (10) Shared Dispositive Power 4,494,892-
See response to Item 5
11) Aggregate Amount Beneficially Owned by Each Reporting
Person 4,494,892 - See response to Item 5
12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions) X
13) Percent of Class Represented by Amount in Row (11) 16.8%
14) Type of Reporting Person (See Instructions) HC; CO
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CUSIP No 458 44L 108
1) Names of Reporting Persons: MPX Systems, Inc.
S.S. or I.R.S. Identification Nos. of Above Persons
57-0784501
2) Check the Appropriate Box if a Member of a Group (See
Instructions) (a) /X/
(b)
3) SEC Use Only
4) Source of Funds (See Instructions) 00
5) Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) / /
6) Citizenship or Place of Organization South Carolina
Number of (7) Sole Voting Power 0 - See response
to Item 5
Shares Bene-
ficially
Owned by (8) Shared Voting Power 4,494,892 - See
response to Item 5
Each Report-
ing Person (9) Sole Dispositive Power 0 - See
response to Item 5
With (10) Shared Dispositive Power 4,494,892 -
See response to Item 5
11) Aggregate Amount Beneficially Owned by Each Reporting
Person 4,494,892 - See response to Item 5
12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions) X
13) Percent of Class Represented byAmount in Row (11) 16.8%
14) Type of Reporting Person (See Instructions) CO
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Item 1. Security and Issuer.
The issuer of securities to which this statement relates is
InterCel, Inc., a Delaware corporation ("InterCel") having its
principal executive offices located at 1239 O. G. Skinner Drive,
West Point, Georgia 31833, and the title of such securities is
common stock, par value $.01 per share (the "Common Stock").
Item 2. Identity and Background.
This Schedule 13D is being filed by a group (the "Group"),
the members of which are SCANA Corporation, a South Carolina
corporation ("SCANA"), and MPX Systems, Inc., a South Carolina
corporation ("MPX") and a wholly owned subsidiary of SCANA.
SCANA is an energy-based holding company which, through its
subsidiaries, engages principally in electric and natural gas
utility operations and other energy-related businesses. MPX is
involved in telecommunications-related ventures providing fiber
optic telecommunications, video conferencing and specialized
mobile radio services in portions of the southeastern United
States. The principal business and executive offices of SCANA
are located at 1426 Main Street, Columbia, South Carolina 29218,
and the principal business and executive offices of MPX are
located at 440 Knox Abbot Drive, Cayce, South Carolina 29033.
The executive officers of SCANA are Lawrence M. Gressette,
Jr., Chairman of the Board and Chief Executive Officer; William
B. Timmerman, President; Bruce D. Kenyon, President and Chief
Operating Officer - South Carolina Electric and Gas Company, a
wholly owned subsidiary of SCANA ("SCE&G"); Asbury H. Gibbes,
Group Executive - SCANA Gas Group; Cathy B. Novinger, Senior Vice
President - Administration, Governmental and Public Affairs; Max
Earwood, Vice Chairman - SCANA Gas Group; Kevin B. Marsh, Vice
President -Finance, Chief Financial Officer and Controller; H.
Thomas Arthur, II, Vice President, General Counsel and Assistant
Secretary; and B. T. Zeigler, Vice President - SCANA and General
Counsel -SCE&G. The principal occupation of the aforementioned
officers of SCANA is to act as such officers and, in the case of
certain of such officers, as officers of certain of the
subsidiaries of SCANA. The business address of the
aforementioned officers and SCE&G is the same as the address of
the principal executive offices of SCANA.
SCE&G is an electric and natural gas utility. The SCANA Gas
Group is engaged in the businesses of (i) the purchase,
transmission, distribution and sale at wholesale and retail of
natural gas, (ii) acquiring, developing and operating oil and gas
producing properties, (iii) marketing natural gas and light
hydrocarbons and (iv) producing, storing, distributing and
selling propane.
The executive officers of MPX are Mr. Gressette, Chairman of
the Board and Chief Executive Officer, Mr. Timmerman, President,
Mr. Marsh, Chief Financial Officer, and Michael Blackwell,
Executive Vice President and General Manager. The principal
occupation of Mr. Blackwell is to act as the Executive Vice
President and General Manager of MPX, and his business address is
the same as the address of the principal executive offices of
MPX. The directors of MPX are the same persons as the directors
of SCANA.
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The directors of SCANA in addition to Messrs. Gressette,
Timmerman and Kenyon, who are listed above as executive officers,
are listed below along with their business addresses and
principal occupations:
Name and Business Address Principal
Occupation
Bill L. Amick Chairman of the Board and
Amick Farms, Inc. Chief Executive Officer of
Post Office Box 351 Amick Farms, Inc.
Batesburg, South Carolina 29006 (vertically integrated
broiler operations)
William B. Bookhart, Jr. Partner of Bookhart Farms
Bookhart Farms (general farming business)
Post Office Box 140
Elloree, South Carolina 29047
William T. Cassels, Jr. Chairman of the Board of
Southeastern Freight Lines, Inc. Southeastern Freight Post
Office Box 1691 Lines, Inc.
Columbia, South Carolina 29202 (trucking business)
Hugh M. Chapman Chairman of NationsBank
NationsBank South South
Post Office Box 4499
Atlanta, Georgia 30302-4899
James B. Edwards, D.M.D. President of the Medical
Medical University of South Carolina Medical University of 171
Ashley Avenue South Carolina
Charleston, South Carolina 29425-1010
Elaine T. Freeman Executive Director of ETV
ETV Endowment of South Carolina, Inc. Endowment of South 1029
Woodburn Road Carolina, Inc.
Spartanburg, South Carolina 29302 (non-profit organization)
Benjamin A. Hagood Chairman of the Board of
William M. Bird and Company, Inc. William M. Bird and
Post Office Box 20040 Company, Inc.
Charleston, South Carolina 29413 (wholesale distributor of
floor covering materials)
W. Hayne Hipp President and Chief The
Liberty Corporation Executive Officerof The
Post Office Box 789 Liberty Corporation
Greenville, South Carolina 29602 (insurance and broad-
casting holding company)
F. Creighton McMaster President and Manager of
Winnsboro Petroleum Company Winnsboro Petroleum
Drawer 449 Company
Winnsboro, South Carolina 29180 (wholesale distributor of
petroleum products)
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Henry Ponder, Ph.D. President of Fisk
Fisk University University
1000 17th Avenue North
Nashville, Tennessee 37208-3051
John B. Rhodes Chairman and Chief
Rhodes Oil Company, Inc. Executive Officer of Post
Office Drawer 1545 Rhodes Oil Company, Inc.
Walterboro, South Carolina 29488 (distributor of petroleum
products)
E. Craig Wall, Jr. President of Canal Canal
Industries, Inc. Industries, Inc.
Post Office Box 260001 (forest products industry
Conway, South Carolina 29526 company)
During the last five years, none of the persons named in
this Item 2 has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or has
been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
All of the executive officers and directors of SCANA and MPX
are citizens of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
MPX acquired its shares of the Common Stock of InterCel on
February 7, 1996 through a business combination consummated
pursuant to a Business Combination Agreement dated as of August
23, 1995 (the "Business Combination Agreement") among InterCel,
Powertel PCS Partners, L.P. ("Powertel"), the partners of
Powertel and the stockholders of certain partners of Powertel.
The following summary of certain provisions of the Business
Combination Agreement does not purport to be complete and is
qualified in its entirety by reference to the Business
Combination Agreement, a copy of which is an exhibit to this
Schedule 13D. Powertel was formed in October 1994 to pursue
personal communication services ("PCS") licenses for certain
major trading area ("MTA") markets. The partners of Powertel
were InterCel (through InterCel PCS Services, Inc., a wholly
owned subsidiary of InterCel); ITC Personal Communications, Inc.,
a wholly owned subsidiary of ITC Holding Company, Inc.; MPX;
South Atlantic PCS Corporation, a corporation owned by South
Atlantic Venture Fund II, Limited Partnership, South Atlantic
Venture Fund III, Limited Partnership and certain other
investors; NEIPCS Inc., a corporation owned by National
Enterprises Inc. and certain other investors; CIV PCS Investment
Corp., a wholly owned subsidiary of Centennial Fund IV, L.P.;
Bessemer Venture Partners III, L.P., a limited partnership owned
by Deer III and Co. and Bessemer Ventures, Inc.; and Southcoast
PCS Partnership, Ltd., a limited partnership owned by Southcoast
PCS Corporation and certain other investors (collectively, the
"Powertel Partners"). On March 13, 1995, the Federal
Communications Commission (the "FCC") announced its acceptance of
Powertel's bids for, and Powertel at a later date acquired, PCS
licenses for the Memphis, Tennessee/Jackson, Mississippi MTA, the
Birmingham, Alabama MTA and the Jacksonville, Florida MTA.
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Immediately prior to the business combination, MPX held a
40.2% partnership interest in Powertel. The Business Combination
Agreement provided that certain Powertel Partners (other than
InterCel) would exchange their partnership interests of Powertel
and the stockholders of the other Powertel Partners would
exchange the Common Stock of the corporations holding the
partnership interests of Powertel for an aggregate of 9,686,410
shares of Common Stock. Pursuant to the Business Combination
Agreement, at the closing of the business combination, Messrs.
Gressette and Timmerman were elected to the board of directors of
InterCel. The shares of Common Stock issued in the business
combination were not registered under the Securities Act of 1933,
as amended (the "Securities Act"), and were issued by InterCel in
reliance upon an exemption under Section 4(2) of the Securities
Act. The Business Combination Agreement provides certain
"piggyback" registration rights to the Powertel Partners and the
stockholders of the Powertel Partners receiving Common Stock in
the business combination exercisable under certain circumstances
during the period beginning one year and ending three years
following August 23, 1995.
In the Business Combination Agreement, Powertel, the
Powertel Partners and the stockholders of certain Powertel
Partners on the one hand, and InterCel on the other hand, have
each covenanted to indemnify the other, under certain
circumstances and subject to certain limitations, with respect to
(i) certain losses attributable to breaches of representations,
warranties or agreements made in the Business Combination
Agreement and (ii) certain losses incurred in connection with the
sales of stock pursuant to the registration rights described
above.
The exchange ratio used in the business combination was
based on the appraisals of the fair market value of Powertel and
InterCel as of June 12, 1995 prepared by Bond & Pecaro, Inc.
("Bond & Pecaro"), a consulting firm specializing in the
telecommunications industry. Fair market value was defined as
the price in cash or cash equivalents that would be paid by a
willing informed buyer to a willing informed seller, neither
being under compulsion to act. Such appraisals stated that, as
of June 12, 1995, the fair market value of Powertel was $152.0
million and the fair market value of InterCel was $140.0 million.
Excluding InterCel's 13.4% interest in Powertel, Bond & Pecaro
determined that the fair market value of the remaining interests
in Powertel was $131.6 million and that accordingly, the fair
market value of the combined entity was $271.6 million (the sum
of the fair market value of InterCel and the adjusted fair market
value of Powertel). The Powertel Partners' percentage ownership
of the combined entity was therefore determined to be 48.5%
($131.6 million divided by $271.6 million), and InterCel's
percentage ownership of the combined entity was determined to be
51.5%. As of the appraisal date, InterCel had 10,285,569 shares
outstanding on a diluted basis (including outstanding unvested
restricted shares and vested options to purchase shares, but
excluding treasury and unvested options). Assuming that such
10,285,569 shares of Common Stock represent a 51.5% ownership
interest of the combined entity, Bond & Pecaro determined that
9,686,410 shares of Common Stock would be issuable to the
Powertel Partners (or, in certain cases, the stockholders
thereof) in the business combination.
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Set forth below is certain information concerning the
partnership interests in Powertel and the number of shares of
Common Stock of InterCel issued in connection with such
partnership interests pursuant to the business combination.
Powertel Shares of
Partnership InterCel
Powertel Partner Interest Common Stock
Issued in
Business
Combination
InterCel 13.4% --- (a)
ITC Personal
Communications, Inc.(b) 20.9 2,338,671
MPX Systems, Inc. 40.2 4,494,892
South Atlantic PCS
Corporation(b) 13.4 1,498,298
NEIPCS Inc.(b) 5.9 657,924
CIV PCS Investment Corp.(b) 4.2 464,417
Bessemer Venture Partners
III, L.P. 1.7 193,507
Southcoast PCS Partnership,
Ltd. 0.3 38,701
Total 100.0% 9,686,410
(a) No shares of Common Stock were issued with respect to the
Powertel partnership interest held by InterCel.
(b) Shares of Common Stock were issued to the stockholder(s) of
such Powertel Partner in exchange for all outstanding common
stock of the Powertel Partner.
MPX financed its partnership interest in Powertel through
unsecured borrowings against its uncommitted lines of credit with
Tokai Bank, Limited and Industrial Bank of Japan, Limited. Such
borrowings had been repaid at February 7, 1996.
Item 4. Purpose of Transaction.
The Powertel business combination was effected in order to
position InterCel become a leading provider of wireless
telecommunications services in the Southeastern United States.
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MPX and InterCel have entered into a Stock Purchase
Agreement dated as of March 4, 1996 (the "MPX Agreement")
pursuant to which MPX agreed to acquire 100,000 shares of Series
B Convertible Preferred Stock, par value $.01 per share (the
"Series B Convertible Preferred Stock"), of InterCel for $75
million. The following summary of certain provisions of the MPX
Agreement does not purport to be complete and is qualified in its
entirety by reference to the MPX Agreement, a copy of which is an
exhibit to this Schedule 13D.
The Series B Convertible Preferred Stock to be acquired by
MPX from InterCel will (i) compose all of InterCel's preferred
stock of that series, (ii) be convertible at the election of MPX
at a conversion price (subject to adjustment for certain events
resulting in dilution) of $16.50 per share of Common Stock
(equivalent to the rate of 45.4545 shares of Common Stock for
each share of Series B Convertible Preferred Stock) commencing on
the fourth anniversary of its date of issue, (iii) be entitled to
receive, when and if declared by the board of directors of
InterCel, dividends in an amount per share equal to the dividends
payable on the number of shares of Common Stock into which one
share of Series B Convertible Preferred Stock is then
convertible, (iv) have a preference upon liquidation of $750 per
share and (v) be redeemable at the option of InterCel after the
fifth anniversary of its date of issue for an aggregate
redemption price of $750 per share plus declared and unpaid
dividends. Except as otherwise provided by law, the Series B
Convertible Preferred Stock will be non-voting except with
respect to (i) the creation of any class or series of stock
ranking prior to the Series B Convertible Preferred Stock as to
dividends or the distribution of assets upon liquidation,
dissolution or winding up, (ii) the increase in the authorized or
issued amount of Series B Convertible Preferred Stock or (iii)
the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the
Certificate of Incorporation of InterCel which would affect any
right, power or preference or voting power of Series B
Convertible Preferred Stock (except in connection with the
authorization or issuance of any series of preferred stock
ranking on a parity with or junior to the Series B Convertible
Preferred Stock).
The MPX Agreement provides that MPX will have certain
"demand" and "piggyback" registration rights exercisable under
certain circumstances after the Closing.
The closing of the transactions contemplated by the MPX
Agreement (the "Closing") is subject to the satisfaction of
certain conditions precedent, including (i) the accuracy at
Closing of certain representations and warranties of MPX and
InterCel, (ii) the delivery of certain certificates and opinions
of counsel, (iii) the approval by InterCel's stockholders of (a)
amendments to InterCel's Certificate of Incorporation increasing
the authorized Common Stock of InterCel to 55,000,000 shares and
(b) the convertibility of the Series B Convertible Preferred
Stock to Common Stock, (iv) the approval by the FCC of the
acquisition by InterCel of the Atlanta License (hereinafter
defined) and (v) the closing of the transactions contemplated by
the Ericsson Agreement and the Atlanta MTA Agreement (as such
terms are hereinafter defined). The MPX Agreement may be
terminated if the Closing shall not have occurred by September
30, 1996.
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InterCel and MPX have each covenanted to indemnify the
other, under certain circumstances and subject to certain
limitations, with respect to (i) certain losses attributable to
breaches of representations, warranties or agreements made in the
MPX Agreement and (ii) certain losses incurred in connection with
the sales of stock pursuant to the registration rights described
above.
MPX has covenanted under the MPX Agreement that for a period
of one year after the Closing, MPX shall not, without the prior
written consent of InterCel, offer, pledge, sell or otherwise
transfer or dispose of, any shares of the Series B Convertible
Preferred Stock, other than pledges or grants of security
interests to an unaffiliated bona fide pledgee or transfers to an
affiliate of MPX.
Pursuant to a Stock Purchase Agreement dated as of March 4,
1996 (the "Ericsson Agreement") between InterCel and Ericsson
Inc. ("Ericsson"), the terms and conditions of which are
substantially similar to those of the MPX Agreement, InterCel has
agreed to issue to Ericsson 100,000 shares of Series A
Convertible Preferred Stock, par value $.01 per share (the
"Series A Convertible Preferred Stock"), of InterCel for $75
million. The Series A Convertible Preferred Stock, upon
issuance, will be substantially identical in all respects to the
Series B Convertible Preferred Stock except that the Series A
Convertible Preferred Stock will become convertible at the option
of Ericsson on the second anniversary of its date of issue and
the holders of the Series A Convertible Preferred Stock have the
right to vote, as a single class with the holders of Common Stock
(with each share of Series A Convertible Preferred Stock having
the number of votes equal to the number of shares of Common Stock
into which it is then convertible) on any merger or consolidation
of InterCel, sale of all or substantially all of Intercel's
assets, statutory share exchange or other extraordinary
transaction.
Pursuant to an Asset Purchase Agreement (the "Atlanta MTA
Agreement") among GTE Mobilnet Incorporated ("GTE"), InterCel
Atlanta Licenses, Inc., a wholly owned subsidiary of InterCel,
and InterCel, InterCel has agreed to acquire from GTE the license
granted by the FCC to provide PCS utilizing 1.8 Ghz in the
Atlanta MTA (the "Atlanta License") for an aggregate
consideration of approximately $195 million assuming that the
closing is consummated on May 31, 1996 (for each day subsequent
to May 31, 1996 until the closing, the interest portion of the
purchase price will accrue at a rate of approximately $27,000 per
day). The Ericsson Agreement and the MPX Agreement have been
entered into by InterCel to provide a portion of the funds
required to purchase the Atlanta License from GTE.
SCANA expects to finance the purchase of the Series B
Convertible Preferred Stock through internally generated funds,
the sales of additional equity securities and the incurrence of
additional short-term and long-term indebtedness.
Depending upon market conditions and various other factors
that SCANA and MPX may deem material, they may in the future
acquire additional shares of Common Stock or, after the shares of
Series B Convertible Preferred Stock become convertible, convert
the Series B Convertible Preferred Stock into shares of Common
Stock. Depending upon the same factors, SCANA and MPX may decide
to sell or otherwise dispose of part or all of the investment in
InterCel.
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Other than as indicated above, neither SCANA nor MPX has any
present plans or proposals which relate to or would result in any
of the following (although SCANA and MPX reserve the right to
develop such plans or proposals): (i) the acquisition of
additional securities of InterCel, or the disposition of
securities of InterCel; (ii) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation,
involving InterCel or any of its subsidiaries; (iii) a sale or
transfer of a material amount of assets of InterCel or any of its
subsidiaries; (iv) any change in the present board of directors
or management of InterCel, including any plans or proposals to
change the number or term of directors or to fill any existing
vacancies on InterCel's board of directors; (v) any material
change in the present capitalization or dividend policy of
InterCel; (vi) any other material change in InterCel's business
or corporate structure; (vii) change in InterCel's charter or
bylaws or other actions which may impede the acquisition of
control of InterCel by any person; (viii) causing a class of
securities of InterCel to be delisted from a national securities
exchange or to cease to be authorized to be quoted in an inter-
dealer quotation system of a registered national securities
association; (ix) a class of equity securities of InterCel
becoming eligible for termination of registration pursuant to
Section 12(g)(4) of the Securities Exchange Act of 1934, as
amended; or (x) any action similar to any of those enumerated
above.
Item 5. Interest in Securities of the Issuer.
Of the persons identified in Item 2, only the Group, SCANA,
MPX and Mr. Blackwell own, indirectly or directly, Common Stock.
The Group owns 4,494,892 shares of Common Stock through its
members. MPX owns of record 4,494,892 shares of Common Stock and
SCANA owns indirectly all the shares of Common Stock owned of
record by MPX. Mr. Blackwell owns 5,500 shares of Common Stock,
2,000 of which were purchased on February 1, 1996 at $16.50 per
share and 1,000 of which were purchased on February 26, 1996 at
$17.00 per share. SCANA and MPX disclaim beneficial ownership of
any Common Stock owned by Mr. Blackwell. The Common Stock owned
by the Group through its members, owned of record by MPX and
owned indirectly by SCANA represents approximately 16.8% of the
26,823,694 shares of issued and outstanding Common Stock of
InterCel as represented in the MPX Agreement dated as of March 4,
1996.
The Group, through its members, has sole voting power and
sole dispositive power with respect to the 4,494,892 shares of
Common Stock owned of record by MPX. SCANA and MPX have shared
voting power and shared dispositive power with respect to such
shares. With respect to the Series B Convertible Preferred Stock
noted under Item 4, the Group, through its members, will have the
sole voting power and sole dispositive power, including the right
to cause conversion of the Series B Convertible Preferred Stock
into Common Stock. SCANA and MPX have shared voting power and
shared dispositive power with respect to such shares, including
the right to cause conversion of the Series B Convertible
Preferred Stock into Common Stock.
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MPX owns approximately 6.7% of the common stock of ITC
Holding Company, Inc. ("ITC Holding"), which owns approximately
7,337,711 shares or 27.5% of the Common Stock outstanding. MPX
also owns approximately 16.1% of ITC Associates, a general
partnership which owns approximately 20% of the common stock of
ITC Holding. In addition, Mr. Blackwell is one of ten directors
of ITC Holding. SCANA and MPX disclaim beneficial ownership of
the shares of Common Stock owned by ITC Holding.
Reference is made to Items 3 and 4 for information with
respect to transactions in Common Stock that were effected during
the past 60 days by SCANA and MPX.
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the
Issuer.
There are presently no contracts, arrangements,
understandings or relationships (legal or otherwise) among the
persons named in Item 2 or between such persons and any person
with respect to any securities of InterCel other than those
disclosed in Items 3, 4 and 5.
Item 7. Material to be Filed as Exhibits.
Exhibit I. Agreement pursuant to Rule 13d-1(f)
Exhibit II. Business Combination Agreement
Exhibit III. Amendment to Business Combination
Agreement
Exhibit IV. MPX Agreement
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
March 26, 1996
(Date)
SCANA Corporation
By s/William B. Timmerman
(Signature)
William B. Timmerman, President
(Name/Title)
March 26, 1996
(Date)
MPX Systems, Inc.
By s/William B. Timmerman
(Signature)
William B. Timmerman, President
(Name/Title)
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Exhibit I
AGREEMENT REQUIRED BY
RULE 13d-1(f)
Each of the undersigned agrees that this Schedule 13D is being
filed on behalf of each of them.
SCANA CORPORATION
By: s/William B. Timmerman
Its: President
Date: March 26, 1996
MPX SYSTEMS, INC.
By: s/William B. Timmerman
Its: President
Date: March 26, 1996
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EXHIBIT II
BUSINESS COMBINATION AGREEMENT
AMONG
INTERCEL, INC.,
POWERTEL PCS PARTNERS, L.P.,
THE PARTNERS OF POWERTEL PCS PARTNERS, L.P.
AND
THE STOCKHOLDERS OF CERTAIN OF THE PARTNERS OF
POWERTEL PCS PARTNERS, L.P.
Dated as of
August 23, 1995
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BUSINESS COMBINATION AGREEMENT
THIS BUSINESS COMBINATION AGREEMENT is entered into as of
August 23, 1995 among InterCel, Inc., a Delaware corporation
("InterCel"), Powertel PCS Partners, L.P., a Delaware limited
partnership ("Powertel") (InterCel and Powertel being sometimes
referred to as the "Companies" and individually as a "Company"),
the partners of Powertel specified on Exhibits A and B (the
"Partners" or individually, a "Partner"), and the stockholders of
the Partners specified on Exhibit B (the "Stockholders" or
individually, a "Stockholder").
WHEREAS, the Partners own all of the partnership interests
(the "Partnership Interests") of Powertel; and
WHEREAS, the Stockholders own all of the issued and
outstanding shares of common stock of the Partners set forth
opposite their names on Exhibit B (the "Common Stock" and
WHEREAS, the Partners specified on Exhibit A desire to sell
and InterCel desires to purchase all of the Partnership Interests
specified on Exhibit A at the price and upon the terms and
conditions hereinafter set forth; and
WHEREAS, the Stockholders desire to sell and InterCel desires
to purchase all of the issued and outstanding shares of Common
Stock at the price and upon the terms and conditions hereinafter
set forth; and
WHEREAS, the Board of Directors of InterCel and the Partners
Committee of Powertel have determined that it is advisable that
Powertel be combined with InterCel (the "Business Combination") on
the terms and conditions hereinafter set forth, and the Board of
Directors and the Partners Committee have adopted resolutions
approving this Business Combination Agreement and the transactions
contemplated hereby;
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NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties
hereto hereby agree as follows:
DEFINITIONS
For all purposes of this Business Combination Agreement,
certain capitalized terms specified on Exhibit C shall have the
meanings set forth on Exhibit C, except as otherwise expressly
provided.
2. BUSINESS COMBINATION; EXCHANGE OF PARTNERSHIP INTERESTS
AND COMMON STOCK
2.1. Effective Time
Subject to the provisions hereof, the contribution of
Partnership Interests and Common Stock to InterCel shall become
effective when (a) all of the Partnership Interests to be
transferred to InterCel by the Partners specified on Exhibit A in
exchange for shares of InterCel Common Stock and (b) all of the
number of shares of issued and outstanding Common Stock set forth
opposite the name of each Stockholder on Exhibit B (which
constitute all of the outstanding shares of capital stock of the
Partners set forth opposite the names of the Stockholders on
Exhibit B) to be transferred to InterCel by the Stockholders in
exchange for shares of InterCel Common Stock have been so
transferred (the "Effective Time").
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2.2. Receipt of InterCel Common Stock for Partnership
Interests or Common Stock
In consideration of the Business Combination and subject
to the terms and conditions hereof, (a) all of the Partnership
Interests specified on Exhibit A outstanding immediately prior to
the Business Combination (except for those owned by InterCel PCS
Services, Inc., which shall be extinguished) and (b) all of the
shares of Common Stock issued and outstanding immediately prior to
the Business Combination shall, at the Effective Time, be
contributed to InterCel in exchange for shares of InterCel Common
Stock. Each Partner shall receive the number of shares of InterCel
Common Stock set forth opposite such Partner's name on Exhibit A
and each Stockholder shall receive the number of shares of InterCel
Common Stock set forth opposite such Stockholder's name on Exhibit
B.
3. ADDITIONAL AGREEMENTS, UNDERTAKINGS AND COVENANTS
InterCel, on the one hand, and Powertel, the Partners and
the Stockholders, jointly and severally on the other hand (as
applicable), hereby covenant and agree with each other as follows:
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3.1. Consents and Approvals
3.1.1. General
InterCel, Powertel, the Partners and the Stockholders
shall take all measures reasonably necessary or advisable to secure
such consents, authorizations and approvals of governmental and
supragovernmental authorities and of private persons or entities
with respect to the transactions contemplated by, resulting from or
related to this Business Combination Agreement, and to the
performance of all other obligations of such parties contemplated
hereunder, resulting herefrom or related hereto as may be required
by any applicable statute or regulation of the United States or any
country, state or other jurisdiction or by any provision of bylaws
or certificate or articles of incorporation or by any Agreement of
any kind whatsoever to which InterCel, Powertel, any Partner or any
Stockholder is a party or by which InterCel, Powertel, any Partner
or any Stockholder is bound. InterCel, Powertel, the Partners and
the Stockholders shall (a) cooperate in the filing of all forms,
notifications, reports and information, if any, required or
reasonably deemed advisable pursuant to applicable statutes, rules,
regulations or orders of any governmental or supragovernmental
authority in connection with the transactions contemplated by this
Business Combination Agreement and (b) use their respective good
faith efforts to cause any applicable waiting periods thereunder to
expire and any objections to the transactions contemplated hereby
to be withdrawn before the Closing.
3.1.2. Hart-Scott-Rodino
In addition to the obligations set forth in Section
3.1.1, as promptly as practicable following the execution of this
Business Combination Agreement, Powertel, the Partners, the
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Stockholders and InterCel shall complete any filing that may be
required pursuant to Hart-Scott-Rodino, or shall mutually agree
that no such filing is required. Powertel, the Partners, the
Stockholders and InterCel shall diligently take (or fully cooperate
in the taking of) all actions, and provide any additional
information, required or reasonably requested in order to comply
with the requirements of Hart-Scott-Rodino. InterCel and Powertel
shall each pay one-half of the Hart-Scott-Rodino filing fee.
3.1.3. Federal Communications Commission
In addition to the obligations set forth in Section
3.1.1, as promptly as practicable, each of InterCel and Powertel
shall diligently take (and the other parties shall fully cooperate
in the taking of) all actions, and provide all information,
required or reasonably requested in order to obtain prior to the
Closing Date the consent of the Federal Communications Commission
to all of the transactions contemplated by this Business
Combination Agreement.
3.1.4. Stockholders' Meeting
As promptly as practicable following execution of this
Business Combination Agreement, the Board of Directors of InterCel
shall cause to be duly called and held a meeting of its
stockholders for the purpose (among other things) of considering
and approving all actions requiring stockholder approval which are
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required or necessary in connection with the consummation of this
Business Combination Agreement and the transactions contemplated
hereby, and InterCel shall recommend to its stockholders the
approval of all such actions. Each Partner and each Stockholder
shall, and shall use its best efforts to ensure that each of its
Affiliates shall, cast all votes that it may have as a result of
ownership of InterCel Common Stock in favor of approval of all
actions requiring stockholder approval which are required or
necessary in connection with the consummation of this Business
Combination Agreement and the transactions contemplated hereby.
3.2. Operation of Business of the Companies
3.2.1. Preserve Business
Except as expressly agreed to by the other Company, each
Company shall, through the Effective Time, (a) preserve its
business organizations and its present relationships with
customers, suppliers, consultants, employees and any other persons
having business relations with such Company; and (b) maintain all
of its Assets in customary repair and condition.
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3.2.2 Conduct Business in Ordinary Course
Except as contemplated by this Business Combination
Agreement, as expressly agreed to by the other Company, or as
reasonably required to carry out its obligations hereunder, each
Company shall, through the Effective Time, conduct its business
only in the Ordinary Course of Business and, in addition, shall
not: (i) issue any capital stock or partnership interest or any
options, warrants or other rights to subscribe for or purchase any
of its capital stock or partnership interests or any securities
convertible into or exchangeable for its capital stock or
partnership interests other than, in the case of InterCel, as
contemplated by Section 8.7 and issuances and grants in connection
with its stock option and restricted stock plans; (ii) declare, set
aside or pay any dividend or distribution with respect to its
capital stock or partnership interests; (iii) directly or
indirectly redeem, purchase or otherwise acquire any of its capital
stock or partnership interests; (iv) effect a split,
reclassification or other similar change in or of any of its
capital stock or partnership interests; (v) amend its certificate
of incorporation (other than, in the case of InterCel, as
contemplated by Section 3.9) or bylaws or its certificate of
limited partnership or limited partnership agreement; (vi) sell or
otherwise dispose of any interest in any material Asset (other than
in the Ordinary Course of Business); or (vii) violate any Law.
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3.2.3. Notice of Adverse Change
Each Company shall notify the other Company promptly of
any material adverse change in the business, operations, prospects,
condition (financial or otherwise), Assets or liabilities of such
Company, and shall provide information (including, without
limitation, copies of all Documents relating thereto) concerning
all Claims instituted, threatened or asserted against or affecting
such Company, or its business or Assets at law or in equity or
admiralty, before or by any court or governmental authority.
3.2.4. Books of Record and Account; Financial
Statements
Each Company shall keep proper books of record and account
in which true and complete entries will be made of all transactions
in accordance with generally accepted accounting principles applied
on a basis consistent with prior periods, and shall supply to the
other Company quarterly unaudited consolidated balance sheets and
statements of income of such Company, prepared in compliance with
Section 4.5, within 45 days after the end of each quarter, and such
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other Documents (financial or otherwise) as the other Company shall
reasonably request. All such financial statements and other
Documents shall be attached to and made a part of such Company's
Disclosure Schedule, but shall not excuse breaches of
representations, warranties, covenants and Agreements disclosed in
such statements and other Documents.
3.3. Taxes
3.3.1. Cooperation
InterCel, Powertel, the Partners and the Stockholders
shall cooperate with, and make available to, each other such Tax
data, Tax Returns, and other information as may be reasonably
requested in connection with (a) the preparation or filing of any
Tax Return, election, consent, or certification, or any claim for
refund, (b) any determinations of liability for Taxes, or (c) any
audit, examination, or other proceeding in respect of Taxes ("Tax
Data"). Without limiting the foregoing, each such entity or person
shall provide explanations and background information and permit
the copying of the books, records, schedules, work papers, notices,
revenue agent reports, settlement or closing agreements, and other
documents containing the Tax Data ("Tax Documentation").
3.3.2. Retention of Information
The Tax Data and the Tax Documentation shall be retained
until one year after the expiration of the applicable statute of
limitations (including extensions thereof); provided, however,
that in the event that an audit, examination, investigation, or
other proceeding has been instituted prior to the expiration of
the applicable statue of limitations (or in the event of any
Claim under this Business Combination Agreement), the information
shall be retained until there is a final determination thereof
(and the time for any appeal has expired).
3.3.3. Tax Reporting
To the extent permitted under applicable Tax Laws, the
Business Combination shall be reported as a tax-free contribution
pursuant to section 351 of the Code in all federal, state, and
local Tax Returns filed after the Effective Time.
Notwithstanding any other provision of this Business Combination
Agreement, the obligations set forth in this Section 3.3.3 shall
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survive the Effective Time without limitation as to time or in
any other respect. Neither InterCel nor any of its officers or
directors shall be liable to Powertel, any of the Partners or any
of the Stockholders because of any failure of the Business
Combination to qualify as a tax-free contribution pursuant to
section 351 of the Code.
3.4. No Inconsistent Negotiations
Subject to fiduciary obligations under law as advised by
counsel in writing, neither Powertel nor any of the Partners or
Stockholders shall, nor shall any of them permit or authorize any
director, officer, employee or other agent of Powertel or any of
the Partners or Stockholders, directly or indirectly, to:
(i) take any action to solicit, initiate or encourage
the submission of a Proposal, or
(ii) participate in any negotiations regarding, or
furnish to any other person, entity or group any non-public
information with respect to, or otherwise cooperate in any way
with, or assist or participate in, facilitate, or encourage, any
effort or attempt by any other person, entity or group to do or
seek any of the foregoing.
In addition, Powertel, the Partners and the Stockholders shall
use their best efforts to cause any financial adviser engaged by
Powertel, any Partner or any Stockholder for any purpose within the
past 12 months to refrain from taking any of the actions referred
to in clause (i) or (ii) of the immediately preceding sentence.
Subject to fiduciary obligations under law, as advised by counsel
in writing, Powertel, the Partners and the Stockholders shall
immediately cease and cause to be terminated any existing
discussions or negotiations with any parties (other than InterCel)
conducted heretofore with respect to any of the foregoing.
Powertel, the Partners or the Stockholders shall notify InterCel
promptly if any Proposal, or any inquiry or contact with any person
with respect thereto, is made and shall, in any such notice to
InterCel, indicate in reasonable detail the identity of the offeror
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and the terms and conditions of the Proposal, including the
proposed financing for such Proposal. Powertel, the Partners or
the Stockholders shall respond to any such Proposal only to the
extent required by fiduciary obligations under law, as advised by
counsel in writing.
3.5. News Releases
Except as may be otherwise necessary and appropriate in
connection with securities laws and regulations and The Nasdaq
Stock Market requirements, neither InterCel nor Powertel (nor any
Partner or Stockholder) shall issue or approve any news release or
other public announcement concerning the transactions contemplated
by this Business Combination Agreement without the prior approval
of InterCel and Powertel (which approval shall not be unreasonably
withheld or delayed).
3.6. Subsequent Events
Each Company (and, in the case of Powertel, the Partners
and the Stockholders) shall notify the other Company promptly in
writing of the occurrence of any event, or the failure of any event
to occur, prior to the Effective Time, that results in an omission
from, or breach of, any of the covenants, representations or
warranties made by or on behalf of such Company, the Partners or
the Stockholders in this Business Combination Agreement, the
applicable Disclosure Schedule or any other Document Furnished in
connection with or pursuant to this Business Combination Agreement,
but such notification shall not excuse breaches of representations,
warranties, covenants or Agreements disclosed in such notification.
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3.7. Notice of Litigation
Any Partner or Stockholder that institutes litigation
involving or related to this Business Combination Agreement shall
notify all other Partners and Stockholders not party to such
litigation promptly in writing of the institution of such
litigation.
3.8. Waiver of Transfer Restrictions
Powertel and each of the Partners hereby waive the
applicability of the provisions of Section 9 of the Agreement of
Limited Partnership of Powertel dated October 26, 1994, as amended,
in connection with this Business Combination Agreement and the
transactions contemplated hereby.
3.9. Certificate of Incorporation
Prior to the Effective Time, InterCel shall amend its
Certificate of Incorporation substantially in the form set forth on
Exhibit G.
3.10. Directors
InterCel shall use its best efforts to insure that,
commencing at the Effective Time, the Board of Directors of
InterCel shall consist of (a) Donald W. Burton, Bert G. Clifford
and Maurice P. O'Connor, each to serve until the annual meeting of
stockholders in 1996 and until his successor is elected; (b) O.
Gene Gabbard, William B. Timmerman and Donald W. Weber, each to
serve until the annual meeting of stockholders in 1997 and until
his successor is elected; and (c) Lawrence M. Gressette, Jr.,
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Campbell B. Lanier, III and Allen E. Smith, each to serve until the
annual meeting of stockholders in 1998 and until his successor is
elected
4. REPRESENTATIONS AND WARRANTIES OF POWERTEL, THE PARTNERS
AND THE STOCKHOLDERS
Except as specifically set forth in the Powertel
Disclosure Schedule (with a disclosure with respect to a Section of
this Business Combination Agreement to require a specific reference
in the Powertel Disclosure Schedule to the Section of this Business
Combination Agreement to which each such disclosure applies, and no
disclosure to be deemed to apply with respect to any Section to
which it does not expressly apply), Powertel, each of the Partners
and each of the Stockholders jointly and severally represent and
warrant (which representation and warranty shall be deemed to
include the disclosure with respect thereto so specified in the
Powertel Disclosure Schedule) to InterCel and agree with InterCel
as follows:
4.1. Organization and Standing
Powertel is a limited partnership duly organized,
validly existing and in good standing under the laws of the State
of Delaware. Powertel has the full and unrestricted partnership
power and authority to own, operate and lease its Assets, to
carry on its business as currently conducted, to execute and
deliver this Business Combination Agreement and to carry out the
transactions contemplated hereby. Powertel is duly qualified to
conduct business as a foreign limited partnership and is in good
standing in the states, countries and territories listed on the
Powertel Disclosure Schedule. Powertel is not qualified to
conduct business in any other jurisdiction, and neither the
nature of the business conducted by Powertel nor the character of
the Assets owned, leased or otherwise held by it makes any such
qualification necessary except for such jurisdictions wherein
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the absence of licensing or qualification as a foreign limited
partnership would not have a material adverse effect upon the
business of Powertel as currently conducted.
4.2. Subsidiaries
Powertel has no Subsidiaries and no equity investment
or other interest in, nor has Powertel made advances or loans to,
any corporation, association, partnership, joint venture or other
entity.
4.3. Certificate of Limited Partnership and Limited
Partnership Agreement
Powertel has Furnished to InterCel a true and complete
copy of the certificate of limited partnership of Powertel, as
currently in effect, and a true and complete copy of the
partnership agreement of Powertel, including all amendments
thereto, as currently in effect.
4.4. Capitalization
The authorized partnership capital of Powertel totals
$144,500,001 and consists of 87.0111% general partner interests and
12.9889% limited partner interests. There are no outstanding
securities convertible into or exchangeable for Partnership
Interests and no outstanding options, rights (preemptive or
otherwise), or warrants to purchase or to subscribe for any
Partnership Interests or other securities of Powertel. There are
no outstanding Agreements affecting or relating to the voting,
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issuance, purchase, redemption, repurchase or transfer of
Partnership Interests or any other securities of Powertel, except
for the Powertel Partnership Agreement and except as contemplated
hereunder.
4.5. Financial Statements
Powertel has prepared and Furnished to InterCel and
there are included as exhibits that are part of the Powertel
Disclosure Schedule, the audited balance sheets of Powertel as of
the end of the fiscal year ending in 1994 and the audited
statements of operations, cash flows and changes in partners'
capital for such fiscal year, accompanied by the related report of
Arthur Andersen LLP, independent certified public accountants.
Powertel also has prepared and Furnished to InterCel, within 45
days after the end of any quarter referenced in this Section 4.5,
and there are included as exhibits that are part of the Powertel
Disclosure Schedule, the unaudited balance sheets of Powertel as of
the end of each quarter of Powertel ending after December 31, 1994,
and the unaudited statements of operations, cash flows and changes
in partners' capital for the quarter then ended. All of the
financial statements, including, without limitation, the notes
thereto, referred to in this Section 4.5 or Furnished to InterCel
after the date hereof pursuant to this Business Combination
Agreement: (a) are in accordance with the books and records of
Powertel; (b) present fairly the financial position of Powertel as
of the respective dates and the results of operations and changes
in financial position for the respective periods indicated; and (c)
have been prepared in accordance with generally accepted accounting
principles applied on a basis consistent with prior accounting
periods, except in the case of interim financial statements for
normal year-end adjustments and the absence of footnote
disclosures. The Powertel Disclosure Schedule sets forth all
changes in accounting methods (for financial accounting purposes)
at any time made, agreed to, requested or required with respect to
Powertel.
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4.6. Reports and Records
All returns, reports and statements relating to the
Assets of Powertel currently required to be filed by Powertel with
any Regulatory Authority have been filed and complied with and are
true, correct and complete in all material respects. All such
returns, reports and statements shall continue to be filed on a
current basis until the Closing Date, and will be true, correct and
complete in all material respects. All logs and business records
of every type and nature relating to the business and operations of
Powertel and the Powertel Licenses and other records pertaining to
the business and operations of Powertel have been maintained in all
material respects in accordance with good business practices and
the rules of the Federal Communications Commission.
4.7. Powertel Licenses
Powertel holds all the Powertel Licenses, all of which
are described in the Powertel Disclosure Schedule, and such
Powertel Licenses constitute all authority from any and all
governmental authorities and Regulatory Authorities, that are
necessary to carry on the personal communications services business
and other operations of Powertel as presently proposed to be
conducted. The Powertel Licenses are valid and in full force and
effect through the respective dates indicated in the Powertel
Disclosure Schedule; no notice of cancellation, default or dispute
has been received by or is known to the Partners, the Stockholders
or Powertel; and there are no orders, complaints, proceedings or
investigations, pending or, so far as the Partners or the
Stockholders know, threatened, that would affect the validity of
the Powertel Licenses. Except as indicated in the Powertel
Disclosure Schedule, there is no material violation relating to the
Powertel Licenses or any of the Assets of Powertel of any rules and
regulations of any Regulatory Authority, and Powertel is in
compliance in all material respects with the terms and conditions
of the Powertel Licenses. If notice of any such violation is
received or if any Partner or Stockholder hereafter becomes aware
of any such violation, such Partner or Stockholder shall promptly
notify InterCel, and Powertel at its own expense shall cure all
such violations prior to the Closing.
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4.8. Taxes
4.8.1. Filed Returns
Powertel has (or, in the case of returns becoming due
after the date hereof and on or before the Effective Time, will
have prior to the Effective Time) duly filed all Powertel Tax
Returns required to be filed by Powertel on or before the Closing
Date with respect to all applicable Taxes. No penalties or other
charges are or will become due with respect to any of the Powertel
Tax Returns as the result of the late filing thereof. Except as
set forth in the Powertel Disclosure Schedule, all of the Powertel
Tax Returns are (or, in the case of returns becoming due after the
date hereof and on or before the Closing Date, will be) true and
complete in all respects. Powertel: (i) has paid all Taxes due or
claimed to be due by any Taxing authority in connection with any of
the Powertel Tax Returns (without regard to whether or not such
Taxes are shown as due on such Powertel Tax Returns); or (ii) has
established (or, in the case of amounts becoming due after the date
hereof, prior to the Closing Date will have paid or established) in
financial statements provided to InterCel pursuant to this Business
Combination Agreement adequate reserves (in conformity with
generally accepted accounting principles consistently applied) for
the payment of such Taxes.
4.8.2. Tax Liability
Powertel, either in its own right or as a transferee,
has or on the Closing Date will have no liability for Taxes payable
for or with respect to any periods prior to and including the
Closing Date in excess of the amounts actually paid prior to the
Closing Date or reserved for in financial statements Furnished to
InterCel pursuant to this Business Combination Agreement.
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4.8.3. Tax Audits
There is no action, suit, proceeding, audit,
investigation or claim pending or, to the knowledge of Powertel,
the Partners or the Stockholders, threatened in respect of any
Taxes for which Powertel is or may become liable, nor has any
deficiency or claim for any such Taxes been proposed, asserted or,
to the knowledge of Powertel, the Partners or the Stockholders,
threatened. Powertel has not consented to any waivers or
extensions of any statute of limitations with respect to any
taxable year of Powertel. There is no Agreement, waiver or consent
providing for an extension of time with respect to the assessment
or collection of any Taxes against Powertel, and no power of
attorney granted by Powertel with respect to any tax matters is
currently in force.
4.8.4. Tax Returns
Powertel has Furnished to InterCel true and complete
copies of all Powertel Tax Returns and all written communications
relating to any such Powertel Tax Returns or to any deficiency or
claim proposed and/or asserted, irrespective of the outcome of such
matter, but only to the extent such items relate to tax years (a)
that are subject to an audit, investigation, examination or other
proceeding, or (b) with respect to which the statute of limitations
has not expired.
4.8.5 Miscellaneous
Powertel (a) is not and has never been a partner in a
partnership or an owner of an interest in an entity treated as a
partnership for federal income tax purposes; (b) is not subject to
Section 999 of the Code; and (c) is not a party to an Agreement
relating to the sharing, allocation or payment of, or indemnity
for, Taxes.
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4.9. Restrictions and Consents
There are no Agreements, Laws or other restrictions of
any kind to which Powertel (or any Asset thereof) is party or
subject that would prevent or restrict the execution, delivery or
performance of this Business Combination Agreement or result in any
penalty, forfeiture, Agreement termination, or restriction on
business operations of InterCel or Powertel as a result of the
execution, delivery or performance of this Business Combination
Agreement. The Powertel Disclosure Schedule lists all such
Agreements and Laws that reasonably could be interpreted or
expected to require the consent or acquiescence of any person or
entity not party to this Business Combination Agreement with
respect to any aspect of the execution, delivery or performance of
this Business Combination Agreement or any transaction otherwise
resulting from or related hereto by Powertel, any of the Partners
or any of the Stockholders, and sets forth the name(s) of the
person or entity required to provide such consent or acquiescence.
4.10. Authorization
The execution, delivery and performance by Powertel of
this Business Combination Agreement and all other Documents
contemplated hereby, the fulfillment of and compliance with the
respective terms and provisions hereof and thereof, and the
consummation by Powertel of the transactions contemplated hereby
and thereby or related hereto or thereto, do not and will not: (a)
require any consent or approval of Powertel, any of the Partners or
any of the Stockholders or Affiliates thereof that has not been
obtained prior to the execution of this Business Combination
Agreement by Powertel, and all such required consents or approvals
are set forth in the Powertel Disclosure Schedule and are final and
in full force and effect on the date hereof; (b) conflict with, or
violate any provision of, any Law having applicability to Powertel
or any of its Assets, or any provision of the certificate of
limited partnership or limited partnership agreement of Powertel;
(c) conflict with, or result in any breach of, or constitute a
default under any Agreement to which Powertel is a party or by
which it or any of its Assets may be bound; or (d) result in or
require the creation or imposition of or result in the acceleration
of any indebtedness, or of any Encumbrance of any nature upon, or
with respect to, Powertel or any of the Assets now owned or
hereafter acquired by Powertel.
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4.11. Absence of Violation
Powertel is not in violation of or default under, nor
has it breached, any term or provision of its certificate of
limited partnership or limited partnership agreement, as amended,
or any Agreement or restriction to which Powertel is a party or by
which Powertel or any Asset thereof is bound or affected. Powertel
has complied in all material respects and is in compliance in all
material respects with all Laws. Neither Powertel, nor any of its
officers, employees or agents (or Partners, distributors,
representatives or other persons acting on the express, implied or
apparent authority of Powertel) have paid, given or received or
have offered or promised to pay, give or receive, any bribe or
other unlawful, questionable or unusual payment of money or other
thing of value, any extraordinary discount, or any other unlawful
or unusual inducement, to or from any person, business association
or governmental official or entity in the United States or
elsewhere in connection with or in furtherance of the business of
Powertel (including, without limitation, any offer, payment or
promise to pay money or other thing of value (i) to any foreign
official or political party (or official thereof) for the purposes
of influencing any act, decision or omission in order to assist
Powertel in obtaining business for or with, or directing business
to, any person, or (ii) to any person, while knowing that all or a
portion of such money or other thing of value will be offered,
given or promised to any such official or party for such purposes).
The business of Powertel is not in any manner dependent upon the
making or receipt of such payments, discounts or other inducements.
4.12. Binding Obligation
This Business Combination Agreement constitutes a
valid and binding obligation of Powertel, enforceable in
accordance with its terms; and each Document to be executed by
Powertel pursuant hereto, when executed and delivered in
accordance with the provisions hereof, shall be a valid and
binding obligation of Powertel, enforceable in accordance with
its terms.
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5. REPRESENTATIONS AND WARRANTIES OF EACH PARTNER AND EACH
STOCKHOLDER
Except as specifically set forth in the Powertel Disclosure
Schedule (with a disclosure with respect to a Section of this
Business Combination Agreement to require a specific reference in
the Powertel Disclosure Schedule to the Section of this Business
Combination Agreement to which each such disclosure applies, and no
disclosure to be deemed to apply with respect to any Section to
which it does not expressly apply), each Partner and each
Stockholder severally represents and warrants (which
representations and warranties shall be deemed to include the
disclosure with respect thereto so specified in the Powertel
Disclosure Schedule) to InterCel and agrees with InterCel as
follows:
5.1. Title to Partnership Interests and Common Stock
5.1.1. Title to Partnership Interests
Such Partner is, and on the Closing Date will be, the
lawful owner of the Partnership Interest set forth opposite the
name of such Partner in Exhibit A or Exhibit B, as applicable.
Since the date of the acquisition of such Partnership Interest by
such Partner, there has been no event, or action taken (or failure
to take action) by or against such Partner, that has resulted or
might result in the creation of any Encumbrance on such Partnership
Interest. Such Partner has, and on the Closing Date such Partner
will have, good, valid and marketable title, free and clear of all
Encumbrances, to the Partnership Interest so set forth on Exhibit
A or Exhibit B, as applicable. Such Partner listed on Exhibit A
has full right and lawful authority to contribute and transfer the
Partnership Interest to InterCel pursuant to this Business
Combination Agreement.
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5.1.2. Title to Common Stock
Such Stockholder is, and on the Closing Date will be,
the lawful owner of the number of shares of Common Stock set forth
opposite the name of such Stockholder in Exhibit B. Since the date
of the issuance or sale of such shares of Common Stock to such
Stockholder, there has been no event, or action taken (or failure
to take action) by or against such Stockholder, that has resulted
or might result in the creation of any Encumbrance on such shares.
Such Stockholder has, and on the Closing Date such Stockholder will
have, good, valid and marketable title, free and clear of all
Encumbrances, to the number of shares of Common Stock so set forth
in Exhibit B, with full right and lawful authority to contribute
and transfer the shares to InterCel pursuant to this Business
Combination Agreement.
5.2. Capacity and Authorization
Such Partner or Stockholder has full legal right,
capacity, power and authority (corporate or otherwise) to execute
this Business Combination Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and
performance by such Partner or Stockholder of this Business
Combination Agreement and all other Documents contemplated hereby,
the fulfillment of and compliance with the respective terms and
provisions hereof and thereof, and the consummation by such Partner
or Stockholder of the transactions contemplated hereby and thereby
or related hereto or thereto, do not and will not: (a) require any
consent or approval of such Partner or Stockholder or any Affiliate
thereof that has not been obtained prior to the execution of this
Business Combination Agreement by such Partner or Stockholder, and
all such required consents and approvals are set forth in the
Powertel Disclosure Schedule and are final and in full force and
effect as of the date hereof; (b) conflict with, or violate any
provision of, any Law having applicability to such Partner or
Stockholder or any of its Assets, or any provision of the
certificate of partnership or partnership agreement, or certificate
or articles of incorporation or bylaws of such Partner or
Stockholder, as applicable; (c) conflict with, or result in any
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breach of, or constitute a default under any Agreement to which
such Partner or Stockholder is a party or by which such Partner or
Stockholder or any of its Assets may be bound.
5.3. Restrictions and Consents
There are no Agreements, Laws or other restrictions of
any kind to which such Partner or Stockholder (or any Asset
thereof) is party or subject that would prevent or restrict the
execution, delivery or performance of this Business Combination
Agreement by such Partner or Stockholder or result in any penalty,
forfeiture, Agreement termination, or restriction on business
operations of InterCel or Powertel as a result of the execution,
delivery or performance of this Business Combination Agreement.
The Powertel Disclosure Schedule lists all such Agreements and Laws
that reasonably could be interpreted or expected to require the
consent or acquiescence of any person or entity not party to this
Business Combination Agreement with respect to any aspect of the
execution, delivery or performance of this Business Combination
Agreement or any transaction otherwise resulting from or related
hereto by such Partner or Stockholder, and sets forth the name(s)
of the person or entity required to provide such consent or
acquiescence.
5.4. Binding Obligation
This Business Combination Agreement constitutes a valid
and binding obligation of such Partner or Stockholder, enforceable
in accordance with its terms. Each Document to be executed by such
Partner or Stockholder pursuant hereto, when executed and delivered
in accordance with the provisions hereof, will be a valid and
binding obligation of such Partner or Stockholder, enforceable in
accordance with its terms.
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5.5. Transfer of Title
At the Effective Time, InterCel will acquire good,
valid and marketable title to, as applicable, the Partnership
Interest set forth on Exhibit A opposite the name of the Partner
making this representation, or to the Common Stock set forth on
Exhibit B opposite the name of the Stockholder making this
representation, free and clear of all Encumbrances.
5.6. Private Placement of Securities
Each Partner listed on Exhibit A and each Stockholder
understands that the InterCel Common Stock to be received by it
in exchange for its Partnership Interests or Common Stock,
respectively, is intended to be exempt from registration under
the Securities Act, by virtue of Section 4(2) of the Securities
Act and other exemptions under such Act and, in accordance
therewith and in furtherance thereof, it represents and warrants
to and agrees with InterCel as follows:
5.6.1. Review of Documents
All documents, records and books pertaining to this
Business Combination and the exchange of InterCel Common Stock
for Partnership Interests or Common Stock requested by such
Partner or Stockholder, respectively, and a copy of certain
disclosure materials, have been made available for inspection by
such Partner or Stockholder, and its advisers (if any).
5.6.2. Opportunity to Request Information
Such Partner or Stockholder and/or its advisers (if
any) have had a reasonable opportunity to ask questions of and
receive information and answers from a person or persons acting
on behalf of InterCel concerning the exchange of InterCel Common
Stock for Partnership Interests or Common Stock, and all such
questions have been answered and all such information has been
provided to its full satisfaction. In making its investment,
such Partner or Stockholder, will be relying solely on its review
of the documents made available for inspection and the answers to
questions referred to in this Section 5.6.2.
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5.6.3. No Reliance on Advertisement
Such Partner or Stockholder is not exchanging its
Partnership Interest or shares of Common Stock, respectively, for
InterCel Common Stock as a result of or subsequent to any
advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over
television or radio.
5.6.4. Experience in Financial and Business
Matters
Such Partner or Stockholder has such knowledge and
experience in financial, tax and business matters so as to enable
it to utilize the information made available to it in connection
with the Business Combination in order to evaluate the merits and
risks of an investment in InterCel Common Stock and to make an
informed investment decision with respect thereto, and is not
relying upon the advice of a purchaser representative in making a
final investment decision to invest in InterCel Common Stock.
5.6.5. Acquisition for Investment
Such Partner or Stockholder is acquiring InterCel
Common Stock solely for its own account as principal, for
investment purposes only and not with a view to the resale or
distribution thereof, in whole or in part, in violation of
applicable securities laws, and no other person (other than
persons holding ownership interests in such Partner or
Stockholder) has a direct or indirect beneficial interest in such
InterCel Common Stock to be acquired by such Partner or
Stockholder.
5.6.6. No Resale or Transfer
Such Partner or Stockholder will not sell or otherwise
transfer the InterCel Common Stock to be acquired by it or any
portion thereof without registration under the Securities Act or
an exemption therefrom. Such Partner or Stockholder fully
understands and agrees that it must and can bear the economic
risk of its purchase for an indefinite period of time because,
among other reasons, the shares of InterCel Common Stock to be
acquired by such Partner or Stockholder have not been registered
under the Securities Act or under the securities laws of certain
states and, therefore, cannot be resold, pledged, assigned or
otherwise disposed of unless they are subsequently registered
under the Securities Act and under the applicable securities laws
of such states or unless an exemption from such registration is
available. Such Partner or Stockholder further understands that,
except as set forth in Section 12 hereof, InterCel is under no
obligation to register the shares of InterCel Common Stock to be
issued in exchange for Partnership Interests or Common Stock on
its behalf or to assist it in complying with any exemption from
registration.
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5.6.7. Recognition of Certain Risks
Such Partner or Stockholder recognizes that an
investment in InterCel Common Stock involves a number of
significant risks, including the risk that no federal or state
agency has passed upon this offering of InterCel Common Stock or
made any finding or determination as to the fairness of this
investment.
5.6.8. Eligibility for Investment in InterCel
Common Stock
Such Partner or Stockholder, each person that directly
or indirectly owns an equity interest in such Partner or
Stockholder, and any Affiliate of such Partner or Stockholder
that is either (a) entitled to vote directly or indirectly on
this Business Combination Agreement and the transactions
contemplated hereby or (b) that will receive any InterCel Common
Stock as a result of the Business Combination is an "accredited
investor" under Securities Act Rule 501, with such knowledge and
experience in financial and business matters that it is capable
of evaluating the merits and risks of investment in InterCel
Common Stock.
5.7. Information Regarding Certain Partners
Each Partner listed on Exhibit B and each Stockholder
of such Partner represents and warrants to InterCel as follows:
5.7.1. Organization and Standing
Such Partner is a corporation duly organized, validly
existing and in good standing under the laws of its state of
incorporation. Such Partner has the full and unrestricted
corporate power and authority to own the Partnership Interest set
forth opposite the name of such Partner on Exhibit B. Such
Partner is not qualified to conduct business in any other
jurisdiction, and neither the nature of the business conducted by
such Partner nor the character of the Assets owned, leased or
otherwise held by it makes any such qualification necessary
except for such jurisdictions wherein the absence of licensing or
qualification as a foreign corporation would not have a material
adverse effect upon the business of such Partner as currently
conducted.
5.7.2. Subsidiaries
Such Partner has no Subsidiaries and no equity
investment or other interest in, nor has such Partner made
advances or loans to, any corporation, association, partnership,
joint venture or other entity.
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5.7.3. Certificate or Articles of Incorporation
and Bylaws
Such Partner has Furnished to InterCel a true and
complete copy of the certificate or articles of incorporation of
such Partner, as currently in effect, certified as of a recent
date by the Secretary of State (or comparable governmental
authority) of its jurisdiction of incorporation, and a true and
complete copy of the bylaws of such Partner, as currently in
effect, certified by its corporate secretary. Such certified
copies are attached as exhibits to, and part of, the Powertel
Disclosure Schedule.
5.7.4. Capitalization
The authorized capital stock of such Partner consists
of the aggregate number of shares of Common Stock set forth
opposite the name of such Partner on Exhibit B, all of which are
duly authorized and validly issued and outstanding, fully paid
and nonassessable. No shares of capital stock of such Partner
have been reserved for any purpose. There are no outstanding
securities convertible into or exchangeable for Common Stock and
no outstanding options, rights (preemptive or otherwise), or
warrants to purchase or to subscribe for any shares of such stock
or other securities of such Partner. There are no outstanding
Agreements affecting or relating to the voting, issuance,
purchase, redemption, repurchase or transfer of such Partner's
Common Stock or any other securities of such Partner, except as
contemplated hereunder.
5.7.5. Financial Statements
Such Partner has prepared and Furnished to InterCel
and there are included as exhibits that are part of the Powertel
Disclosure Schedule, the audited balance sheets of such Partner
as of the end of the fiscal year ending in each of 1990, 1991,
1992, 1993, and 1994 (or such shorter period as such Partner has
been in existence), and the audited statements of income,
stockholders' equity and changes in financial position for each
of such fiscal years, as applicable, each accompanied by the
related report of such Partner's independent certified public
accountants; provided, however, that unaudited statements may be
provided to the extent audited statements are not reasonably
available. Such Partner also has prepared and Furnished to
InterCel, within 45 days after the end of any quarter referenced
in this Section 5.7.5, and there are included as exhibits that
are part of the Powertel Disclosure Schedule, the unaudited
balance sheets of such Partner as of the end of each quarter of
such Partner ending after December 31, 1994, and the unaudited
statements of income, stockholders' equity and changes in
financial position for the quarter then ended. All of the
financial statements, including, without limitation, the notes
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thereto, referred to in this Section 5.7.5 or Furnished to
InterCel after the date hereof pursuant to this Business
Combination Agreement: (a) are in accordance with the books and
records of such Partner, (b) present fairly the financial
position of such Partner as of the respective dates and the
results of operations and changes in financial position for the
respective periods indicated, and (c) have been prepared in
accordance with generally accepted accounting principles applied
on a basis consistent with prior accounting periods, except in
the case of interim financial statements for normal year-end
adjustments and the absence of footnote disclosures. The
Powertel Disclosure Schedule sets forth all changes in accounting
methods (for financial accounting purposes) at any time made,
agreed to, requested or required with respect to such Partner.
5.7.6. No Liabilities
Except as reflected in the financial statements
Furnished pursuant to this Business Combination Agreement or as
set forth in the Powertel Disclosure Schedule, there exist no
liabilities (whether contingent or absolute, matured or
unmatured, known or unknown) of such Partner, other than
liabilities of Powertel. Since December 31, 1994, such Partner
has not incurred any liabilities (whether contingent or absolute,
matured or unmatured, known or unknown) that are not reflected on
such financial statements, other than liabilities of Powertel.
5.7.7. Taxes
5.7.7.1. Filed Returns
Such Partner has (or, in the case of returns
becoming due after the date hereof and on or before the Effective
Time, will have prior to the Effective Time) duly filed all
Partner Tax Returns required to be filed by such Partner on or
before the Closing Date with respect to all applicable Taxes. No
penalties or other charges are or will become due with respect to
any of the Partner Tax Returns as the result of the late filing
thereof. All of the Partner Tax Returns are (or, in the case of
returns becoming due after the date hereof and on or before the
Closing Date, will be) true and complete in all respects. Such
Partner: (a) has paid all Taxes due or claimed to be due by any
Taxing authority in connection with any of the Partner Tax
Returns (without regard to whether or not such Taxes are shown as
due on such Partner Tax Returns); or (b) has established (or, in
the case of amounts becoming due after the date hereof, prior to
the Closing Date will have paid or established) in financial
statements provided to InterCel pursuant to this Business
Combination Agreement adequate reserves (in conformity with
generally accepted accounting principles consistently applied)
for the payment of such Taxes.
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5.7.7.2. Tax Liability
Such Partner, either in its own right or as a
transferee, has or on the Closing Date will have no liability for
Taxes payable for or with respect to any periods prior to and
including the Closing Date in excess of the amounts actually paid
prior to the Closing Date or reserved for in financial statements
Furnished to InterCel pursuant to this Business Combination
Agreement.
5.7.7.3. Tax Audits
There is no action, suit, proceeding, audit,
investigation or claim pending or, to the knowledge of such
Partner or Stockholder, threatened in respect of any Taxes for
which such Partner is or may become liable, nor has any
deficiency or claim for any such Taxes been proposed, asserted
or, to the knowledge of such Partner or Stockholder, threatened.
Such Partner has not consented to any waivers or extensions of
any statute of limitations with respect to any taxable year of
such Partner. There is no Agreement, waiver or consent providing
for an extension of time with respect to the assessment or
collection of any Taxes against such Partner, and no power of
attorney granted by such Partner with respect to any tax matters
is currently in force.
5.7.7.4. Tax Returns
Such Partner has Furnished to InterCel true
and complete copies of all Partner Tax Returns and all written
communications relating to any such Partner Tax Returns or to any
deficiency or claim proposed and/or asserted, irrespective of the
outcome of such matter, but only to the extent such items relate
to tax years (a) that are subject to an audit, investigation,
examination or other proceeding or (b) with respect to which the
statute of limitations has not expired.
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5.7.7.5. Miscellaneous
Such Partner (a) is not and never has been a
partner in a partnership or an owner of an interest in an entity
treated as a partnership for federal income tax purposes other
than Powertel; (b) is not subject to Section 999 of the Code; and
(c) is not a party to an Agreement relating to the sharing,
allocation or payment of, or indemnity for, Taxes.
5.7.8. Assets and Activities
Such Partner holds no Assets other than the
Partnership Interests and conducts no activities other than the
holding of the Partnership Interests.
5.7.9. Books and Records
The books of account, stock records, minute books and
other records of such Partner are true and complete and have been
maintained in accordance with good business practices, and the
matters contained therein are appropriately and accurately
reflected in the financial statements of such Partner Furnished
to InterCel pursuant to this Business Combination Agreement.
5.7.10. Litigation
There are no actions, suits, claims, arbitrations,
proceedings or investigations pending, threatened or reasonably
anticipated against, affecting or involving such Partner or its
Assets, or the transactions contemplated by this Business
Combination Agreement, at law or in equity or admiralty, or
before or by any court, arbitrator or governmental authority,
domestic or foreign. Such Partner is not operating under,
subject to or in default with respect to any order, award, writ,
injunction, decree or judgment of any court, arbitrator or
governmental authority.
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6. REPRESENTATIONS AND WARRANTIES OF INTERCEL
Except as specifically set forth in the InterCel
Disclosure Schedule (with a disclosure with respect to a Section of
this Business Combination Agreement to require a specific reference
in the InterCel Disclosure Schedule to the Section of this Business
Combination Agreement to which each such disclosure applies, and no
disclosure to be deemed to apply with respect to any Section to
which it does not expressly apply), InterCel represents and
warrants (which representations and warranties shall be deemed to
include the disclosure with respect thereto so specified in the
InterCel Disclosure Schedule) to Powertel, the Partners and the
Stockholders and agrees with Powertel, the Partners and the
Stockholders as follows:
6.1. Organization and Standing
InterCel is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. InterCel has the full and unrestricted corporate power
and authority to own, operate and lease its Assets, to carry on its
business as currently conducted, to execute and deliver this
Business Combination Agreement and to carry out the transactions
contemplated hereby. InterCel is duly qualified to conduct
business as a foreign corporation and is in good standing in the
states, countries and territories listed on the InterCel Disclosure
Schedule. InterCel is not qualified to conduct business in any
other jurisdiction, and neither the nature of the business
conducted by InterCel nor the character of the Assets owned, leased
or otherwise held by it makes any such qualification necessary.
There is no state, country or territory wherein the absence of
licensing or qualification as a foreign corporation would have a
material adverse effect upon the business of InterCel as currently
conducted.
6.2. Subsidiaries
InterCel has no Subsidiaries and no equity investment or
other interest in, nor has InterCel made advances or loans to, any
corporation, association, partnership, joint venture or other
entity, except as set forth in the InterCel Disclosure Schedule.
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6.3. Certificate of Incorporation and Bylaws
InterCel has Furnished to the Partners a true and
complete copy of the certificate of incorporation of InterCel, as
currently in effect, and a true and complete copy of the bylaws of
InterCel, including all amendments thereto, as currently in effect.
6.4. Capitalization
The authorized capital stock of InterCel consists of
shares of InterCel Common Stock, of which 9,947,822 shares were
duly authorized and validly issued, fully paid and nonassessable as
of June 30, 1995, and Preferred Stock, of which no shares are
outstanding as of the date hereof. Except as set forth on the
InterCel Disclosure Schedule, no shares of capital stock of
InterCel have been reserved for any purpose. Except as set forth
on the InterCel Disclosure Schedule, there are no outstanding
securities convertible into or exchangeable for InterCel Common
Stock and no outstanding options, rights (preemptive or otherwise),
or warrants to purchase or to subscribe for any shares of InterCel
Common Stock or other securities of InterCel. Except as set forth
on the InterCel Disclosure Schedule, there are no outstanding
Agreements affecting or relating to the voting, issuance, purchase,
redemption, repurchase or transfer of shares of InterCel Common
Stock or any other securities of InterCel, except as contemplated
hereunder.
6.5. Financial Statements
InterCel has prepared and Furnished to the Partners and
there are included as exhibits that are part of the InterCel
Disclosure Schedule, the audited balance sheets of InterCel as of
the end of the fiscal year ending in each of 1990, 1991, 1992,
1993, and 1994, and the audited statements of income, stockholders'
equity and changes in financial position for such fiscal years,
accompanied by the related report of Arthur Andersen LLP,
independent certified public accountants. InterCel also has
prepared and Furnished to the Partners, within 45 days after the
end of any quarter referenced in this Section 6.5, and there are
included as exhibits that are part of the InterCel Disclosure
Schedule, the unaudited balance sheets of InterCel as of the end of
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each quarter of InterCel ending after December 31, 1994, and the
unaudited statements of income, stockholders' equity and changes in
financial position for the quarter then ended. All of the
financial statements, including, without limitation, the notes
thereto, referred to in this Section 6.5 or Furnished to the
Partners after the date hereof pursuant to this Business
Combination Agreement: (a) are in accordance with the books and
records of InterCel; (b) present fairly the financial position of
InterCel as of the respective dates and the results of operations
and changes in financial position for the respective periods
indicated; and (c) have been prepared in accordance with generally
accepted accounting principles applied on a basis consistent with
prior accounting periods. The InterCel Disclosure Schedule sets
forth all changes in accounting methods (for financial accounting
purposes) at any time made, agreed to, requested or required with
respect to InterCel.
6.6. Reports and Records
All returns, reports and statements relating to the
Assets of InterCel currently required to be filed by InterCel with
any Regulatory Authority have been filed and complied with and are
true, correct and complete in all material respects. All such
returns, reports and statements shall continue to be filed on a
current basis until the Closing Date, and will be true, correct and
complete in all material respects. All logs and business records
of every type and nature relating to the business and operations of
InterCel and the InterCel Licenses and other records pertaining to
the business and operations of InterCel have been maintained in all
material respects in accordance with good business practices and
the rules of the Federal Communications Commission.
6.7. InterCel Licenses
InterCel holds all the InterCel Licenses, all of which
are described in the InterCel Disclosure Schedule, that are
necessary or desirable, and such InterCel Licenses constitute all
authority from any and all governmental authorities and Regulatory
Authorities that are necessary or desirable, to carry on the
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business and operations of InterCel as currently conducted. The
InterCel Licenses are valid and in full force and effect through
the respective dates indicated in the InterCel Disclosure Schedule;
no notice of cancellation, default or dispute has been received by
or is known to InterCel; and there are no orders, complaints,
proceedings or investigations, pending or, so far as InterCel
knows, threatened, that would affect the validity of the InterCel
Licenses. Except as indicated in the InterCel Disclosure Schedule,
there is no material violation relating to the InterCel Licenses or
any of the Assets of InterCel of any rules and regulations of any
Regulatory Authority, and InterCel is in compliance in all material
respects with the terms and conditions of the InterCel Licenses.
If notice of any such violation is received or if InterCel
hereafter becomes aware of any such violation, InterCel shall
promptly notify the Partners, and InterCel at its own expense shall
cure all such violations prior to the Closing.
6.8. Taxes
6.8.1 Filed Returns
InterCel has (or, in the case of returns becoming
due after the date hereof and on or before the Effective Time, will
have prior to the Effective Time) duly filed all InterCel Tax
Returns required to be filed by InterCel on or before the Closing
Date with respect to all applicable Taxes. No penalties or other
charges are or will become due with respect to any of the InterCel
Tax Returns as the result of the late filing thereof. Except as
set forth in the InterCel Disclosure Schedule, all of the InterCel
Tax Returns are (or, in the case of returns becoming due after the
date hereof and on or before the Closing Date, will be) true and
complete in all respects. InterCel: (i) has paid all Taxes due or
claimed to be due by any Taxing authority in connection with any of
the InterCel Tax Returns (without regard to whether or not such
Taxes are shown as due on such InterCel Tax Returns); or (ii) has
established (or, in the case of amounts becoming due after the date
hereof, prior to the Closing Date will have paid or established) in
financial statements provided to the Partners pursuant to this
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Business Combination Agreement adequate reserves (in conformity
with generally accepted accounting principles consistently applied)
for the payment of such Taxes.
6.8.2. Tax Liability
InterCel, either in its own right or as a
transferee, has or on the Closing Date will have no liability for
Taxes payable for or with respect to any periods prior to and
including the Closing Date in excess of the amounts actually paid
prior to the Closing Date or reserved for in financial statements
Furnished to the Partners pursuant to this Business Combination
Agreement.
6.8.3. Tax Audits
Except as set forth on the InterCel Disclosure
Schedule, there is no action, suit, proceeding, audit,
investigation or claim pending or, to the knowledge of InterCel,
threatened in respect of any Taxes for which InterCel is or may
become liable, nor has any deficiency or claim for any such Taxes
been proposed, asserted or, to the knowledge of InterCel,
threatened. InterCel has not consented to any waivers or
extensions of any statute of limitations with respect to any
taxable year of InterCel. Except as set forth on the InterCel
Disclosure Schedule, there is no Agreement, waiver or consent
providing for an extension of time with respect to the assessment
or collection of any Taxes against InterCel, and no power of
attorney granted by InterCel with respect to any tax matters is
currently in force.
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6.8.4. Tax Returns
InterCel has Furnished to the Partners true and
complete copies of all InterCel Tax Returns and all written
communications relating to any such InterCel Tax Returns or to any
deficiency or claim proposed and/or asserted, irrespective of the
outcome of such matter, but only to the extent such items relate to
tax years (a) that are subject to an audit, investigation,
examination or other proceeding, or (b) with respect to which the
statute of limitations has not expired.
6.8.5. Miscellaneous
Except as set forth on the InterCel Disclosure
Schedule, InterCel (a) is not and has never been a partner in a
partnership or an owner of an interest in an entity treated as a
partnership for federal income tax purposes; (b) is not subject to
Section 999 of the Code; and (c) is not a party to an Agreement
relating to the sharing, allocation or payment of, or indemnity
for, Taxes.
6.9. Restrictions and Consents
There are no Agreements, Laws or other restrictions of
any kind to which InterCel (or any Asset thereof) is party or
subject that would prevent or restrict the execution, delivery or
performance of this Business Combination Agreement or result in any
penalty, forfeiture, Agreement termination, or restriction on
business operations of InterCel or Powertel as a result of the
execution, delivery or performance of this Business Combination
Agreement. The InterCel Disclosure Schedule lists all such
Agreements and Laws that reasonably could be interpreted or
expected to require the consent or acquiescence of any person or
entity not party to this Business Combination Agreement with
respect to any aspect of the execution, delivery or performance of
this Business Combination Agreement or any transaction otherwise
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resulting from or related hereto by InterCel, and sets forth the
name(s) of the person or entity required to provide such consent or
acquiescence.
6.10. Authorization
The execution, delivery and performance by InterCel of
this Business Combination Agreement and all other Documents
contemplated hereby, the fulfillment of and compliance with the
respective terms and provisions hereof and thereof, and the
consummation by InterCel of the transactions contemplated hereby
and thereby or related hereto or thereto, do not and will not: (a)
require any consent or approval of InterCel or Affiliates thereof
that has not been obtained prior to the execution of this Business
Combination Agreement by InterCel, except for approval by the
stockholders of InterCel of all actions requiring stockholder
approval which are required or necessary in connection with the
consummation of this Business Combination Agreement and the
transactions contemplated thereby, and all such required consents
or approvals are set forth in the InterCel Disclosure Schedule and
are final and in full force and effect on the date hereof (other
than such stockholder approval and as set forth in the InterCel
Disclosure Schedule); (b) conflict with, or violate any provision
of, any Law having applicability to InterCel or any of its Assets,
or any provision of the certificate of incorporation or bylaws of
InterCel; (c) conflict with, or result in any breach of, or
constitute a default under any Agreement to which InterCel is a
party or by which InterCel or any of its Assets may be bound; or
(d) result in or require the creation or imposition of or result in
the acceleration of any indebtedness, or of any Encumbrance of any
nature upon, or with respect to, InterCel or any of the Assets now
owned or hereafter acquired by InterCel.
6.11. Absence of Violation
InterCel is not in violation of or default under, nor has
it breached, any term or provision of its certificate of
incorporation or bylaws, or any Agreement or restriction to which
InterCel is a party or by which InterCel or any Asset thereof is
bound or affected. InterCel has complied in all material respects
and is in compliance in all material respects with all Laws.
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Neither InterCel, nor any of its officers, employees or agents (or
distributors, representatives or other persons acting on the
express, implied or apparent authority of InterCel) have paid,
given or received or have offered or promised to pay, give or
receive, any bribe or other unlawful, questionable or unusual
payment of money or other thing of value, any extraordinary
discount, or any other unlawful or unusual inducement, to or from
any person, business association or governmental official or entity
in the United States or elsewhere in connection with or in
furtherance of the business of InterCel (including, without
limitation, any offer, payment or promise to pay money or other
thing of value (i) to any foreign official or political party (or
official thereof) for the purposes of influencing any act, decision
or omission in order to assist InterCel in obtaining business for
or with, or directing business to, any person, or (ii) to any
person, while knowing that all or a portion of such money or other
thing of value will be offered, given or promised to any such
official or party for such purposes). The business of InterCel is
not in any manner dependent upon the making or receipt of such
payments, discounts or other inducements.
6.12. Binding Obligation
This Business Combination Agreement constitutes a valid
and binding obligation of InterCel, enforceable in accordance with
its terms; and each Document to be executed by InterCel pursuant
hereto, when executed and delivered in accordance with the
provisions hereof, shall be a valid and binding obligation of
InterCel, enforceable in accordance with its terms.
6.13. No Registration Under the Securities Act
InterCel understands that the Partnership Interests and
the shares of Common Stock to be acquired by it under this Business
Combination Agreement have not been registered under the Securities
Act, in reliance upon exemptions contained in the Securities Act or
interpretations thereof, and cannot be offered for sale, sold or
otherwise transferred unless such Partnership Interests and the
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shares of Common Stock being acquired hereunder subsequently are so
registered or qualify for exemption from registration under the
Securities Act.
6.14. Acquisition for Investment
The Partnership Interests and the shares of Common Stock
are being acquired under this Business Combination Agreement by
InterCel in good faith solely for its own account, for investment
and not with a view toward resale or other distribution within the
meaning of the Securities Act. The Partnership Interests and the
shares of Common Stock will not be offered for sale, sold or
otherwise transferred by InterCel without either registration or
exemption from registration under the Securities Act.
6.15. Evaluation of Merits and Risks of Investment
InterCel has such knowledge and experience in financial
and business matters that InterCel is capable of evaluating the
merits and risks of InterCel's investment in the Partnership
Interests and the shares of Common Stock being acquired hereunder.
InterCel understands and is able to bear any economic risks
associated with such investment (including, without limitation, the
necessity of holding such Partnership Interests and shares of
Common Stock for an indefinite period of time, inasmuch as such
Partnership Interests and shares of Common Stock have not been
registered under the Securities Act).
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7. CONDITIONS PRECEDENT TO OBLIGATIONS OF POWERTEL, THE
PARTNERS AND THE STOCKHOLDERS
The obligations of Powertel, the Partners and the
Stockholders under this Business Combination Agreement are subject
to the fulfillment, at or prior to the Closing, of each of the
following conditions, and failure to satisfy any such condition
shall excuse and discharge all obligations of Powertel, the
Partners and the Stockholders to carry out the provisions of this
Business Combination Agreement, unless such failure is agreed to in
writing by all the Partners of Powertel:
7.1. Representations and Warranties
The representations and warranties made by InterCel in
this Business Combination Agreement or in any Document Furnished by
InterCel pursuant to this Business Combination Agreement shall be
true and complete in all material respects when made and on and as
of the Closing Date as though such representations and warranties
were made on and as of such date, except for any changes expressly
permitted by this Business Combination Agreement.
7.2. Performance
InterCel shall have performed and complied with all
Agreements and conditions required by this Business Combination
Agreement to be performed or complied with by InterCel prior to the
Closing Date.
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7.3. Legal Proceedings
No action or proceeding by or before any governmental
authority shall have been instituted or threatened (and not
subsequently dismissed, settled or otherwise terminated) that is
reasonably expected to restrain, prohibit or invalidate the
transactions contemplated by this Business Combination Agreement,
other than an action or proceeding instituted or threatened by
Powertel, any Partner or any Stockholder.
7.4. Consents
Powertel, the Partners and the Stockholders shall have
received all consents, authorizations, and approvals of
governmental, supragovernmental and private parties that are
required to be obtained in order to consummate the transactions
contemplated hereby, including, without limitation, the expiration
or termination of any applicable waiting periods under Hart-Scott-
Rodino and the consent of the Federal Communications Commission.
All such consents, authorizations, and approvals shall have been
duly obtained and shall be in full force and effect on the Closing
Date.
7.5. InterCel's Certificate
InterCel shall have delivered to Powertel, the Partners
and the Stockholders a certificate, dated as of the Closing Date
and executed by a senior officer of InterCel, certifying to the
fulfillment of the conditions set forth in Sections 7.1 through
7.4.
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7.6. Opinion of InterCel's Counsel
Powertel shall have received an opinion of Hogan &
Hartson L.L.P., counsel to InterCel, dated as of the Closing Date,
to the effect and substantially in the form of Exhibit D.
7.7. Documents at Closing
All Documents required to be Furnished by InterCel to
Powertel, the Partners and/or the Stockholders prior to or at the
Closing shall have been so Furnished.
7.8. Financing
Prior to or simultaneously with the Closing, InterCel
shall have raised at least Two Hundred Million Dollars in offerings
of InterCel Common Stock and/or debt obligations.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF INTERCEL
The obligations of InterCel under this Business
Combination Agreement are subject to the fulfillment, at or prior
to the Closing, of each of the following conditions, and failure to
satisfy any such condition shall excuse and discharge all
obligations of InterCel to carry out the provisions of this
Business Combination Agreement, unless such failure is agreed to in
writing by InterCel:
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8.1. Representations and Warranties
The representations and warranties made (jointly or
individually) by Powertel, the Partners and the Stockholders in
this Business Combination Agreement and the statements contained in
the Powertel Disclosure Schedule and Exhibits attached hereto or in
any Document Furnished by Powertel, the Partners or the
Stockholders pursuant to this Business Combination Agreement shall
be true and complete in all material respects when made, and on and
as of the Closing Date as though such representations and
warranties were made on and as of such date, except for any changes
expressly permitted by this Business Combination Agreement.
8.2. Performance
Powertel, each Partner and each Stockholder shall have
performed and complied with all Agreements and conditions required
by this Business Combination Agreement to be performed or complied
with prior to the Closing Date.
8.3. Absence of Adverse Changes
There shall have been no material adverse changes since
December 31, 1994 in the business, operations, condition (financial
or otherwise), Assets or liabilities of Powertel (regardless of
whether or not such events or changes are inconsistent with the
representations and warranties given herein by Powertel, the
Partners and the Stockholders), except changes contemplated by this
Business Combination Agreement.
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8.4. Legal Proceedings
No action or proceeding by or before any governmental
authority shall have been instituted or threatened (and not
subsequently settled, dismissed or otherwise terminated) which is
reasonably expected to restrain, prohibit or invalidate the
transactions contemplated by this Business Combination Agreement
other than an action or proceeding instituted or threatened by
InterCel.
8.5. Partners' and Stockholders' Certificate
Each of the Partners and Stockholders shall have
delivered to InterCel a certificate, dated as of the Closing Date
and executed by such Partner or Stockholder, respectively,
certifying to the fulfillment of the conditions specified in
Sections 8.1 through 8.4.
8.6. Opinion of Partners' Counsel
InterCel shall have received the opinions of counsel to
each of the Partners listed on Exhibit A or Exhibit B, dated as of
the Closing Date, to the effect and substantially in the form of
Exhibit E or Exhibit F, respectively.
8.7. Financing
Prior to or simultaneously with the Closing, InterCel
shall have raised at least Two Hundred Million Dollars in offerings
of InterCel Common Stock and/or debt obligations.
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8.8. Documents at Closing
All Documents required to be Furnished by Powertel, the
Partners and/or the Stockholders to InterCel prior to or at the
Closing shall have been so Furnished.
8.9. Consents
InterCel shall have received all consents, authorizations
and approvals of governmental, supragovernmental and private
parties that are required to be obtained in order to consummate the
transactions contemplated hereby, including, without limitation,
the expiration or termination of any applicable waiting periods
under Hart-Scott-Rodino and the consent of the Federal
Communications Commission. All such consents, authorizations and
approvals shall have been duly obtained and shall be in full force
and effect on the Closing Date.
8.10. Stockholders' Approval
The stockholders of InterCel shall have voted to
approve all actions requiring stockholder approval which are
required or necessary in connection with the consummation of this
Business Combination Agreement and the transactions contemplated
hereby.
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9. CLOSING
9.1. Closing of Sale and Business Combination
Subject to the terms and conditions of this Business
Combination Agreement, the Closing shall take place on the Closing
Date.
9.2. Deliveries by the Stockholders
At the Closing, the Stockholders shall deliver to
InterCel the following:
(a) certificates representing the shares of
Common Stock being acquired by InterCel, duly endorsed in blank by
the appropriate Stockholder to InterCel or with duly executed stock
powers attached; and
(b) such other documents as InterCel may
reasonably request.
9.3. Deliveries by the Partners
At the Closing, the Partners shall deliver to InterCel
the following:
(a) duly executed assignment agreements
substantially in the form of Exhibit H from each of the Partners
listed on Exhibit A with respect to the Partnership Interests set
forth on Exhibit A opposite the name of such Partner;
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(b) opinions of counsel to each of the Partners
listed on Exhibit A or Exhibit B, dated as of the Closing Date, to
the effect and substantially in the form of Exhibit E or Exhibit F,
respectively;
(c) written resignations of all of the current
members of the Board of Directors of the Partners listed on Exhibit
B (effective as of the Closing Date);
(d) the certificate or articles of
incorporation, bylaws, minute books and stock books of the Partners
listed on Exhibit B and all other books and records of such Partner
reasonably requested by InterCel; and
(e) such other Documents as InterCel may
reasonably request.
9.4. Deliveries by Powertel
At the Closing, Powertel shall deliver to InterCel the
following:
(a) a certified copy of the resolutions adopted
by the Partners Committee of Powertel authorizing the transactions
contemplated by this Business Combination Agreement;
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(b) the certificate of limited partnership,
limited partnership agreement and all amendments thereto and all
other books and records reasonably requested by InterCel; and
(c) such other Documents as InterCel may
reasonably request.
9.5. Deliveries by InterCel
At the Closing, InterCel shall deliver the following:
(a) to each Partner listed on Exhibit A,
certificates representing the number of shares of InterCel Common
Stock set forth opposite the name of such Partner in the column on
Exhibit A entitled "Shares of InterCel Common Stock to be
Received";
(b) to each Stockholder listed on Exhibit B,
certificates representing the number of shares of InterCel Common
Stock set forth opposite the name of such Stockholder in the column
on Exhibit B entitled "Shares of InterCel Common Stock to be
Received";
(c) to Powertel and the Partners, an opinion of
Hogan & Hartson L.L.P., dated as of the Closing Date, to the effect
and substantially in the form of Exhibit D; and
(d) such other Documents as Powertel, the
Partners or the Stockholders may reasonably request.
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10. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION; REMEDIES
10.1. Survival of Representations
All representations, warranties, covenants, indemnities
and other Agreements made by any party to this Business Combination
Agreement herein or pursuant hereto shall also be deemed made on
and as of the Closing Date as though such representations,
warranties, covenants, indemnities and other Agreements were made
on and as of such date, and all such representations, warranties,
covenants, indemnities and other Agreements shall survive the
Closing and any investigation, audit or inspection at any time made
by or on behalf of any party hereto.
10.2. Agreement of Powertel and Each Partner and
Each Stockholder to Indemnify
(a) Subject to the conditions and
provisions of this Section 10, Powertel hereby agrees to indemnify,
defend and hold harmless the InterCel Indemnified Persons from and
against and in any respect of all Claims asserted against,
resulting to, imposed upon or incurred by the InterCel Indemnified
Persons (whether such Claims are by, against or relate to Powertel,
the Partners, the Stockholders or any other party, including a
governmental entity), directly or indirectly, by reason of or
resulting from any misrepresentation or breach of any
representation or warranty, or noncompliance with any conditions or
other Agreements, given or made by Powertel, any Partner or any
Stockholder in this Business Combination Agreement or in the
Powertel Disclosure Schedule or Exhibits attached hereto or in any
Document Furnished by or on behalf of Powertel, any Partner or any
Stockholder pursuant to this Business Combination Agreement.
Notwithstanding the foregoing, Powertel shall have no liability for
Claims made more than one year following the Closing Date.
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(b) Subject to the conditions and
provisions of this Section 10, each Partner listed on Exhibit A and
each Stockholder hereby agrees to indemnify, defend and hold
harmless the InterCel Indemnified Persons from and against and in
respect of all Claims asserted against, resulting to, imposed upon
or incurred by the InterCel Indemnified Persons (whether such
Claims are by, against or relate to Powertel, the Partners, the
Stockholders or any other party, including, without limitation, a
governmental entity), directly or indirectly, by reason of or
resulting from any misrepresentation or breach of any
representation or warranty, or noncompliance with conditions or
other Agreements, (i) given or made by any such Partner, any
Stockholder or Powertel in this Business Combination Agreement or
in the Powertel Disclosure Schedule or Exhibits attached hereto or
in any Document Furnished by or on behalf of any such Partner, any
Stockholder or Powertel pursuant to this Business Combination
Agreement, other than any representations, warranties, conditions
and agreements in Section 5 or in the Powertel Disclosure Schedule
(with respect to Section 5) and (ii) given or made by such Partner
or such Stockholder set forth in Section 5 or in the Powertel
Disclosure Schedule (with respect to Section 5) or in any Document
Furnished by or on behalf of such Partner or such Stockholder
pursuant to Section 5; provided, however, that the maximum
obligation of each Partner listed on Exhibit A and of each
Stockholder to indemnify the InterCel Indemnified Persons pursuant
to this Section 10.2(b) shall be limited to and in no event shall
exceed the value of the shares of InterCel Common Stock received by
such Partner or such Stockholder pursuant to this Business
Combination Agreement, with the value of each such share of
InterCel Common Stock being deemed for such purpose to be equal to
$13.875. Each Partner listed on Exhibit A and each Stockholder, at
its option, shall have the right to pay the amount of all such
Claims by means of the transfer to the InterCel Indemnified Persons
of that number of shares of InterCel Common Stock owned by such
Partner or such Stockholder having a value equal to the amount of
such Claims, with the value of each share of InterCel Common Stock
being deemed for such purpose to be equal to $13.875.
(c) Except as set forth below, it shall be a
condition to the right of any InterCel Indemnified Person to
indemnification pursuant to this Section 10.2 that such InterCel
Indemnified Person shall assert a Claim for such indemnification
within one year following the Closing Date. Notwithstanding the
foregoing, any Claim relating to any provision of Section 5.6 may
be made throughout the period ending one year following the
expiration of all applicable statutes of limitation (including
extensions).
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(d) Each of the Partners listed on Exhibit A and
the Stockholders hereby irrevocably waive, as of the Effective
Time, any and all right to recourse against Powertel with respect
to any representation, warranty, indemnity or other Agreement or
action made or taken by or pursuant to this Business Combination
Agreement. Such Partners and the Stockholders shall not be
entitled to contribution from, subrogation to or recovery against
Powertel with respect to any liability of such Partners or the
Stockholders that may arise under or pursuant to this Business
Combination Agreement or the transactions contemplated hereby.
Each of the Partners listed on Exhibit A and each of the
Stockholders hereby agrees (i) to contribute, in proportion to the
number of shares of InterCel Common Stock received by the Partners
listed on Exhibit A and the Stockholders pursuant to this Business
Combination Agreement, with respect to any liability of such
Partners or the Stockholders that may arise under or pursuant to
this Business Combination Agreement or the transactions
contemplated hereby, other than any liability arising from any
provision of Section 5 or in the Powertel Disclosure Schedule (with
respect to Section 5); and (ii) to the extent that such Partner or
Stockholder is a corporation, partnership, trust, or other entity,
that such Partner or Stockholder will not liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), or sell
or otherwise transfer or dispose of (in one transaction or a series
of transactions) all or substantially all of its business, property
or assets, during the year following the Closing Date unless
following such transaction or series of transactions, such Partner
or Stockholder remains in existence and continues to own the shares
of Intercel Common Stock received pursuant hereto and has no
material liabilities during the year following the Closing Date.
10.3. Agreement of InterCel to Indemnify
Subject to the conditions and provisions of this
Section 10, InterCel hereby agrees to indemnify, defend and hold
harmless the Powertel Indemnified Persons, each Partner and each
Stockholder from and against and in respect of all Claims asserted
against, resulting to, imposed upon or incurred by the Powertel
Indemnified Persons, such Partner or such Stockholder (whether such
Claims are by, against or relate to InterCel or any other party,
including, without limitation, a governmental entity), directly or
indirectly, by reason of or resulting from any misrepresentation or
breach of any representation or warranty, or noncompliance with any
conditions or other Agreements, given or made by InterCel in this
Business Combination Agreement or in the InterCel Disclosure
Schedule or Exhibits or in any Document Furnished by or on behalf
of InterCel pursuant to this Business Combination Agreement;
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provided, however, that the maximum obligation of InterCel to
indemnify the Powertel Indemnified Persons pursuant to this Section
10.3 shall be limited to and in no event shall exceed $134,398,939.
Notwithstanding the foregoing, InterCel shall have no liability for
Claims made more than one year following the Closing Date.
10.4. Conditions of Indemnification
The obligations and liabilities of Powertel, the
Partners, the Stockholders and InterCel hereunder with respect to
their respective indemnities pursuant to this Section 10, resulting
from any Claim shall be subject to the following terms and
conditions:
(a) The indemnified party shall give prompt
written notice to the indemnifying party of any Claim which is
asserted against, resulting to, imposed upon or incurred by such
indemnified party and which may give rise to liability of the
indemnifying party pursuant to this Section 10, stating (to the
extent known or reasonably anticipated) the nature and basis of
such Claim and the amount thereof.
(b) The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in
any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in
an action, the indemnified party shall have the right to employ
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separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties
that are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying
party shall not be liable for any settlement by an indemnified
party of any such claim, action, suit or proceeding effected
without its written consent, and an indemnifying party will not,
without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim, action, suit or
proceeding) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(c) No party shall have any liability under this
Section 10 unless and until the aggregate amount of all properly
asserted claims by the InterCel Indemnified Persons or the Powertel
Indemnified Persons, as applicable, exceeds $500,000, in which case
the applicable indemnifying parties shall be liable only for
properly asserted claims in excess of that amount; provided,
however, that the provisions of this Section 10.4(c) shall not be
applicable to the obligations of the Partners and Stockholders to
indemnify the InterCel Indemnified Persons pursuant to Section
10.2(b)(ii).
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10.5. Specific Performance
In addition to any other remedies that InterCel may have
at law or in equity, Powertel, each Partner and each Stockholder
hereby acknowledge that the Partnership Interests, the Common Stock
and Powertel are unique, and that the harm to InterCel resulting
from breaches by Powertel, any Partner or any Stockholder of its
respective obligations cannot be adequately compensated by damages.
Accordingly, Powertel, each Partner and each Stockholder agree that
InterCel shall have the right to have all obligations,
undertakings, Agreements, covenants and other provisions of this
Business Combination Agreement specifically performed by Powertel,
the Partners or the Stockholders, as the case may be, and that
InterCel shall have the right to obtain an order or decree of such
specific performance in any of the courts of the United States or
of any state or other political subdivision thereof.
10.6. Remedies Cumulative
The remedies provided herein shall be cumulative and
shall not preclude the assertion by Powertel, each Partner, each
Stockholder or InterCel of any other rights or the seeking of any
other remedies against the other, or their respective successors
or assigns.
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11. TERMINATION
11.1. Termination
This Business Combination Agreement may be terminated at
any time before the Closing Date by InterCel or Powertel, by
written notice of termination delivered to the other Company, if
any of the conditions to such Company's obligations set forth in
Section 7 or Section 8 (as applicable) have not been fulfilled by
December 31, 1995 and such failure to fulfill conditions is not the
result solely of the necessity of obtaining government approvals or
satisfying governmental requirements.
11.2. Effect of Termination
In the event this Business Combination Agreement is
terminated as provided in this Section 11, this Business
Combination Agreement shall forthwith become wholly void and of no
effect, and the parties shall be released from all future
obligations hereunder; provided, however, that the provisions of
Sections 3.1.2 and 13.3 relating to the payment of expenses, shall
not be extinguished but shall survive such termination. The
parties hereto shall have any and all remedies to enforce such
obligations provided at law or in equity (including, without
limitation, specific performance)
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12. REGISTRATION RIGHTS
12.1. Piggyback Registration Rights
12.1.1. Request
If at any time or times during the period
beginning one year and ending three years following the date hereof
InterCel proposes to sell InterCel Common Stock for its own account
in a registered public offering under the Securities Act, InterCel
shall, as soon as reasonably practicable prior to the proposed
filing date of the registration form, give written notice of the
proposed registration to each Partner listed on Exhibit A and each
Stockholder, as the case may be (a "Selling Holder"), and at the
written request of a Selling Holder delivered to InterCel within 15
days after the receipt of such notice, shall include in such
registration and offering, and in any underwriting of such
offering, all InterCel Common Stock held by such Selling Holder as
may have been designated in such Selling Holder's request.
Notwithstanding the foregoing, (i) InterCel shall not be required
to include in any such registered offering more than 50% of the
aggregate InterCel Common Stock held by all Selling Holders and
(ii) Selling Holders shall have no registration rights with respect
to any offering registered on Form S-8, Form S-4 or comparable
forms. In the event that Selling Holders shall have requested the
inclusion of more than 50% of the InterCel Common Stock in any such
offering, InterCel may include the InterCel Common Stock of the
Selling Holders making such requests in proportion to the InterCel
Common Stock so requested by each of them to be included in the
proposed registration.
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12.1.2. Pro Rata Reduction
If a registration in which any Selling Holder has
the right to participate pursuant to this Section 12.1 is an
underwritten primary registration on behalf of InterCel, and the
managing underwriters advise InterCel in writing that in their
opinion the number of shares of InterCel Common Stock requested by
Selling Holders to be included in such registration exceeds the
number that can be sold in such offering, InterCel shall include in
such registration (i) first, the InterCel Common Stock proposed to
be sold by InterCel, and (ii) second, the InterCel Common Stock
proposed to be sold by such Selling Holders and InterCel Common
Stock proposed to be sold by any other equity owners exercising
contractual registration rights in proportion to the number of
shares of InterCel Common Stock so requested by each of them to be
included.
12.2. Registration Procedures
InterCel shall have no obligation to include InterCel
Common Stock held by any Selling Holder in a registration statement
pursuant to Section 12.1 unless and until such Selling Holder shall
have furnished InterCel with all information and statements about
or pertaining to such Selling Holder in such reasonable detail and
on such timely basis as is reasonably deemed by InterCel to be
necessary or appropriate with respect to the preparation of the
registration statement. Whenever any Selling Holder has requested
that any InterCel Common Stock be included in a registration
statement pursuant to Section 12.1, InterCel shall, as
expeditiously as reasonably practicable:
(a) prepare and file with the
Securities and Exchange Commission a registration statement with
respect to such InterCel Common Stock and use reasonable efforts to
cause such registration statement to become effective as soon as
reasonably practicable thereafter;
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(b) prepare and file with the
Securities and Exchange Commission such amendments and supplements
to such registration statement and prospectus used in connection
therewith as may be necessary to keep such registration statement
effective for a period of not less than ninety days or until such
Selling Holder has completed the distribution described in such
registration statement, whichever occurs first;
(c) furnish to such Selling Holder
such number of copies of such registration statement, each
amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus), and
such other Documents as such Selling Holder may reasonably request;
(d) use its reasonable efforts to
register or qualify such InterCel Common Stock under other
securities or blue sky laws of the same jurisdictions in which
InterCel is registering or qualifying the InterCel Common Stock for
sale for its own account in such registered offering, and to
maintain such registrations and qualifications effective for a
period of ninety days or until such Selling Holder has completed
the distribution of such InterCel Common Stock, whichever occurs
first, and to do any and all other reasonable acts and things that
may be necessary or advisable to enable such Selling Holder to
consummate the disposition in such jurisdictions of such InterCel
Common Stock (but InterCel will not be required to (i) qualify
generally to do business in any jurisdiction where it would not be
required but for this Section 12.2, (ii) subject itself to taxation
in any such jurisdiction, (iii) file any general consent to service
of process in any such jurisdiction, or (iv) take any other action
that InterCel, in its sole discretion, determines to be
unreasonable or impracticable); provided, however, that
notwithstanding anything to the contrary in this Business
Combination Agreement with respect to bearing of expenses, if any
such jurisdiction shall require that expenses incurred in
connection with the qualification of such InterCel Common Stock in
that jurisdiction be borne in part or full by such Selling Holder,
then such Selling Holder shall pay such expenses to the extent
required by such jurisdiction;
(e) notify such Selling Holder, at any
time when a prospectus relating thereto is required to be delivered
under the Securities Act within the period that InterCel is
required to keep the registration statement effective, of the
happening of any event as a result of which the prospectus included
in any such registration statement contains an untrue statement of
a material fact or omits any fact necessary to make the statements
therein not misleading, and prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers
of such InterCel Common Stock, such prospectus will not contain an
untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
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(f) cause all such InterCel Common
Stock to be listed on securities exchanges, if any, on which
similar securities issued by InterCel are then listed;
(g) provide a transfer agent and
registrar for all such InterCel Common Stock not later than the
effective date of such registration statement; and
(h) make available for inspection by
such Selling Holder, by any underwriter participating in any
distribution pursuant to such registration statement, and by any
attorney, accountant, or other agent retained by such Selling
Holder or by any such underwriter, all financial and other records,
pertinent corporate documents, and properties (other than
confidential intellectual property) of InterCel.
12.3. Holdback Agreement
In the event that InterCel effects an underwritten public
offering of any InterCel Common Stock, each Selling Holder agrees,
if requested by the managing underwriters, not to effect any public
sale or distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any InterCel Common Stock (except as part of
such underwritten offering) during the 90-day period commencing
with the effective date of the registration statement for such
offering.
12.4. Registration Expenses
12.4.1. Selling Holder Expenses
If, pursuant to Section 12.1, InterCel Common
Stock owned by any Selling Holder is included in a registration
statement, then such Selling Holder shall pay all transfer taxes,
if any, relating to the sale of its InterCel Common Stock, the fees
and expenses of its own counsel, and its pro rata portion of any
underwriting discounts or commissions or the equivalent thereof.
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12.4.2. InterCel Expenses
Except for the fees and expenses specified in
Section 12.4.1 and except as provided below in this Section 12.4.2,
InterCel shall pay all expenses incident to the registration and to
InterCel's performance of or compliance with these registration
provisions, including, without limitation, all registration and
filing fees, fees and expenses of compliance with securities or
blue sky laws, underwriting discounts, fees and expenses (other
than such Selling Holder's pro rata portion of any underwriting
discounts or commissions or the equivalent thereof), printing
expenses, messenger and delivery expenses, and fees and expenses of
counsel for InterCel and all independent certified public
accountants and other persons retained by InterCel. With respect
to any registration pursuant to Section 12.1, InterCel shall pay
its internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or
accounting duties) and the expenses and fees for listing the
securities to be registered on exchanges on which similar
securities issued by InterCel are then listed.
12.4.3. Indemnification
In the event that any shares of InterCel Common
Stock owned by a Selling Holder are sold by means of a registration
statement pursuant to Section 12.1, InterCel agrees to indemnify
and hold harmless such Selling Holder, each of its partners,
officers, and directors, and each person, if any, who controls or
may control such Selling Holder within the meaning of the
Securities Act (such Selling Holder, its partners, officers, and
directors, and any such other persons being hereinafter referred to
individually as a "Selling Holder Indemnified Person" and
collectively as "Selling Holder Indemnified Persons") from and
against all Claims based upon, arising out of, or resulting from
any untrue statement of a material fact contained in the
registration statement or any omission to state therein a material
fact necessary to make the statements made therein, in the light of
the circumstances under which they were made, not misleading,
except insofar as such Claim is based upon, arises out of, or
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results from information furnished to InterCel by or on behalf of
any Selling Holder for use in connection with the registration
statement. Such Selling Holder agrees to indemnify and hold
harmless all InterCel Indemnified Persons from and against all
Claims based upon, arising out of, or resulting from any untrue
statement of a material fact contained in the registration
statement or any omission to state therein a material fact
necessary in order to make the statement made therein, in the light
of the circumstances under which they were made, not misleading, to
the extent that such Claim is based upon, arises out of, or results
from information furnished to InterCel by such Selling Holder for
use in connection with the registration statement. The
indemnification set forth herein shall be in addition to any
liability InterCel or such Selling Holder may otherwise have to the
Selling Holder Indemnified Persons or InterCel Indemnified Persons.
Promptly after actually receiving notice of any Claim in respect of
which a Selling Holder Indemnified Person or InterCel Indemnified
Person may seek indemnification under this Section 12.4, such
Selling Holder Indemnified Person or InterCel Indemnified Person
shall submit written notice thereof to either InterCel or such
Selling Holder, as the case may be (sometimes being hereinafter
referred to as an "Indemnifying Person"). The omission of the
Selling Holder Indemnified Person or InterCel Indemnified Person so
to notify the Indemnifying Person of any such Claim shall not
relieve the Indemnifying Person from any liability it may have
hereunder except to the extent that (i) such liability was caused
or increased by such omission, or (ii) the ability of the
Indemnifying Person to reduce such liability was materially
adversely affected by such omission. In addition, the omission of
the Selling Holder Indemnified Person or InterCel Indemnified
Person so to notify the Indemnifying Person of any such Claim shall
not relieve the Indemnifying Person from any liability it may have
otherwise than hereunder. The Indemnifying Person shall have the
right to undertake, by counsel or representatives of its own
choosing, the defense, compromise or settlement (without admitting
liability of the Selling Holder Indemnified Person or InterCel
Indemnified Person) of any such Claim asserted, such defense,
compromise, or settlement to be undertaken at the expense and risk
of the Indemnifying Person, and the Selling Holder Indemnified
Person or InterCel Indemnified Person shall have the right to
engage separate counsel, at its own expense, whom counsel for the
Indemnifying Person shall keep informed and consult with in a
reasonable manner. In the event the Indemnifying Person shall
elect not to undertake such defense by its own representatives, the
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Indemnifying Person shall give prompt written notice of such
election to the Selling Holder Indemnified Person or InterCel
Indemnified Person, and the Selling Holder Indemnified Person or
InterCel Indemnified Person shall undertake the defense,
compromise, or settlement (without admitting liability of the
Selling Holder Indemnified Person or InterCel Indemnified Person)
thereof on behalf of and for the account and risk, and at the
expense (including reasonable attorneys fees), of the Indemnifying
Person by counsel or other representatives designated by the
Selling Holder Indemnified Person or InterCel Indemnified Person.
In the event that any Claim shall arise out of a transaction or
cover any period or periods wherein InterCel and such Selling
Holder shall each be liable hereunder for part of the liability or
obligation arising therefrom, then the parties shall, each choosing
its own counsel and bearing its own expenses, defend such Claim,
and no settlement or compromise of such Claim may be made without
the joint consent or approval of InterCel and such Selling Holder.
Notwithstanding the foregoing, no Indemnifying Person shall be
obligated hereunder with respect to amounts paid in settlement of
any Claim if such settlement is effected without the consent of
such Indemnifying Person (which consent shall not be unreasonably
withheld).
13. MISCELLANEOUS
13.1. Additional Actions and Documents
Each of the parties hereto hereby agrees to take or cause
to be taken such further actions, to execute, deliver and file or
cause to be executed, delivered and filed such further Documents,
and will obtain such consents, as may be necessary or as may be
reasonably requested in order to fully effectuate the purposes,
terms and conditions of this Business Combination Agreement.
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13.2. No Brokers
Each of the parties hereto represents and warrants to the
other parties (and to each of them) that such party has not engaged
any broker, finder or agent in connection with the transactions
contemplated by this Business Combination Agreement and has not
incurred (and will not incur) any unpaid liability to any broker,
finder or agent for any brokerage fees, finders' fees or
commissions, with respect to the transactions contemplated by this
Business Combination Agreement. Each party agrees to indemnify,
defend and hold harmless each of the other parties from and against
any and all claims asserted against such parties for any such fees
or commissions by any persons purporting to act or to have acted
for or on behalf of the indemnifying party.
13.3. Expenses
Subject to the provisions of Sections 3.1.2, 10 and 12
and to the Agreement of Limited Partnership of Powertel dated
October 26, 1994, as amended, each party hereto shall pay its own
expenses in connection with this Business Combination Agreement and
the transactions contemplated hereunder, including the raising of
at least two hundred million dollars in offerings by InterCel of
InterCel Common Stock and/or debt obligations (including all legal
and accounting fees, disbursements, and internal personnel and
overhead costs).
13.4. Assignment
InterCel shall have the right to assign its rights and
obligations under this Business Combination Agreement, in whole or
in part, to an Affiliate or to designate any of its Affiliates (to
the extent permitted by Law) to receive directly the Partnership
Interests and the Common Stock to be acquired hereunder or to
exercise any of the rights of InterCel, or to perform any of its
obligations. Except as set forth above, neither Powertel,
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InterCel, any Partner nor any Stockholder shall assign its
respective rights and obligations under this Business Combination
Agreement, in whole or in part, whether by operation of law or
otherwise, without the prior written consent of the other parties
hereto, and any such assignment contrary to the terms hereof shall
be null and void and of no force and effect. In no event shall the
assignment by Powertel, InterCel, any Partner or any Stockholder of
its respective rights or obligations under this Business
Combination Agreement, whether before or after the Closing, release
Powertel, InterCel, such Partner or such Stockholder from its
respective liabilities and obligations hereunder.
13.5. Entire Agreement; Amendment
This Business Combination Agreement, including the
Disclosure Schedules, the Exhibits and other Documents referred to
herein or Furnished pursuant hereto, constitutes the entire
Agreement among the parties hereto with respect to the transactions
contemplated herein, and it supersedes all prior oral or written
Agreements, commitments or understandings with respect to the
matters provided for herein. No amendment, modification or
discharge of this Business Combination Agreement shall be valid or
binding unless set forth in writing and duly executed and delivered
by the party against whom enforcement of the amendment,
modification, or discharge is sought.
13.6. Waiver
No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Business
Combination Agreement or under any other Documents Furnished in
connection with or pursuant to this Business Combination Agreement
shall impair any such right, power or privilege or be construed as
a waiver of any default or any acquiescence therein. No single or
partial exercise of any such right, power or privilege shall
preclude the further exercise of such right, power or privilege, or
the exercise of any other right, power or privilege. No waiver
shall be valid against any party hereto unless made in writing and
signed by the party against whom enforcement of such waiver is
sought and then only to the extent expressly specified therein.
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13.7. Consent to Jurisdiction
(a) This Business Combination Agreement
and the duties and obligations of InterCel, Powertel, the Partners
and the Stockholders hereunder and under each of the Documents
referred to herein shall be enforceable against any of InterCel,
Powertel, the Partners or the Stockholders in the courts of the
United States and of the States of Delaware and Georgia. For such
purpose, InterCel, Powertel, each of the Partners and each of the
Stockholders hereby irrevocably submit to the non-exclusive
jurisdiction of such courts, and agree that all claims in respect
of this Business Combination Agreement and such other Documents may
be heard and determined in any of such courts.
(b) Each of the Partners listed on
Exhibit A and each of the Stockholders hereby agree to submit to
the jurisdiction of any court with respect to any Claim which is
asserted against, resulting to, imposed upon or incurred by any
InterCel Indemnified Person and which gives rise to liability of
any such Partner or any Stockholder under or pursuant to this
Business Combination Agreement or the transactions contemplated
hereby, other than any liability arising from any provision of
Section 5 or in the Powertel Disclosure Schedule (with respect to
Section 5); provided, however, that such submission to jurisdiction
shall be solely for the purpose of being obligated to make a
contribution pursuant to Section 10.2(d).
(c) InterCel, Powertel, each of the
Partners and each of the Stockholders hereby irrevocably agree that
a final judgment of any of the courts specified above in any action
or proceeding relating to this Business Combination Agreement or to
any of the other Documents referred to herein or therein shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
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13.8. Severability
If any part of any provision of this Business Combination
Agreement or any other Agreement or document given pursuant to or
in connection with this Business Combination Agreement shall be
invalid or unenforceable in any respect, such part shall be
ineffective to the extent of such invalidity or unenforceability
only, without in any way affecting the remaining parts of such
provision or the remaining provisions of this Business Combination
Agreement.
13.9. Governing Law
This Business Combination Agreement, the rights and
obligations of the parties hereto, and any claims or disputes
relating thereto, shall be governed by and construed in accordance
with the laws of the State of Delaware (excluding the choice of law
rules thereof).
13.10. Notices
All notices, demands, requests, or other communications
which may be or are required to be given, served, or sent by any
party to any other party pursuant to this Business Combination
Agreement shall be in writing and shall be hand delivered, sent by
overnight courier or mailed by first-class, registered or certified
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mail, return receipt requested, postage prepaid, or transmitted by
telegram, telecopy or telex, addressed as follows:
(i) If to InterCel:
Allen E. Smith
President and Chief Executive Officer
InterCel, Inc.
1239 O.G. Skinner Drive
West Point, Georgia 31833
Telecopy: (706) 645-9523
with a copy (which shall not constitute notice) to:
Kimberley E. Thompson, Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Telecopy: (202) 637-5910
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(ii) If to Powertel and the Partners, to
the address listed under each
Partner's name on Exhibit A or
Exhibit B.
(iii) If to Stockholders, to the address
listed under each Stockholder's name
on Exhibit B.
Each party may designate by notice in writing a new address to
which any notice, demand, request or communication may thereafter
be so given, served or sent. Each notice, demand, request, or
communication which shall be hand delivered, sent, mailed,
telecopied or telexed in the manner described above, or which shall
be delivered to a telegraph company, shall be deemed sufficiently
given, served, sent, received or delivered for all purposes at such
time as it is delivered to the addressee (with the return receipt,
the delivery receipt, or (with respect to a telecopy or telex) the
answerback being deemed conclusive, but not exclusive, evidence of
such delivery) or at such time as delivery is refused by the
addressee upon presentation.
13.11. Headings
Section headings contained in this Business Combination
Agreement are inserted for convenience of reference only, shall not
be deemed to be a part of this Business Combination Agreement for
any purpose, and shall not in any way define or affect the meaning,
construction or scope of any of the provisions hereof.
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13.12. Execution in Counterparts
To facilitate execution, this Business Combination
Agreement may be executed in as many counterparts as may be
required. It shall not be necessary that the signatures of, or on
behalf of, each party, or that the signatures of all persons
required to bind any party, appear on each counterpart; but it
shall be sufficient that the signature of, or on behalf of, each
party, or that the signatures of the persons required to bind any
party, appear on one or more of the counterparts. All counterparts
shall collectively constitute a single Agreement. It shall not be
necessary in making proof of this Business Combination Agreement to
produce or account for more than a number of counterparts
containing the respective signatures of, or on behalf of, all of
the parties hereto.
13.13. Limitation on Benefits
The covenants, undertakings and agreements set forth in
this Business Combination Agreement shall be solely for the benefit
of, and shall be enforceable only by, the parties hereto and their
respective successors, heirs, executors, administrators, legal
representatives and permitted assigns, except that the Agreements
set forth in Section 10 also shall be for the benefit of, and
enforceable by, InterCel Indemnified Persons, Powertel Indemnified
Persons and their respective successors, heirs, executors,
administrators, legal representatives or permitted assigns and the
Agreements set forth in Section 12.4.3 also shall be for the
benefit of, and enforceable by, InterCel Indemnified Persons,
Selling Holder Indemnifed Persons and their respective successors,
heirs, executors, administrators, legal representatives or
permitted assigns.
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13.14. Binding Effect
Subject to any provisions hereof restricting assignment,
this Business Combination Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors, heirs, executors, administrators, legal representatives
and assigns.
13.15. Construction
Each of the parties hereto hereby acknowledges that all
parties hereto participated substantially in the negotiation and
drafting of this Business Combination Agreement and that,
accordingly, no court construing this Business Combination
Agreement shall construe it more stringently against one party than
against the other.
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IN WITNESS WHEREOF, the parties hereto have duly executed
this Business Combination Agreement, or have caused this Business
Combination Agreement to be duly executed on their behalf, as of
the day and year first above written.
[Corporate Seal] INTERCEL, INC.
Attest:
By:/s/ Allen E. Smith
Name: Allen E. Smith
Title: President and Chief
Executive Officer
[Corporate Seal] POWERTEL PCS PARTNERS, L.P.
By: ITC Personal Communications,
Inc., a general partner
Attest:
By:/s/ Campbell B. Lanier, III
Name: Campbell B. Lanier, III
Title: Chairman
THE PARTNERS:
[Corporate Seal] INTERCEL PCS SERVICES, INC.
Attest:
By:/s/ Allen E. Smith
Name: Allen E. Smith
Title: President and Chief
Executive Officer
[Corporate Seal] ITC PERSONAL COMMUNICATIONS, INC.
Attest:
By:/s/ Campbell B. Lanier, III
Name: Campbell B. Lanier, III
Title: Chairman
[Corporate Seal] MPX SYSTEMS, INC.
Attest:
By:/s/ Michael D. Blackwell
Name: Michael D. Blackwell
Title: Executive Vice President
and General Manager
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[Corporate Seal] SOUTH ATLANTIC PCS CORPORATION
Attest:
/s/ Sandra P. Barber By:/s/ Donald W. Burton
Name: Donald W. Burton
Title: President
[Corporate Seal] NEIPCS INC.
Attest:
By:/s/ Robert A. Dolson
Name: Robert A. Dolson
Title: President
[Corporate Seal] CIV PCS INVESTMENT CORP.
Attest:
/s/ Stacey S. McKittrick By:/s/ G. Jackson Tankersley, Jr.
Name: G. Jackson Tankersley, Jr.
Title: President
[Seal] BESSEMER VENTURE PARTNERS III L.P.
By: Deer III & Co., its general
partner
Witness:
/s/ Robert H. Buescher
Robert H. Buescher, a general partner
[Seal] SOUTHCOAST PCS PARTNERSHIP, LTD.
By: Southcoast PCS Corporation, its
Attest: general partner
/s/ Robert R. Kreis By:/s/ W. Radford Lovett, II
Name: W. Radford Lovett, II
Title: President
THE STOCKHOLDERS:
[Corporate Seal] ITC HOLDING COMPANY, INC.
Attest:
By:/s/ Campbell B. Lanier, III
Name: Campbell B. Lanier, III
Title: Chairman
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[Seal] SOUTH ATLANTIC VENTURE
FUND II, LIMITED PARTNERSHIP
By: South Atlantic Venture Partners II,
Limited Partnership, its general partner
Attest:
/s/ Sandra P. Barber By:/s/ Donald W. Burton
Name: Donald W. Burton
Title: General Partner
[Seal] SOUTH ATLANTIC VENTURE
FUND III, LIMITED PARTNERSHIP
By: South Atlantic Venture Partners III,
Limited Partnership, its general partner
Attest:
/s/ Sandra P. Barber By:/s/ Donald W. Burton
Name: Donald W. Burton
Title: General Partner
[Seal] THE BURTON PARTNERSHIP,
LIMITED PARTNERSHIP
Attest:
/s/ Sandra P. Barber By:/s/ Donald W. Burton
Name: Donald W. Burton
Title: General Partner
[Seal] THE CHARITABLE REMAINDER
EDUCATION TRUST III
Attest:
By:/s/ O. Gene Gabbard
Name: O. Gene Gabbard
Title: Trustee
Witness: WILLIAM SCOTT MILLER
REVOCABLE FAMILY TRUST DATED
MAY 3, 1994
/s/ Lisa A. Clouse By:/s/ W. Scott Miller
Name: W. Scott Miller
Title: Trustee
Witness:
/s/ Lisa A. Clouse /s/ Sandra P. Barber
Sandra P. Barber
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[Corporate Seal] WITOCO VENTURE CORPORATION
Attest:
/s/ Sandra P. Barber By:/s/ J. Thomas Touchton
Name: J. Thomas Touchton
Title: Chairman
[Corporate Seal] NATIONAL ENTERPRISES INC.
Attest:
By:/s/ Robert A. Dolson
Name: Robert A. Dolson
Title: President
Witness:
/s/ William S. White
William S. White
Witness:
/s/ Charles B. Webb
Charles B. Webb
Witness: RIDGWAY H. WHITE
By:/s/ William S. White
Name: William S. White
Title: Custodian for Ridgway H. White
under the Michigan Uniform Gift
to Minors Act
Witness: ELIZABETH R. WEBB
REVOCABLE TRUST DATED 8/8/88
By:/s/ Charles B. Webb
Name: Charles B. Webb
Title: Trustee
[Seal] CENTENNIAL FUND IV, L.P.
By: Centennial Holdings IV, L.P.,
its general partner
Witness:
/s/ Stacey S. McKittrick /s/ G. Jackson Tankersley, Jr.
G. Jackson Tankersley, Jr., a
general partner
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INDEX TO EXHIBITS
Exhibit Title Section Reference
A Partners, Partnership Interests Preamble
and Shares of InterCel Common
Stock to be Received
B Stockholders, Stock Ownership, Preamble
Partners, Partnership Interests
and Shares of Common Stock to be
Received
C Definitions Section 1
D Form of Opinion of InterCel's Sections 7.6
Counsel and 9.5
E Form of Opinion of Counsel for Sections 8.6
Partners Listed on Exhibit A and 9.2
F Form of Opinion of Counsel for Sections 8.6
Partners Listed on Exhibit B and 9.2
G Form of Amendment to Restated Section 2.2.2
Certificate of Incorporation of
InterCel
H Form of Assignment Agreement Section 9.3(a)
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EXHIBIT A
Shares of InterCel
Partner's Name Partnership Common Stock to be
and Address Interest Received
InterCel PCS Services, Inc. 13.396% 0
1239 O.G. Skinner Drive
West Point, Georgia 31833
FAX no.: 706/645-9523
Attn: Allen E. Smith
MPX Systems, Inc. 40.188% 4,494,892
440 Knox Abbott Drive, Suite 240
Cayce, South Carolina 29033
FAX no.: 803/343-2387
Attn: Michael D. Blackwell
Bessemer Venture Partners III L.P. 1.730% 193,507
1025 Old Country Road, Suite 205
Westbury, New York 11590
FAX no.: 516/997-2371
Attn: Robert H. Buescher
Southcoast PCS Partnership, Ltd. 0.346% 38,701
1010 East Adams Street
Jacksonville, Florida 32202
FAX no.: 904/634-0633
Attn: W. Radford Lovett, II
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EXHIBIT B
<TABLE>
<S> <C> <C> <C> <S> <C>
Shares of
Stock InterCel
Ownership Common Partners
Stockholder's Name (number of Stock to be Name and Partnership
and Address shares) Received Address Interest
ITC Holding Company, Inc. 100 2,338,671 ITC Personal 20.910%
1239 O.G. Skinner Drive Communications, Inc.
West Point, Georgia 31833 1239 O. G. Skinner Drive
FAX no.: 706/643-5067 West Point, Georgia 31833
Attn: Campbell B. Lanier, III
South Atlantic Venture Fund, II 1,000,000 464,417 South Atlantic PCS 13.396%
Limited Partnership Corporation
614 W. Bay Street, Suite 200 614 W. Bay Street, Suite 200
Tampa, Florida 33606 Tampa, Florida 33606
FAX no.: 813/253-2360 FAX no.: 813/253-2360
Attn: Donald W. Burton Attn: Donald W. Burton
South Atlantic Venture Fund 1,000,000
III, Limited Partnership
614 W. Bay Street, Suite 200
Tampa, Florida 33606
FAX no.: 813/253-2360
Attn: Donald W. Burton
The Burton Partnership, 1,000,000 464,417
Limited Partnership
614 W. Bay Street, Suite 200
Tampa, Florida 33606
FAX no.: 813/253-2360
Attn: Donald W. Burton
The Charitable Remain-der 176,191 81,826
Education Trust III
614 W. Bay Street, Suite 200
Tampa, Florida 33606
FAX no.: 813/253-2360
Attn: Donald W. Burton
William Scott Miller Revocable 8,333 3,870
Family Trust dated May 3, 1994
614 W. Bay Street, Suite 200
Tampa, Florida 33606
FAX no.: 813/253-2360
Attn: W. Scott Miller
Sandra P. Barber 8,333 3,870
614 W. Bay Street, Suite 200
Tampa, Florida 33606
FAX no.: 813/253-2360
Witoco Venture Corporation 33,333 15,481
One Tampa City Center
Suite 3405
Tampa, Florida 33602
FAX no.: 813/221-2041
3,226,190 1,498,298
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National Enterprises Inc. 785,000 607,612 NEIPCS Inc. 5.882%
535 North New Ballas 535 North New Basslas
St. Louis, Missouri 63141 St. Louis, Missouri 63141
FAX no.: 314/997-2451 FAX no.: 314/997/2451
Attn: Robert A. Dolson Attn: Robert A. Dolson
William S. White 10,000 7,740
c/o MFO Management Company
1802 Genesee Tower
Flint, Michigan 48502
FAX no.: 810/767-1207
Charles B. Webb 10,000 7,740
c/o MFO Management Company
1802 Genesee Tower
Flint, Michigan 48502
FAX no.: 810/767-1207
Ridgway H. White 20,000 15,481
c/o MFO Management Company
1802 Genesee Tower
Flint, Michigan 48502
FAX no.: 810/767-1207
Elizabeth R. Webb Revocable 25,000 19,351
Trust Dated 8/8/88
c/o MFO Management Company
1802 Genesee Tower
Flint, Michigan 48502
FAX no.: 810/767-1207
__________
850,000 657,924
Centennial Fund IV, L.P. 60,384.47 464,417 CIV PSC Investment Corp. 4.152%
1999 Broadway, Suite 2100 1999 Broadway, Suite 2100
Denver, Colorado 80202 Denver, Colorado 80202
FAX no.: 303/292-3512 FAX no.: 303/292-3512
Attn: Blair P. Whitaker Attn: Blair P. Whitaker
</TABLE>
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EXHIBIT C
Definitions
"Affiliate" means: (a) with respect to a person, any member
of such person's family; (b) with respect to an entity, any officer,
director, stockholder, partner or investor of or in such entity or of
or in any Affiliate of such entity; and (c) with respect to a person
or entity, any person or entity which directly or indirectly, through
one or more intermediaries, Controls, is Controlled by, or is under
common Control with such person or entity.
"Agreement" means any concurrence of understanding and
intention between two or more persons (or entities) with respect to
their relative rights and/or obligations or with respect to a thing
done or to be done (whether or not conditional, executory, express,
implied, in writing or meeting the requirements of contract),
including, without limitation, contracts, leases, promissory notes,
covenants, easements, rights of way, covenants, commitments,
arrangements and understandings.
"Assets" means assets of every kind and everything that is
or may be available for the payment of liabilities (whether inchoate,
tangible or intangible), including, without limitation, real and
personal property.
"Business Combination" shall mean the business combination
of Powertel with InterCel pursuant to the Business Combination
Agreement.
"Business Combination Agreement" means this Business
Combination Agreement, including the Disclosure Schedules and all
Exhibits hereto.
"Claims" means all demands, claims, actions or causes of
action, assessments, losses, damages (including, without limitation,
diminution in value), liabilities, costs and expenses, including,
without limitation, interest, penalties and attorneys' fees and
disbursements.
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"Closing" means the closing of the Business Combination
pursuant to the Business Combination Agreement.
"Closing Date" means such time and date as shall be mutually
agreed upon by InterCel, Powertel, the Partners and the Stockholders.
"Code" means the Internal Revenue Code of 1986, as amended,
and all Laws promulgated pursuant thereto or in connection therewith.
"Common Stock" means all of the issued and outstanding
shares of common stock of the Partners owned by the Stockholders.
"Control" means possession, directly or indirectly, of power
to direct or cause the direction of management or policies (whether
through ownership of voting securities, by Agreement or otherwise).
"Documents" means any paper or other material (including,
without limitation, computer storage media) on which is recorded (by
letters, numbers or other marks) information that may be evidentially
used, including, without limitation, legal opinions, mortgages,
indentures, notes, instruments, leases, Agreements, insurance
policies, reports, studies, financial statements (including, without
limitation, the notes thereto), other written financial information,
schedules, certificates, charts, maps, plans, photographs, letters,
memoranda and all similar materials.
"Effective Time" shall have the meaning set forth in Section
2.1.
"Encumbrance" means any mortgage, lien, pledge, encumbrance,
security interest, deed of trust, option, encroachment, reservation,
order, decree, judgment, condition, restriction, charge, Agreement,
claim or equity of any kind.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and all Laws promulgated pursuant thereto or in connection
therewith.
"Exhibit" means an exhibit attached to the Business
Combination Agreement.
"Furnished" means supplied, delivered or provided in any
way.
"Hart-Scott-Rodino" means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and all Laws promulgated
pursuant thereto or in connection therewith.
"Income Taxes" means any and all liability for any taxes
imposed on the income of a corporation, including without limitation,
any liability under the Code and all federal, state, local, and
foreign income, profits, gross receipts, and unitary taxes or similar
taxes or other assessments imposed with respect thereto, and all
transfer taxes and other taxes or assessments imposed as a result of
the Business Combination, and any interest, penalties, or additions in
respect of any such tax.
"Indemnifying Person" shall have the meaning set forth in
Section 12.4.3.
"InterCel" means InterCel, Inc., a Delaware corporation.
"InterCel Common Stock" means the common stock, par value
$0.01 per share, of InterCel.
"InterCel Disclosure Schedule" means the disclosure schedule
specified as the InterCel Disclosure Schedule to the Business
Combination Agreement.
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"InterCel Indemnified Persons" means InterCel and its
Affiliates, employees, representatives, agents, officers and
directors.
"InterCel Licenses" means all of the franchises, licenses,
permits, consents, certificates and other authorizations issued by the
Regulatory Authorities in connection with the Assets and business of
InterCel.
"InterCel Tax Returns" means all federal, state, local,
foreign and other applicable tax returns, declarations of estimated
tax reports required to be filed by InterCel (without regard to
extensions of time permitted by law or otherwise).
"Laws" means all foreign, federal, state and local statutes,
laws, ordinances, regulations, rules, resolutions, orders,
determinations, writs, injunctions, awards (including, without
limitation, awards of any arbitrator), judgments and decrees
applicable to the specified persons or entities and to the businesses
and Assets thereof (including, without limitation, Laws relating to
securities registration and regulation; the sale, leasing, ownership
or management of real property; employment practices, terms and
conditions, and wages and hours; building standards, land use and
zoning; safety, health and fire prevention; and environmental
protection, including Environmental Laws).
"Ordinary Course of Business" means ordinary course of
business consistent with prudent business operations.
"Partner Tax Returns" means all federal, state, local,
foreign and other applicable tax returns, declarations of estimated
tax reports required to be filed by a Partner (without regard to
extensions of time permitted by law or otherwise).
"Partners" means the Partners of Powertel specified on
Exhibits A and B attached to the Business Combination Agreement.
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"Partnership Interests" means all of the partnership
interests of Powertel.
"Powertel" means Powertel PCS Partners, L.P., a Delaware
limited partnership.
"Powertel Disclosure Schedule" means the disclosure schedule
specified as the Powertel Disclosure Schedule to the Business
Combination Agreement.
"Powertel Indemnified Persons" means Powertel and its
Affiliates, employees, representatives, agents, officers and
directors.
"Powertel Licenses" means all of the franchises, licenses,
permits, consents, certificates and other authorizations issued by the
Regulatory Authorities in connection with the Assets and business of
Powertel, including, without limitation, the PCS licenses for the
following major trading areas: Memphis, Tennessee/Jackson,
Mississippi (M028), Birmingham, Alabama (M029), and Jacksonville,
Florida (M037).
"Powertel Partnership Agreement" means the Agreement of
Limited Partnership dated October 26, 1994, as amended by the First
Amendment of Limited Partnership Agreement of Powertel PCS Partners,
L.P., dated as of June 7, 1995.
"Powertel Tax Returns" means all federal, state, local,
foreign and other applicable tax returns, declarations of estimated
tax reports required to be filed by Powertel (without regard to
extensions of time permitted by law or otherwise).
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"Proposal" means any proposal, offer or indication of
interest from any person, entity or group relating to any acquisition
or business combination of all or (other than in the Ordinary Course
of Business) any portion of the assets of, or any equity in, Powertel
or any business combination with Powertel, other than the transactions
contemplated by the Business Combination Agreement.
"Regulatory Authority" means the Federal Communications
Commission and any other governmental or supragovernmental authority
or instrumentality, including, without limitation, any other federal,
state or local communications regulatory authority regulating or
having jurisdiction over Powertel and its business or InterCel and its
business, as applicable.
"Section" means a Section (or a subsection) of the Business
Combination Agreement.
"Securities Act" means the Securities Act of 1933, as
amended, and all Laws promulgated pursuant thereto or in connection
therewith.
"Selling Holder" means each Partner listed on Exhibit A to
the Business Combination Agreement and each Stockholder.
"Selling Holder Indemnified Persons" means the Selling
Holders and their respective partners, officers and directors, and
each person, if any, who controls or may control a Selling Holder
within the meaning of the Securities Act.
"Stockholders" means the Stockholders of the Partners
specified on Exhibit B attached to the Business Combination Agreement.
"Subsidiary" means a corporation or other entity of which at
least 80% of the outstanding securities or other interests having
rights to vote or otherwise exercise Control are held, directly or
indirectly, by Powertel.
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"Tax Data" shall have the meaning set forth in Section
3.3.1.
"Tax Documentation" shall have the meaning set forth in
Section 3.3.1.
"Tax Returns" means any return, report, information return,
or other documents (including any related supporting schedules,
statements, or information) filed or required to be filed with any Tax
authority or government entity in connection with the determination,
assessment, or collection of any Income Taxes of any party or the
administration of any laws, regulations, or administrative
requirements relating to any Taxes defined herein.
"Taxes" means all federal, state, local and foreign taxes
(including, without limitation, income, profit, franchise, sales, use,
real property, personal property, ad valorem, excise, employment,
social security and wage withholding taxes) and installments of
estimated taxes, assessments, deficiencies, levies, imports, duties,
license fees, registration fees, withholdings, or other similar
charges of every kind, character or description imposed by any
governmental or quasi-governmental authorities, and any interest,
penalties or additions to tax imposed thereon or in connection
therewith.
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TABLE OF CONTENTS
Page
1. DEFINITIONS 1
2. BUSINESS COMBINATION; EXCHANGE OF PARTNERSHIP
INTERESTS AND COMMON STOCK 2
2.1. Effective Time 2
2.2. Receipt of InterCel Common Stock for
Partnership Interests or Common Stock 2
3. ADDITIONAL AGREEMENTS, UNDERTAKINGS AND COVENANTS 2
3.1. Consents and Approvals 2
3.1.1. General 2
3.1.2. Hart-Scott-Rodino 3
3.1.3. Federal Communications Commission 3
3.1.4. Stockholders' Meeting 3
3.2. Operation of Business of the Companies 4
3.2.1. Preserve Business 4
3.2.2. Conduct Business in Ordinary Course 4
3.2.3. Notice of Adverse Change 4
3.2.4. Books of Record and Account; Financial
Statements 5
3.3. Taxes 5
3.3.1. Cooperation 5
3.3.2. Retention of Information 5
3.3.3. Tax Reporting 6
3.4. No Inconsistent Negotiations 6
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3.5. News Releases 7
3.6. Subsequent Events 7
3.7. Notice of Litigation 7
3.8. Waiver of Transfer Restrictions 7
3.9. Certificate of Incorporation 7
3.10. Directors 8
4. REPRESENTATIONS AND WARRANTIES OF POWERTEL, THE
PARTNERS AND THE STOCKHOLDERS 8
4.1. Organization and Standing 8
4.2. Subsidiaries 9
4.3. Certificate of Limited Partnership and
Limited Partnership Agreement 9
4.4. Capitalization 9
4.5. Financial Statements 9
4.6. Reports and Records 10
4.7. Powertel Licenses 10
4.8. Taxes 11
4.8.1. Filed Returns 11
4.8.2. Tax Liability 11
4.8.3. Tax Audits 11
4.8.4. Tax Returns 11
4.8.5. Miscellaneous 12
4.9. Restrictions and Consents 12
4.10. Authorization 12
4.11. Absence of Violation 13
4.12. Binding Obligation 13
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5. REPRESENTATIONS AND WARRANTIES OF EACH PARTNER AND
EACH STOCKHOLDER 13
5.1. Title to Partnership Interests and Common
Stock 14
5.1.1. Title to Partnership Interests 14
5.1.2. Title to Common Stock 14
5.2. Capacity and Authorization 14
5.3. Restrictions and Consents 15
5.4. Binding Obligation 15
5.5. Transfer of Title 15
5.6. Private Placement of Securities 16
5.6.1. Review of Documents 16
5.6.2. Opportunity to Request Information 16
5.6.3. No Reliance on Advertisement 16
5.6.4. Experience in Financial and Business
Matters 16
5.6.5. Acquisition for Investment 17
5.6.6. No Resale or Transfer 17
5.6.7. Recognition of Certain Risks 17
5.6.8. Eligibility for Investment in InterCel
Common Stock 17
5.7. Information Regarding Certain Partners 18
5.7.1. Organization and Standing 18
5.7.2. Subsidiaries 18
5.7.3. Certificate or Articles of Incorporation
and Bylaws 18
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5.7.4. Capitalization 18
5.7.5. Financial Statements 19
5.7.6. No Liabilities 19
5.7.7. Taxes 20
5.7.8. Assets and Activities 21
5.7.9. Books and Records 21
5.7.10. Litigation 21
6. REPRESENTATIONS AND WARRANTIES OF INTERCEL 21
6.1. Organization and Standing 22
6.2. Subsidiaries 22
6.3. Certificate of Incorporation and Bylaws 22
6.4. Capitalization 22
6.5. Financial Statements 23
6.6. Reports and Records 23
6.7. InterCel Licenses 24
6.8. Taxes 24
6.8.1. Filed Returns 24
6.8.2. Tax Liability 25
6.8.3. Tax Audits 25
6.8.4. Tax Returns 25
6.8.5. Miscellaneous 25
6.9. Restrictions and Consents 25
6.10. Authorization 26
6.11. Absence of Violation 26
6.12. Binding Obligation 27
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6.13. No Registration Under the Securities Act 27
6.14. Acquisition for Investment 27
6.15. Evaluation of Merits and Risks of
Investment 27
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF POWERTEL,
THE PARTNERS AND THE STOCKHOLDERS 28
7.1. Representations and Warranties 28
7.2. Performance 28
7.3. Legal Proceedings 28
7.4. Consents 29
7.5. InterCel's Certificate 29
7.6. Opinion of InterCel's Counsel 29
7.7. Documents at Closing 29
7.8. Financing 29
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF INTERCEL 29
8.1. Representations and Warranties 30
8.2. Performance 30
8.3. Absence of Adverse Changes 30
8.4. Legal Proceedings 30
8.5. Partners' and Stockholders' Certificate 30
8.6. Opinion of Partners' Counsel 31
8.7. Financing 31
8.8. Documents at Closing 31
8.9. Consents 31
8.10. Stockholders' Approval 31
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9. CLOSING 31
9.1. Closing of Sale and Business Combination 31
9.2. Deliveries by the Stockholders 32
9.3. Deliveries by the Partners 32
9.4. Deliveries by Powertel 32
9.5. Deliveries by InterCel 33
10. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION;
REMEDIES 33
10.1. Survival of Representations 33
10.2. Agreement of Powertel and Each Partner
and Each Stockholder to Indemnify 33
10.3. Agreement of InterCel to Indemnify 35
10.4. Conditions of Indemnification 36
10.5. Specific Performance 37
10.6. Remedies Cumulative 37
11. TERMINATION 37
11.1. Termination 37
11.2. Effect of Termination 38
12. REGISTRATION RIGHTS 38
12.1. Piggyback Registration Rights 38
12.1.1. Request 38
12.1.2. Pro Rata Reduction 39
12.2. Registration Procedures 39
12.3. Holdback Agreement 41
12.4. Registration Expenses 41
12.4.1. Selling Holder Expenses 41
12.4.2. InterCel Expenses 41
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12.4.3. Indemnification 41
13. MISCELLANEOUS 43
13.1. Additional Actions and Documents 43
13.2. No Brokers 43
13.3. Expenses 43
13.4. Assignment 44
13.5. Entire Agreement; Amendment 44
13.6. Waiver 44
13.7. Consent to Jurisdiction 45
13.8. Severability 45
13.9. Governing Law 46
13.10. Notices 46
13.11. Headings 47
13.12. Execution in Counterparts 47
13.13. Limitation on Benefits 47
13.14. Binding Effect 47
13.15. Construction 48
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EXHIBIT III
AMENDMENT NO. 1 TO BUSINESS COMBINATION AGREEMENT
THIS AMENDMENT NO. 1 TO BUSINESS COMBINATION AGREEMENT
("Amendment No. 1") is entered into as of October 17, 1995
between InterCel, Inc. a Delaware corporation ("InterCel"), and
InterCel PCS Services, Inc., a Delaware corporation ("Services").
WHEREAS, InterCel, Services, and certain other parties
entered into a Business Combination Agreement dated as of August
23, 1995 (the "Business Combination Agreement");
WHEREAS, Section 13.5 of the Business Combination Agreement
provides that no amendment, modification or discharge of the
Business Combination Agreement shall be valid or binding unless
set forth in writing and duly executed and delivered by the party
against whom enforcement of the amendment, modification, or
discharge is sought; and
WHEREAS, InterCel and Services desire to amend the Business
Combination Agreement to delete a phrase with respect to the
Partnership Interests owned by Services.
NOW, THEREFORE, in consideration of the mutual premises and
covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Section 2.2 of the Business Combination Agreement is
hereby amended by deleting the phrase ", which shall be
extinguished".
2. Except as otherwise provided herein, all terms,
provisions, covenants, representations, warranties, agreements
and conditions of the Business Combination Agreement shall remain
unchanged and in full force and effect.
3. This Amendment No. 1, the rights and obligations of
the parties hereto, and any claims or disputes relating thereto,
shall be governed by and construed in accordance with the laws of
the State of Delaware (excluding the choice of law rules
thereof).
4. From and after the execution of this Amendment No. 1
by the parties hereto, any reference to the Business Combination
Agreement shall be deemed to be a reference to the Business
Combination Agreement as amended hereby.
5. Capitalized terms not otherwise defined herein shall
have the meaning set forth in the Business Combination Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Amendment No. 1, or have caused this Amendment No. 1 to be
duly executed on their behalf, as of the day and year first above
written.
1
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INTERCEL, INC.
By:_________________________
Name:
Title:
INTERCEL PCS SERVICES, INC.
By:____________________________
Name:
Title:
2
<PAGE>
EXHIBIT IV
STOCK PURCHASE AGREEMENT, dated as of March 4, 1996, between
INTERCEL, INC., a Delaware corporation (the "Seller"), and MPX
SYSTEMS, INC., a South Carolina corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller wishes to issue and to sell to the
Purchaser, and the Purchaser wishes to purchase from the Seller,
100,000 shares (the "Shares") of a new series of convertible
preferred stock of the Seller designated Series B Convertible
Preferred Stock, par value $0.01 per share (the "Preferred
Stock"), upon the terms and subject to the conditions set forth
herein; and
WHEREAS, the terms of the Preferred Stock are set forth
in the form of Certificate of Designation attached as Annex I
hereto (the "Certificate of Designation");
NOW, THEREFORE, in consideration of the premises and
the mutual agreements and covenants hereinafter set forth, the
Purchaser and the Seller hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings:
"Acquisition Documents" has the meaning specified in
Section 7.01.
"Action" means any claim, action, suit, arbitration,
inquiry, proceeding or investigation by or before any
Governmental Authority.
"Affiliate" means, with respect to any specified
Person, any other Person that directly, or indirectly through one
or more intermediaries, controls, is controlled by, or is under
common control with, such specified Person.
"Agreement" or "this Agreement" means this Stock
Purchase Agreement, dated as of March 4, 1996, between the Seller
and the Purchaser (including the Exhibits hereto and the
Disclosure Schedule) and all amendments hereto made in accordance
with the provisions of Section 9.09.
1
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"Assets" means the properties, assets and contract
rights used or intended to be used in the conduct of Business or
otherwise owned, leased or used by the Seller or any Subsidiary
or, with respect to contract rights, to which the Seller or any
Subsidiary is a party.
"Atlanta Asset Purchase Agreement" means the Asset
Purchase Agreement among GTE Mobilnet Incorporated, InterCel
Atlanta Licenses, Inc. and the Seller, pursuant to which the
Seller proposes to acquire the license granted by the United
States Federal Communications Commission to provide personal
communications services utilizing 1.8 Ghz in the Atlanta Major
Trading Area.
"Atlanta MTA Acquisition Closing" means the closing of
the transactions contemplated by the Atlanta Asset Purchase
Agreement.
"Beneficially Own" with respect to any securities and
"Beneficial Ownership" mean having beneficial ownership as
determined pursuant to Rule 13d-3 under the Exchange Act
including pursuant to any agreement, arrangement or
understanding, whether or not in writing.
"Business" means the business of the Seller and the
Subsidiaries as currently conducted and contemplated as of the
date hereof by the Seller to be conducted (as described in the
Prospectus or contemplated by this Agreement, the Atlanta Asset
Purchase Agreement, the Equipment Purchase Agreement and the
Ericsson Agreement).
"Business Day" means any day other than a Saturday,
Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to
close.
"Certificate of Designation" has the meaning specified
in the recitals to this Agreement.
"Closing" has the meaning specified in Section 2.03.
"Closing Date" has the meaning specified in
Section 2.03.
"Commission" means the United States Securities and
Exchange Commission.
"Common Stock" means the common stock, par value $0.01
per share, of the Seller.
2
<PAGE>
"control" (including the terms "controlled by" and
"under common control with"), with respect to the relationship
between or among two or more Persons, means the possession,
directly or indirectly or as trustee or executor, of the power to
direct or cause the direction of the affairs or management of a
Person, whether through the ownership of voting securities, as
trustee or executor, by contract or otherwise, including, without
limitation, the ownership, directly or indirectly, of securities
having the power to elect a majority of the board of directors or
similar body governing the affairs of such Person.
"Credit Agreement" means the Credit Agreement, dated as
of March 4, 1996, among InterCel PCS Services, Inc., as Borrower,
Ericsson Inc., as Initial Lender, and Ericsson Inc., as Agent.
"Current Market Value" means, as of a particular date,
the average of the high bid and low asked prices per share of
Common Stock in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotation System or such other system then in use, or such other
exchange or inter-dealer quotation system on which the Common
Stock is then principally traded or authorized to be quoted.
"Disclosure Schedule" means the Disclosure Schedule
attached hereto, dated as of the date hereof, and forming a part
of this Agreement.
"Encumbrance" means any security interest, pledge,
mortgage, lien, charge, encumbrance, adverse claim, preferential
arrangement or restriction of any kind, including, without
limitation, any restriction on the use, voting, transfer, receipt
of income or other exercise of any attributes of ownership.
"Equipment Purchase Agreement" means the Acquisition
Agreement, dated as of March 4, 1996, between Ericsson Inc. and
InterCel PCS Services, Inc., in connection with the sale by
Ericsson Inc. to InterCel PCS Services, Inc. of switches and PCS
1900 equipment.
"Ericsson Agreement" means the Stock Purchase
Agreement, dated as of March 4, 1996, between the Seller and
Ericsson Inc., relating to the purchase of 100,000 shares of
Series A Convertible Preferred Stock, par value $0.01 per share,
of the Seller.
"Ericsson Closing" means the closing of the
transactions contemplated by the Ericsson Agreement.
"Escrow Agent" has the meaning specified in the Escrow
Agreement.
3
<PAGE>
"Escrow Agreement" has the meaning specified in
Section 2.04.
"Exchange Act" means the United States Securities
Exchange Act of 1934, as amended.
"Governmental Authority" means any United States
federal, state or local or any foreign government, governmental,
regulatory or administrative authority, agency or commission or
any court, tribunal, or judicial or arbitral body.
"Governmental Order" means any order, writ, judgment,
injunction, decree, stipulation, determination or award entered
by or with any Governmental Authority.
"HSR Act" means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and
regulations promulgated thereunder.
"Law" means any United States federal, state, local or
foreign statute, law, ordinance, regulation, rule, code, order,
other requirement or rule of law, including, without limitation,
any requirement or rule of law of the United States Federal
Communications Commission.
"Liabilities" means any and all debts, liabilities and
obligations, whether accrued or fixed, absolute or contingent,
matured or unmatured or determined or determinable, including,
without limitation, those arising under any Law, Action or
Governmental Order and those arising under any contract,
agreement, arrangement, commitment or undertaking.
"Loss" has the meaning specified in Section 7.02.
"Material Adverse Effect" means any circumstance,
change in, or effect on the Business, the Seller or any
Subsidiary that, individually or in the aggregate with any other
circumstances, changes in, or effects on, the Business, the
Seller or any Subsidiary: (a) is, or would reasonably be
expected to be, materially adverse to the business, operations,
Assets or Liabilities, prospects, results of operations or
financial condition of the Seller and the Subsidiaries, taken as
a whole, or (b) would reasonably be expected to materially
adversely affect the ability of the Seller and the Subsidiaries
to operate or conduct the Business in the manner in which it is
currently operated or conducted or contemplated to be operated or
conducted by the Seller and the Subsidiaries.
4
<PAGE>
"Person" means any individual, partnership, limited
liability company, firm, corporation, association, trust,
unincorporated organization or other entity, as well as any
syndicate or group that would be deemed to be a person under
Section 13(d)(3) of the Exchange Act.
"Preferred Stock" has the meaning specified in the
recitals to this Agreement.
"Prospectus" means the Seller's Prospectus dated
February 1, 1996, relating to 7,373,211 shares of Common Stock.
"Purchase Price" has the meaning specified in
Section 2.02.
"Purchaser" has the meaning specified in the preamble
to this Agreement.
"Reference Balance Sheet" means the audited
consolidated balance sheet (including the related notes and
schedules thereto) of the Seller, dated as of December 31, 1995,
a copy of which the Seller has provided to the Purchaser prior to
the execution of this Agreement.
"Reference Balance Sheet Date" means December 31, 1995.
"Sale" has the meaning specified in Section 5.10(b).
"SEC Reports" has the meaning specified in Section
3.06(a).
"Securities Act" means the United States Securities Act
of 1933, as amended.
"Seller" has the meaning specified in the preamble to
this Agreement.
"Shares" has the meaning specified in the recitals to
this Agreement.
"Subsidiaries" means any and all corporations,
partnerships, limited liability companies, joint ventures,
associations and other entities controlled by the Seller directly
or indirectly through one or more intermediaries.
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"Tax" or "Taxes" means any and all taxes, fees, levies,
duties, tariffs, imposts, and other charges of any kind (together
with any and all interest, penalties, additions to tax and
additional amounts imposed with respect thereto) imposed by any
government or taxing authority, including, without limitation:
taxes or other charges on or with respect to income, franchises,
windfall or other profits, gross receipts, property, sales, use,
capital stock, payroll, employment, social security, workers'
compensation, unemployment compensation, or net worth; taxes or
other charges in the nature of excise, withholding, ad valorem,
stamp, transfer, value added, or gains taxes; license,
registration and documentation fees; and customs duties, tariffs,
and similar charges.
"Third Party Claims" has the meaning specified in
Section 7.02(b).
"U.S. GAAP" means United States generally accepted
accounting principles and practices as in effect from time to
time and applied consistently throughout the periods involved.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale of the Shares. Upon
the terms and subject to the conditions of this Agreement, at the
Closing, the Seller shall sell to the Purchaser, and the
Purchaser shall purchase from the Seller, the Shares.
SECTION 2.02. Purchase Price. The aggregate purchase
price for the Shares shall be $75,000,000.00 (the "Purchase
Price"), representing a purchase price of $750.00 per Share.
SECTION 2.03. Closing. Upon the terms and subject to
the conditions of this Agreement, the issuance, sale and purchase
of the Shares contemplated by this Agreement shall take place at
a closing (the "Closing") to be held at 10:00 A.M. local time on
a date and at a location mutually agreed to by the parties upon
the satisfaction or waiver of all conditions to the obligations
of the parties set forth in Article VI, or at such other place or
at such other time or on such other date as the Seller and the
Purchaser may mutually agree upon in writing (the day on which
the Closing takes place being the "Closing Date").
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SECTION 2.04. Escrow. On a date mutually agreed by
the Seller and the Purchaser (but no later than the closing date
of the Senior Note offering contemplated by the Seller), the
Seller and the Purchaser shall enter into an Escrow Agreement
with the Escrow Agent substantially in the form of Exhibit 2.04
(the "Escrow Agreement"). In accordance with the terms of the
Escrow Agreement, on such date (or as soon thereafter as
practicable, as mutually agreed by the Seller and the Purchaser),
the Purchaser shall deposit with the Escrow Agent the Purchase
Price, to be managed and paid out by the Escrow Agent in
accordance with the terms of the Escrow Agreement.
SECTION 2.05. Closing Deliveries by the Seller. At
the Closing, the Seller shall deliver or cause to be delivered to
the Purchaser:
(a) a receipt for the Purchase Price;
(b) stock certificates evidencing the Shares duly
registered in the name of the Purchaser, in form reasonably
satisfactory to the Purchaser; and
(c) the opinions, certificates and other documents
required to be delivered pursuant to Section 6.02.
SECTION 2.06. Closing Deliveries by the Purchaser. At
the Closing, the Purchaser shall deliver to the Seller the
opinions, certificates and other documents required to be
delivered pursuant to Section 6.01.
SECTION 2.07. Closing Deliveries by the Escrow Agent.
At the Closing, pursuant to the terms of the Escrow Agreement,
the Escrow Agent shall deliver to the Seller the Purchase Price
in cash by wire transfer in immediately available funds to a bank
account in the United States to be designated by the Seller, by
written notice to the Purchaser at least five Business Days prior
to the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to the Purchaser to enter into this
Agreement, the Seller hereby represents and warrants to the
Purchaser as follows:
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SECTION 3.01. Organization, Authority and
Qualification of the Seller. The Seller is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Delaware and has all necessary power and
authority to enter into this Agreement and the Escrow Agreement,
to carry out its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. The
Seller is duly licensed or qualified to do business and is in
good standing in each jurisdiction in which the properties owned
or leased by it or the operation of its business makes such
licensing or qualification necessary. The execution and delivery
of this Agreement and the Escrow Agreement by the Seller, the
performance by the Seller of its obligations hereunder and
thereunder and the consummation by the Seller of the transactions
contemplated hereby and thereby, including, without limitation,
the issuance of the Preferred Stock in accordance with the terms
of this Agreement and the Certificate of Designation, have been
duly authorized by all requisite action on the part of the
Seller, except for the stockholder approval contemplated by
Section 5.09 (which shall have been obtained prior to the
Closing). This Agreement has been, and upon its execution the
Escrow Agreement shall have been, duly executed and delivered by
the Seller, and (assuming due authorization, execution and
delivery by the Purchaser) this Agreement constitutes, and upon
its execution the Escrow Agreement will constitute, a legal,
valid and binding obligation of the Seller enforceable against
the Seller in accordance with its terms.
SECTION 3.02. Capital Stock of the Seller. The
authorized capital stock of the Seller consists of 39,000,000
shares of Common Stock and 1,000,000 shares of preferred stock,
par value $0.01 per share. By the Closing Date, the Seller will
duly increase the authorized capital stock of the Seller to
consist of 55,000,000 shares of Common Stock and 1,000,000 shares
of preferred stock, par value $0.01 per share. As of the date
hereof, (i) 26,823,694 shares of Common Stock are issued and
outstanding, all of which are validly issued, fully paid and
nonassessable and (ii) no shares of preferred stock are issued
and outstanding. None of the issued and outstanding shares of
Common Stock was issued in violation of any preemptive rights.
Except as disclosed in Section 3.02 of the Disclosure Schedule,
there are no options, warrants, convertible securities or other
rights, agreements, arrangements or commitments of any character
to which the Seller is a party relating to the issuance or sale
of capital stock of the Seller or obligating the Seller to issue
or sell any shares of capital stock of, or any other equity
interest in, the Seller. Except as disclosed in Section 3.02 of
the Disclosure Schedule, there are no outstanding contractual
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obligations of the Seller to repurchase, redeem or otherwise
acquire any shares of Common Stock. Upon issuance of the Shares
to the Purchaser at the Closing and payment therefor pursuant to
this Agreement and the Certificate of Designation, the Shares
will be validly issued, fully paid and nonassessable and free of
preemptive rights. By the Closing Date, the shares of Common
Stock issuable upon conversion of the Shares will be duly
authorized and reserved for issuance upon such conversion and,
upon issuance of such shares in accordance with the Certificate
of Designation, will be validly issued, fully paid and
nonassessable and free of preemptive rights. Upon consummation
of the transactions contemplated by this Agreement, including the
issuance of the Shares and registration of the Shares in the name
of the Purchaser in the stock records of the Seller, the
Purchaser will own the Shares free and clear of all Encumbrances,
other than Encumbrances resulting from any action, or failure to
take action, by the Purchaser.
SECTION 3.03. Subsidiaries. Each Subsidiary: (i) is
duly organized and validly existing under the laws of its
jurisdiction of organization, (ii) has all necessary power and
authority to own, operate or lease the properties and assets
owned, operated or leased by such Subsidiary and to carry on its
business as it has been and is currently conducted by such
Subsidiary and (iii) is duly licensed or qualified to do business
and is in good standing in each jurisdiction in which the
properties owned or leased by it or the operation of its business
makes such licensing or qualification necessary or desirable,
except where the failure to be so duly licensed or qualified
would not have a Material Adverse Effect.
SECTION 3.04. No Conflict. Assuming that all
consents, approvals, authorizations and other actions described
in Section 3.05 have been obtained and all filings and
notifications listed in Section 3.05 of the Disclosure Schedule
have been made, the execution, delivery and performance of this
Agreement and the Escrow Agreement by the Seller, and the
issuance of the Shares and the performance of the Seller's
obligations in accordance with the Certificate of Designation, do
not and will not, as of the date hereof and as of the Closing
Date, (a) violate, conflict with or result in the breach of any
provision of the certificate of incorporation or by-laws (or
similar organizational documents) of the Seller or any
Subsidiary, (b) conflict with or violate (or cause an event which
could have a Material Adverse Effect as a result of) any Law or
Governmental Order applicable to the Seller, any Subsidiary or
any of their respective assets, properties or businesses or
(c) except as set forth in Section 3.04(c) of the Disclosure
Schedule, conflict with, result in any breach of, constitute a
default (or event which with the giving of notice or lapse of
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time, or both, would become a default) under, require any consent
under, or give to others any rights of termination, amendment,
acceleration, suspension, revocation or cancellation of, or
result in the creation of any Encumbrance on any of the Shares or
on any of the assets or properties of the Seller or any
Subsidiary pursuant to, any note, bond, mortgage or indenture,
contract, agreement, lease, sublease, license, permit, franchise
or other instrument or arrangement to which the Seller or any
Subsidiary is a party or by which any of the Shares or any of
such assets or properties is bound or affected.
SECTION 3.05. Governmental Consents and Approvals.
The execution, delivery and performance of this Agreement and the
Escrow Agreement by the Seller do not and will not require any
consent, approval, authorization or other order of, action by,
filing with or notification to any Governmental Authority, except
(a) as described in Section 3.05 of the Disclosure Schedule,
(b) pursuant to the notification requirements of the HSR Act,
(c) the filing with the Secretary of State of the State of
Delaware of the Certificate of Designation contemplated by
Section 5.01, and (d) any filings required to effect any
registration pursuant to Section 5.05.
SECTION 3.06. Seller SEC Documents; Financial
Statements. (a) The Seller has filed all forms, reports and
documents required to be filed by it with the Commission, and has
heretofore made available to the Purchaser, in the form filed
with the Commission (excluding any exhibits thereto), (A) its
Annual Report on Form 10-K for the fiscal year ended December 31,
1994, (B) its Quarterly Reports on Form 10-Q for the periods
ended March 31, 1995, June 30, 1995, and September 30, 1995,
(C) all proxy statements relating to the Seller's meetings of
stockholders (whether annual or special) held since December 31,
1994, (D) the Prospectus and the related Registration Statement
on Form S-1 and (E) its Current Reports on Form 8-K dated after
December 31, 1994 (the forms, reports and other documents
referred to in clauses (A), (B), (C), (D) and (E) above being
referred to herein, collectively, as the "SEC Reports").
(b) The SEC Reports and any other forms, reports and
other documents filed by the Seller with the Commission after the
date of this Agreement (i) were prepared in all material respects
in accordance with the requirements of the Securities Act and the
Exchange Act, as the case may be, and the rules and regulations
thereunder and (ii) did not at the time they were filed contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
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(c) The financial statements (including, in each
case, any notes thereto) contained in the SEC Reports were
prepared in accordance with U.S. GAAP applied on a consistent
basis throughout the periods indicated (except as may be
indicated in the notes thereto) and each fairly presented the
financial position, results of operations and cash flows of the
Seller and its consolidated subsidiaries as at the respective
dates thereof and for the respective periods indicated therein
(subject, in the case of unaudited statements, to normal and
recurring year-end adjustments which were not and are not
expected, individually or in the aggregate, to be material in
amount).
(d) Since December 31, 1994 there has not been any
change, occurrence or circumstance in the business, results of
operations or financial condition of the Seller or any Subsidiary
having, individually or in the aggregate, a Material Adverse
Effect, other than changes, occurrences and circumstances
referred to in any subsequently filed SEC Reports.
SECTION 3.07. No Undisclosed Liabilities. There are
no Liabilities of the Seller or any Subsidiary, other than
Liabilities (i) disclosed in Section 3.07 of the Disclosure
Schedule, (ii) reflected in the SEC Reports, (iii) not required
to be reflected in a consolidated balance sheet of the Seller and
its Subsidiaries or in the notes thereto prepared in accordance
with U.S. GAAP or (iv) incurred since the Reference Balance Sheet
Date in the ordinary course of business.
SECTION 3.08. Conduct in the Ordinary Course; Absence
of Certain Changes, Events and Conditions. Since the Reference
Balance Sheet Date, except as disclosed in any subsequently filed
SEC Reports or as contemplated by this Agreement, the business of
the Seller and the Subsidiaries has been conducted in the
ordinary course and the Seller has not suffered any Material
Adverse Effect
SECTION 3.09. Litigation. Except as set forth in the
SEC Reports or as disclosed in Section 3.09 of the Disclosure
Schedule, there are no Actions by or against the Seller or any
Subsidiary (or by or against any Affiliate thereof and relating
to the Business, the Seller or any Subsidiary), or affecting any
of the Assets, pending before any Governmental Authority (or, to
the best knowledge of the Seller, threatened to be brought by or
before any Governmental Authority) that has, has had or could
have a Material Adverse Effect or could reasonably be expected to
affect the legality, validity or enforceability of this Agreement
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or the Escrow Agreement or the consummation of the transactions
contemplated hereby or thereby. None of the Seller, the
Subsidiaries nor any of the Assets is subject to any Governmental
Order (nor, to the best knowledge of the Seller, are there any
such Governmental Orders threatened to be imposed by any
Governmental Authority) which has, has had or could have a
Material Adverse Effect.
SECTION 3.10. Compliance with Laws. The Seller and
the Subsidiaries have each conducted and continue to conduct the
Business in all material respects in accordance with all Laws and
Governmental Orders applicable to the Seller or any Subsidiary or
any of the Assets or the Business, and neither the Seller nor any
Subsidiary is in material violation of any such Law or
Governmental Order.
SECTION 3.11. Full Disclosure. The Seller is not
aware of any facts pertaining to the Seller, any Subsidiary or
the Business which could have a Material Adverse Effect and which
have not been disclosed in this Agreement, the Disclosure
Schedule or the SEC Documents or otherwise disclosed to the
Purchaser by the Seller in writing.
SECTION 3.12. Delivery of Certain Documents. The
Seller has delivered to the Purchaser a true and complete copy of
the most recent draft of each of the Atlanta Asset Purchase
Agreement, the Equipment Purchase Agreement, the Credit
Agreement, the Ericsson Agreement and all exhibits, schedules and
agreements related thereto or in any way entered into in
connection with the transactions contemplated thereby.
SECTION 3.13. Private Placement. Assuming the
accuracy of the representations and warranties of the Purchaser
contained in Sections 4.05 and 4.06, the offer and sale of the
Shares to the Purchaser pursuant to this Agreement is exempt from
registration under the Securities Act.
SECTION 3.14. FCC Regulations. After giving effect to
the issuance of Shares to the Purchaser, the ownership of capital
stock of the Seller by aliens or their representatives or by a
foreign government or representative thereof or by any
corporation organized under the laws of a foreign country does
not exceed the limitations set forth in rules and regulations of
the United States Federal Communications Commission.
SECTION 3.15. Brokers. No broker, finder or
investment banker is entitled to any brokerage, finder's or other
fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or
on behalf of the Seller.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to the Seller to enter into this
Agreement, the Purchaser hereby represents and warrants to the
Seller as follows:
SECTION 4.01. Organization and Authority of the
Purchaser. The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State
of South Carolina and has all necessary corporate power and
authority to enter into this Agreement and the Escrow Agreement,
to carry out its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and the Escrow Agreement
by the Purchaser, the performance by the Purchaser of its
obligations hereunder and thereunder and the consummation by the
Purchaser of the transactions contemplated hereby and thereby
have been duly authorized by all requisite action on the part of
the Purchaser. This Agreement has been, and upon its execution
the Escrow Agreement will be, duly executed and delivered by the
Purchaser, and (assuming due authorization, execution and
delivery by the Seller) this Agreement constitutes, and upon its
execution the Escrow Agreement will constitute, a legal, valid
and binding obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms.
SECTION 4.02. No Conflict. Assuming compliance with
the notification requirements of the HSR Act and the making and
obtaining of all filings, notifications, consents, approvals,
authorizations and other actions referred to in Section 4.03,
except as may result from any facts or circumstances relating
solely to the Seller, the execution, delivery and performance of
this Agreement and the Escrow Agreement by the Purchaser do not
and will not, as of the date hereof and as of the Closing Date,
(a) violate, conflict with or result in the breach of any
provision of the Articles of Incorporation or By-laws of the
Purchaser, (b) conflict with or violate any Law or Governmental
Order applicable to the Purchaser or (c) conflict with, or result
in any breach of, constitute a default (or event which with the
giving of notice or lapse or time, or both, would become a
default) under, require any consent under, or give to others any
rights of termination, amendment, acceleration, suspension,
revocation, or cancellation of, or result in the creation of any
Encumbrance on any of the assets or properties of the Purchaser
pursuant to, any note, bond, mortgage or indenture, contract,
agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which the Purchaser is a party or by
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which any of such assets or properties are bound or affected,
which in any such case would have a material adverse effect on
the ability of the Purchaser to consummate the transactions
contemplated by this Agreement or the Escrow Agreement.
SECTION 4.03. Governmental Consents and Approvals.
The execution, delivery and performance of this Agreement and the
Escrow Agreement by the Purchaser do not and will not require any
consent, approval, authorization or other order of, action by,
filing with, or notification to, any Governmental Authority,
except pursuant to the notification requirements of the HSR Act.
SECTION 4.04. Litigation. There are no Actions by or
against the Purchaser, pending before any Governmental Authority
(or, to the best knowledge of the Purchaser, threatened to be
brought by or before any Governmental Authority) that could
reasonably be expected to affect the legality, validity or
enforceability of this Agreement or the Escrow Agreement or the
consummation of the transactions contemplated hereby or thereby.
The Purchaser is not subject to any Governmental Order (nor, to
the best knowledge of the Purchaser, are there any such
Governmental Orders threatened to be imposed by any Governmental
Authority), which could reasonably be expected to affect the
legality, validity or enforceability of this Agreement or the
Escrow Agreement or the consummation of the transactions
contemplated hereby or thereby.
SECTION 4.05. Investment Purpose. The Purchaser is
acquiring the Shares solely for the purpose of investment and not
with a view to, or for offer or sale in connection with, any
distribution thereof.
SECTION 4.06. Accredited Investor. The Purchaser is
an "accredited investor" within the meaning of Rule 501 under the
Securities Act.
SECTION 4.07. Brokers. No broker, finder or
investment banker is entitled to any brokerage, finder's or other
fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or
on behalf of the Purchaser.
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ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Filing of Certificate of Designation.
The Seller covenants and agrees that, as promptly as practicable
after the stockholder approval referred to in Section 6.02(g) is
obtained and, in any event, prior to the Closing, the Seller will
file the Certificate of Designation with the Secretary of State
of the State of Delaware in accordance with the Delaware General
Corporation Law.
SECTION 5.02. Treatment of Shares as Equity. The
Seller covenants and agrees that it will treat the Shares as
equity, and not as debt, for accounting and tax purposes and
further covenants and agrees that it will not take any action or
position that is inconsistent with such treatment.
SECTION 5.03. Regulatory and Other Authorizations;
Notices and Consents. (a) The Seller and the Purchaser shall
use all reasonable efforts to obtain all authorizations,
consents, orders and approvals of all Governmental Authorities
and officials that may be or become necessary for their execution
and delivery of, and the performance of their respective
obligations pursuant to, this Agreement and the Escrow Agreement.
Each party hereto agrees to make an appropriate filing pursuant
to the HSR Act, if required, with respect to the conversion of
the Shares at such times as the Purchaser may request and to
supply as promptly as practicable to the appropriate Governmental
Authorities any additional information and documentary material
that may be requested pursuant to the HSR Act.
(b) The Seller shall or shall cause the Subsidiaries
to give promptly such notices to third parties and use its or
their reasonable efforts to obtain such third party consents as
are necessary in connection with the transactions contemplated by
this Agreement.
(c) The Purchaser shall cooperate and use all
reasonable efforts to assist the Seller in giving such notices
and obtaining such consents; provided, however, that the
Purchaser shall have no obligation to give any guarantee or other
consideration of any nature in connection with any such notice or
consent or to consent to any change in the terms of any agreement
or arrangement which the Purchaser in its sole and absolute
discretion may deem adverse to the interests of the Purchaser.
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SECTION 5.04. Notice of Developments. (a) Prior to
the Closing, the Seller shall promptly notify the Purchaser in
writing of (i) all events, circumstances, facts and occurrences
arising subsequent to the date of this Agreement which could
reasonably be expected to result in any breach of a
representation or warranty or covenant of the Seller in this
Agreement or which could reasonably be expected to have the
effect of making any representation or warranty of the Seller in
this Agreement untrue or incorrect in any respect and (ii) all
other developments material to the Seller and the Subsidiaries,
taken as a whole, affecting the assets, Liabilities, business,
financial condition, operations, results of operations or
prospects of the Seller, any Subsidiary or the Business.
(b) Prior to the Closing, the Purchaser shall
promptly notify the Seller in writing of all events,
circumstances, facts and occurrences arising subsequent to the
date of this Agreement which could reasonably be expected to
result in any breach of a representation or warranty or covenant
of the Purchaser in this Agreement or which could reasonably be
expected to have the effect of making any representation or
warranty of the Purchaser in this Agreement untrue or incorrect
in any respect.
SECTION 5.05. Registration Rights. Effective at the
Closing, the Purchaser and the Seller shall each have the rights
and obligations set forth in Annex II.
SECTION 5.06. Resale Restrictions. (a) The Purchaser
acknowledges that the Shares and the shares of Common Stock into
which the Shares are convertible have not been registered under
the Securities Act or any state securities law, and hereby agrees
not to offer, sell or otherwise transfer, pledge or hypothecate
such shares unless and until registered under the Securities Act
and any applicable state securities law or unless such offer,
sale, transfer, pledge or hypothecation is exempt from
registration or is otherwise in compliance with the Securities
Act and such laws.
(b) During the period ending one year after the
Closing Date, the Purchaser shall not, without the prior written
consent of the Seller, (i) offer, pledge, sell or otherwise
transfer or dispose of, directly or indirectly, any Shares or any
shares of Common Stock into which any of such Shares may be
converted, or (ii) enter into any swap or similar agreement that
transfers, in whole or in part, any of the economic consequences
of ownership of such Shares or any shares of Common Stock into
which such Shares may be converted, whether any such transaction
described in clause (i) or (ii) above is to be settled by
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delivery of Shares or such other securities, in cash or
otherwise, other than a pledge, grant of security interest or
other encumbrance effected in a bona fide transaction with an
unrelated and unaffiliated pledgee; provided, however, that the
Purchaser may at any time enter into any such transaction
described in clause (i) or (ii) above with an Affiliate of the
Purchaser.
SECTION 5.07. Registration of Shares. The Seller
shall, upon issuance of the Shares and prior to the delivery of
stock certificates evidencing the Shares pursuant to Section
2.05, register the Shares in the name of the Purchaser in the
stock records of the Seller.
SECTION 5.08. Delivery of Certain Documents. The
Seller shall deliver to the Purchaser true and correct copies of
the Atlanta Asset Purchase Agreement, the Equipment Purchase
Agreement, the Credit Agreement, the Ericsson Agreement and all
exhibits, schedules and agreements related thereto or in any way
entered into in connection with the transactions contemplated
thereby, as soon as practicable following the execution and
delivery thereof by the parties thereto.
SECTION 5.09. Seller Stockholders' Meeting. The
Seller shall call and hold a meeting of its stockholders as
promptly as practicable after the execution of this Agreement to
consider and vote upon (i) a proposal to increase the authorized
number of shares of Common Stock and (ii) the issuance and terms
of the Shares, including, without limitation, the convertibility
thereof into shares of Common Stock. The Board of Directors of
the Seller shall recommend approval of such matters, and the
Seller shall take all lawful action to solicit such approval.
The Seller represents and warrants to the Purchaser that
stockholders Beneficially Owning more than 50% of the outstanding
shares of Common Stock have agreed to vote in favor of such
approval.
SECTION 5.10. Certain Information. (a) For a period
of at least three years from the date of this Agreement, the
Seller shall file all reports and other information required to
be filed by Section 13 or 15(d) under the Exchange Act, as the
case may be, as shall be necessary in order that the conditions
to the availability of Rule 144 under the Securities Act in
connection with any Sale of shares of Common Stock by the
Purchaser shall be met. For so long as the Seller is required to
file reports and other information pursuant to Section 13 or
15(d) of the Exchange Act, the Seller shall provide the Purchaser
with a copy of each such report and other information.
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(b) For purposes of this Agreement, "Sale" means any
sale, assignment, transfer, distribution or other disposition of
shares of Common Stock or of a participation therein, whether
voluntarily or by operation of law.
SECTION 5.11. Conduct of Business of the Seller.
Prior to the Closing, the Seller agrees (except to the extent
that the Purchaser shall otherwise consent in writing) as
follows:
(a) Dividends; Changes in Stock. The Seller shall
not take or permit to be taken any action that would result in an
adjustment to the Conversion Price (as defined in the Certificate
of Designation) pursuant to Section (7)(d) of the Certificate of
Designation if the Shares were issued and outstanding at the time
of such action.
(b) Certain Matters. The Seller shall not take or
permit to be taken any action in respect of which holders of
Shares would be entitled to vote pursuant to Section (9) of the
Certificate of Designation if the Shares were outstanding at the
time of such action.
SECTION 5.12. Further Action. Each of the parties
hereto shall use all reasonable efforts to take, or cause to be
taken, all appropriate action, do or cause to be done all things
necessary, proper or advisable under applicable Law, and execute
and deliver such documents and other papers, as may be required
to carry out the provisions of this Agreement and consummate and
make effective the transactions contemplated by this Agreement.
ARTICLE VI
CONDITIONS TO CLOSING
SECTION 6.01. Conditions to Obligations of the Seller.
The obligations of the Seller to consummate the transactions
contemplated by this Agreement shall be subject to the
satisfaction (or waiver by the Seller, at its sole discretion),
at or prior to the Closing, of each of the following conditions:
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(a) Representations, Warranties and Covenants. The
representations and warranties of the Purchaser contained in this
Agreement shall have been true and correct in all material
respects when made and shall be true and correct in all material
respects as of the Closing, with the same force and effect as if
made as of the Closing, other than such representations and
warranties as are made as of another date, which shall be true
and correct as of such date (provided, however, that if any
portion of any representation or warranty is already qualified by
materiality, for purposes of determining whether this Section
6.01(a) has been satisfied with respect to such portion of such
representation or warranty, such portion of such representation
or warranty as so qualified must be true and correct in all
respects), and the covenants and agreements contained in this
Agreement to be complied with by the Purchaser at or before the
Closing shall have been complied with in all material respects,
and the Seller shall have received a certificate from the
Purchaser to such effect signed by a duly authorized officer
thereof;
(b) No Proceeding or Litigation. No Action shall
have been commenced by or before any Governmental Authority
against either the Seller or the Purchaser, seeking to restrain
or materially and adversely alter the transactions contemplated
by this Agreement which, in the reasonable, good faith
determination of the Seller, is likely to render it impossible or
unlawful to consummate such transactions; provided, however, that
the provisions of this Section 6.01(b) shall not apply if the
Seller has directly or indirectly solicited or encouraged any
such Action;
(c) Resolutions of the Purchaser. The Seller shall
have received a true and complete copy, certified by the
Secretary or an Assistant Secretary of the Purchaser, of the
resolutions duly and validly adopted by the Board of Directors of
the Purchaser evidencing its authorization, if required by law,
of the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby;
(d) Incumbency Certificate of the Purchaser. The
Seller shall have received a certificate of the Secretary or an
Assistant Secretary of the Purchaser certifying the names and
signatures of the officers of the Purchaser authorized to sign
this Agreement and the other documents to be delivered hereunder;
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(e) Legal Opinion. The Seller shall have received
from McNair Law Firm, P.A., counsel to the Purchaser, a legal
opinion, addressed to the Seller and dated the Closing Date, in
form and substance reasonably satisfactory to the Seller, as to
(i) the due authorization, execution and delivery by the
Purchaser of this Agreement and the Escrow Agreement and (ii) the
enforceability against the Purchaser of this Agreement and the
Escrow Agreement (assuming New York law is identical in all
respects to South Carolina law);
(f) Consents and Approvals. The Purchaser and the
Seller shall have received, each in form and substance reasonably
satisfactory to the Seller, all authorizations, consents, orders
and approvals of all Governmental Authorities and officials and
all third party consents necessary or desirable for the
consummation of the transactions contemplated by this Agreement;
(g) Related Transactions. Each of the Ericsson
Closing and the Atlanta MTA Acquisition Closing shall have
occurred or shall occur simultaneously with the Closing; and
(h) Commercial Agreements. Ericsson Inc. and the
Seller shall have executed and delivered the Equipment Purchase
Agreement.
SECTION 6.02. Conditions to Obligations of the
Purchaser. The obligations of the Purchaser to consummate the
transactions contemplated by this Agreement shall be subject to
the satisfaction (or waiver by the Purchaser, at its sole
discretion), at or prior to the Closing, of each of the following
conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of the Seller contained in this
Agreement shall have been true and correct in all material
respects when made and shall be true and correct in all material
respects as of the Closing with the same force and effect as if
made as of the Closing, other than such representations and
warranties as are made as of another date, which shall be true
and correct as of such date (provided, however, that if any
portion of any representation or warranty is already qualified by
materiality, for purposes of determining whether this Section
6.02(a) has been satisfied with respect to such portion of such
representation or warranty, such portion of such representation
or warranty as so qualified must be true and correct in all
respects), and the covenants and agreements contained in this
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Agreement to be complied with by the Seller at or before the
Closing shall have been complied with in all material respects,
and the Purchaser shall have received a certificate of the Seller
to such effect signed by a duly authorized officer thereof;
(b) No Proceeding or Litigation. No Action shall
have been commenced by or before any Governmental Authority
against either the Seller or the Purchaser, seeking to restrain
or materially and adversely alter the transactions contemplated
by this Agreement which, in the reasonable, good faith
determination of the Purchaser, is likely to render it impossible
or unlawful to consummate such transactions or which could have a
Material Adverse Effect; provided, however, that the provisions
of this Section 6.02(b) shall not apply if the Purchaser has
directly or indirectly solicited or encouraged any such Action;
(c) Resolutions of the Seller. The Purchaser shall
have received a true and complete copy, certified by the
Secretary or an Assistant Secretary of the Seller, of the
resolutions duly and validly adopted by the Board of Directors of
the Seller and, to the extent that such authorization is
necessary, the shareholders of the Seller evidencing their
authorization of the execution and delivery of this Agreement,
the issuance and terms of the Shares including, without
limitation, the convertibility thereof into shares of Common
Stock, and the consummation of the transactions contemplated
hereby;
(d) Incumbency Certificate of the Seller. The
Purchaser shall have received a certificate of the Secretary or
an Assistant Secretary of the Seller certifying the names and
signatures of the officers of the Seller authorized to sign this
Agreement and the other documents to be delivered hereunder;
(e) Legal Opinion. The Purchaser shall have
received from Hogan & Hartson L.L.P., counsel to the Seller, a
legal opinion, addressed to the Purchaser and dated the Closing
Date, in form and substance reasonably satisfactory to the
Purchaser, as to (i) the due authorization, execution and
delivery by the Seller of this Agreement and the Escrow
Agreement, (ii) the enforceability against the Seller of this
Agreement and the Escrow Agreement and (iii) the validity of the
Shares, the due authorization of the shares of Common Stock into
which the Shares may be converted and related matters;
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(f) Consents and Approvals. The Purchaser and the
Seller shall have received, each in form and substance reasonably
satisfactory to the Purchaser, all authorizations, consents,
orders and approvals of all Governmental Authorities and
officials and all third party consents necessary or desirable for
the consummation of the transactions contemplated by this
Agreement;
(g) Stockholder Approval. The stockholders of the
Seller shall have approved (i) the increase in the authorized
number of shares of Common Stock and (ii) the issuance and terms
of the Shares, including the convertibility thereof into shares
of Common Stock;
(h) Related Transactions. (i) Each of the Ericsson
Closing and the Atlanta MTA Acquisition Closing shall have
occurred or shall occur simultaneously with the Closing and (ii)
the Purchaser shall have received true and correct copies of the
Atlanta Asset Purchase Agreement, the Equipment Purchase
Agreement, the Credit Agreement, the Ericsson Agreement and all
exhibits, schedules and agreements related thereto or in any way
entered into in connection with the transactions contemplated
thereby, which shall be substantially identical to the drafts of
each such agreement delivered pursuant to Section 3.12;
(i) Commercial Agreements. Ericsson Inc. and the
Seller shall have executed and delivered the Equipment Purchase
Agreement;
(j) Organizational Documents. The Purchaser shall
have received a copy of (i) the Certificate of Incorporation, as
amended, of the Seller, certified by the Secretary of State of
the State of Delaware, as of a date not earlier than five
Business Days prior to the Closing Date and accompanied by a
certificate of the Secretary or Assistant Secretary of the
Seller, dated as of the Closing Date, stating that no amendments
have been made to such Certificate of Incorporation since such
date, and (ii) the By-laws of the Seller, certified by the
Secretary or Assistant Secretary of the Seller;
(k) Good Standing. The Purchaser shall have
received a good standing certificate for the Seller from the
Secretary of State of the State of Delaware, dated as of a date
not earlier than five Business Days prior to the Closing Date and
accompanied by a bring-down certificate dated the Closing Date;
and
(l) No Material Adverse Effect. No event or events
shall have occurred which, individually or in the aggregate,
have, or could have, a Material Adverse Effect.
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ARTICLE VII
INDEMNIFICATION
SECTION 7.01. Survival of Representations and
Warranties. (a) The representations and warranties of the
Seller contained in this Agreement and in the Exhibits to this
Agreement and the Disclosure Schedule (collectively, the
"Acquisition Documents"), shall survive the Closing until the
second anniversary of the Closing Date. Neither the period of
survival nor the liability of the Seller with respect to the
Seller's representations and warranties shall be reduced by any
investigation made at any time by or on behalf of the Purchaser.
If written notice of a claim has been given prior to the
expiration of the applicable representations and warranties by
the Purchaser to the Seller, then the relevant representations
and warranties shall survive as to such claim, until such claim
has been finally resolved.
(b) The representations and warranties of the
Purchaser contained in the Acquisition Documents shall survive
the Closing until the second anniversary of the Closing Date.
Neither the period of survival nor the liability of the Purchaser
with respect to the Purchaser's representations and warranties
shall be reduced by any investigation made at any time by or on
behalf of the Seller. If written notice of a claim has been
given prior to the expiration of the applicable representations
and warranties by the Seller to the Purchaser, then the relevant
representations and warranties shall survive as to such claim,
until such claim has been finally resolved.
SECTION 7.02. Indemnification. (a)(i) The Purchaser,
its successors and assigns, and the stockholders, officers,
directors, employees, Affiliates and agents of the Purchaser and
its successors and assigns shall be indemnified and held harmless
by the Seller for any and all Liabilities, losses, damages,
claims, costs and expenses, interest, awards, judgments and
penalties (including, without limitation, attorneys' and
consultants' fees and expenses) actually suffered or incurred by
them (including, without limitation, any Action brought or
otherwise initiated by any of them) (hereinafter a "Loss"),
arising out of or resulting from:
(A) the breach of any representation or warranty made by
the Seller contained in the Acquisition Documents; or
(B) the breach of any covenant or agreement by the Seller
contained in the Acquisition Documents.
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(ii) The Seller, its successors and assigns, and the
stockholders, officers, directors, employees, Affiliates and
agents of the Seller and its successors and assigns shall be
indemnified and held harmless by the Purchaser for any and all
Losses actually suffered or incurred by them, arising out of or
resulting from:
(A) the breach of any representation or warranty made by
the Purchaser in the Acquisition Documents; or
(B) the breach of any covenant or agreement by the
Purchaser contained in the Acquisition Documents.
To the extent that the Seller's or the Purchaser's undertakings
set forth in this Section 7.02 may be unenforceable, the Seller
or the Purchaser, as the case may be, shall contribute the
maximum amount that it is permitted to contribute under
applicable law to the payment and satisfaction of all Losses
incurred by the Purchaser or the Seller, as the case may be.
(b) An indemnified party shall give the party from
whom indemnification is sought notice of any matter which an
indemnified party has determined has given or could give rise to
a right of indemnification under this Agreement, within 60 days
of such determination, stating the amount of the Loss, if known,
and method of computation thereof, and containing a reference to
the provisions of this Agreement in respect of which such right
of indemnification is claimed or arises; provided, however, that
the failure to provide such notice shall not release the
indemnifying party from any of its obligations under this
Article VII except to the extent the indemnifying party is
materially prejudiced by such failure and shall not relieve the
indemnifying party from any other obligation or Liability that it
may have to any indemnified party otherwise than under this
Article VII. The obligations and Liabilities of an indemnifying
party under this Article VII with respect to Losses arising from
claims of any third party which are subject to the
indemnification provided for in this Article VII ("Third Party
Claims") shall be governed by and contingent upon the following
additional terms and conditions: If an indemnified party shall
receive notice of any Third Party Claim, the indemnified party
shall give the indemnifying party notice of such Third Party
Claim within 30 days of the receipt by the indemnified party of
such notice; provided, however, that the failure to provide such
notice shall not release the indemnifying party from any of its
obligations under this Article VII except to the extent the
indemnifying party is materially prejudiced by such failure and
shall not relieve the indemnifying party from any other
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obligation or Liability that it may have to any indemnified party
otherwise than under this Article VII. If the indemnifying party
acknowledges in writing its obligation to indemnify the
indemnified party hereunder against any Losses that may result
from such Third Party Claim, then the indemnifying party shall be
entitled to assume and control the defense of such Third Party
Claim at its expense and through counsel of its choice if it
gives notice of its intention to do so to the indemnified party
within five days of the receipt of such notice from the
indemnified party; provided, however, that if there exists or is
reasonably likely to exist a conflict of interest that would make
it inappropriate in the judgment of the indemnified party, in its
sole and absolute discretion, for the same counsel to represent
both the indemnified party and the indemnifying party, then the
indemnified party shall be entitled to retain its own counsel, in
each jurisdiction for which the indemnified party determines
counsel is required, at the expense of the indemnifying party.
In the event the indemnifying party exercises the right to
undertake any such defense against any such Third Party Claim as
provided above, the indemnified party shall cooperate with the
indemnifying party in such defense and make available to the
indemnifying party, at the indemnifying party's expense, all
witnesses, pertinent records, materials and information in the
indemnified party's possession or under the indemnified party's
control relating thereto as is reasonably required by the
indemnifying party. Similarly, in the event the indemnified
party is, directly or indirectly, conducting the defense against
any such Third Party Claim, the indemnifying party shall
cooperate with the indemnified party in such defense and make
available to the indemnified party, at the indemnifying party's
expense, all such witnesses, pertinent records, materials and
information in the indemnifying party's possession or under the
indemnifying party's control relating thereto as is reasonably
required by the indemnified party. No such Third Party Claim may
be settled by the indemnifying party or the indemnified party
without the prior written consent of the other.
SECTION 7.03. Limits on Indemnification.
Notwithstanding anything to the contrary contained in this
Agreement, the maximum amount of indemnifiable Losses which may
be recovered from an indemnifying party arising out of or
resulting from the causes enumerated in Section 7.02 shall be an
amount equal to the Purchase Price.
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ARTICLE VIII
TERMINATION AND WAIVER
SECTION 8.01. Termination. This Agreement may be
terminated at any time prior to the Closing:
(a) by the Purchaser if, between the date hereof and
the time scheduled for the Closing: (i) an event or condition
occurs that has resulted in a Material Adverse Effect, (ii) any
representation or warranty of the Seller contained in this
Agreement shall not have been true and correct in all material
respects when made, (iii) the Seller shall not have complied in
all material respects with any covenant or agreement to be
complied with by it and contained in this Agreement; or (iv) the
Seller or any Subsidiary makes a general assignment for the
benefit of creditors, or any proceeding shall be instituted by or
against the Seller or any Subsidiary seeking to adjudicate any of
them a bankrupt or insolvent, or seeking liquidation, winding up
or reorganization, arrangement, adjustment, protection, relief or
composition of its debts under any Law relating to bankruptcy,
insolvency or reorganization; or
(b) by the Seller if, between the date hereof and
the time scheduled for the Closing: (i) any representation or
warranty of the Purchaser contained in this Agreement shall not
have been true and correct in all material respects when made,
(ii) the Purchaser shall not have complied in all material
respects with any covenant or agreement to be complied with by it
and contained in this Agreement; or (iii) the Purchaser makes a
general assignment for the benefit of creditors, or any
proceeding shall be instituted by or against the Purchaser
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up or reorganization, arrangement,
adjustment, protection, relief or composition of its debts under
any Law relating to bankruptcy, insolvency or reorganization; or
(c) by either the Seller or the Purchaser if the
Closing shall not have occurred on or prior to September 30,
1996; or
(d) by either the Purchaser or the Seller in the
event that any Governmental Authority shall have issued an order,
decree or ruling or taken any other action restraining, enjoining
or otherwise prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other action shall
have become final and nonappealable; or
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(e) by the mutual written consent of the Seller and
the Purchaser.
SECTION 8.02. Effect of Termination. (a) In the
event of termination of this Agreement as provided in Section
8.01, this Agreement shall forthwith become void and there shall
be no liability on the part of either party hereto except that
nothing herein shall relieve either party from liability for any
breach of this Agreement.
(b) In the event of termination of this Agreement as
provided in Section 8.01, the Escrow Agent shall, pursuant to the
provisions of the Escrow Agreement, return the Purchase Price to
the Purchaser.
SECTION 8.03. Waiver. Either party to this Agreement
may (a) extend the time for the performance of any of the
obligations or other acts of the other party, (b) waive any
inaccuracies in the representations and warranties of the other
party contained herein or in any document delivered by the other
party pursuant hereto or (c) waive compliance with any of the
agreements or conditions of the other party contained herein.
Any such extension or waiver shall be valid only if set forth in
an instrument in writing signed by the party to be bound thereby.
Any waiver of any term or condition shall not be construed as a
waiver of any subsequent breach or a subsequent waiver of the
same term or condition, or a waiver of any other term or
condition, of this Agreement. The failure of any party to assert
any of its rights hereunder shall not constitute a waiver of any
of such rights.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. Expenses. Except as otherwise specified
in this Agreement, all costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors
and accountants, incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses, whether or not the Closing
shall have occurred.
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SECTION 9.02. Notices. All notices, requests, claims,
demands and other communications hereunder shall be in writing
and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by courier
service, by telecopy or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at
the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this
Section 9.02):
(a) if to the Seller:
InterCel, Inc.
1239 O.G. Skinner Drive
West Point, Georgia 31833
Telecopy: (706) 645-2329
Attention: Fred G. Astor, Jr.
with a copy (which shall not constitute notice) to:
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Telecopy: (202) 637-5910
Attention: Kimberley E. Thompson, Esq.
(b) if to the Purchaser:
MPX Systems, Inc.
c/o SCANA Corporation
1426 Main Street
Columbia, South Carolina 29201
Telecopy: (803) 733-2887
Attention: Kevin Marsh
with a copy (which shall not constitute notice) to:
McNair Law Firm, P.A.
1301 Gervais Street
Columbia, South Carolina 29201
Telecopy: (803) 376-2277
Attention: John W. Currie, Esq.
SECTION 9.03. Public Announcements. No party to this
Agreement shall make, or cause to be made, any press release or
public announcement or otherwise communicate with any news media
in respect of this Agreement or the transactions contemplated
hereby without the prior written consent of the other party
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(which shall not be unreasonably withheld or delayed), and the
parties shall cooperate as to the timing and contents of any such
press release or public announcement; provided, however, that
with respect to any disclosure required by law or by a listing
agreement with the National Association of Securities Dealers,
Inc. Automated Quotation System National Market System or any
national securities exchange to which the Purchaser or the Seller
is a party, the party required to make such disclosure shall use
its best efforts to consult with the other party as to the timing
and contents of such disclosure and to obtain such consent prior
to the time such disclosure is required to be made.
SECTION 9.04. Headings. The descriptive headings
contained in this Agreement are for convenience of reference only
and shall not affect in any way the meaning or interpretation of
this Agreement.
SECTION 9.05. Severability. If any term or other
provision of this Agreement is invalid, illegal or incapable of
being enforced by any Law or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic and legal substance of
the transactions contemplated hereby are 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 in a mutually
acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest
extent possible.
SECTION 9.06. Entire Agreement. This Agreement and
the Escrow Agreement constitute the entire agreement of the
parties hereto with respect to the subject matter hereof and
thereof and supersede all prior agreements and undertakings, both
written and oral, between the Seller and the Purchaser with
respect to the subject matter hereof and thereof.
SECTION 9.07. Assignment. This Agreement may not be
assigned by operation of Law or otherwise without the express
written consent of the Seller and the Purchaser (which consent
may be granted or withheld in the sole discretion of the Seller
or the Purchaser); provided, however, that the Purchaser may,
without the consent of the Seller, assign this Agreement prior to
the Closing to SCANA Corporation or to a subsidiary controlled by
SCANA Corporation, but no such assignment shall relieve the
Purchaser of any of its obligations under this Agreement.
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SECTION 9.08. No Third Party Beneficiaries. Except
for the provisions of Article VII relating to indemnified
parties, this Agreement shall be binding upon and inure solely to
the benefit of the parties hereto and their successors and
permitted assigns and nothing herein, express or implied, is
intended to or shall confer upon any other Person any legal or
equitable right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.
SECTION 9.09. Amendment. This Agreement may not be
amended or modified except (a) by an instrument in writing signed
by, or on behalf of, the Seller and the Purchaser or (b) by a
waiver in accordance with Section 8.03.
SECTION 9.10. Governing Law. This Agreement shall be
governed by the laws of the State of New York.
SECTION 9.11. 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.
SECTION 9.12. 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.
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IN WITNESS WHEREOF, the Seller and the Purchaser have
caused this Agreement to be executed as of the date first written
above by their respective officers thereunto duly authorized.
INTERCEL, INC.
By: /s/ Allen E. Smith
Name: Allen E. Smith
Title: President
MPX SYSTEMS, INC.
By: /s/ W.B. Timmerman
Name: W.B. Timmerman
Title: President
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EXHIBIT 2.04
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of [_________], 1996 (this
"Agreement"), among INTERCEL, INC., a Delaware corporation (the
"Seller"), MPX SYSTEMS, INC., a South Carolina corporation (the
"Purchaser"), and ________________, a ________________ (the
"Escrow Agent").
W I T N E S S E T H:
WHEREAS, the Purchaser and the Seller have entered into
a Stock Purchase Agreement, dated as of March 4, 1996 (the
"Purchase Agreement"; terms defined in the Purchase Agreement and
not otherwise defined herein being used herein as therein
defined), pursuant to which the Purchaser has agreed to purchase
from the Seller, and the Seller has agreed to sell to the
Purchaser, the Shares;
WHEREAS, it is contemplated under the Purchase
Agreement that the Purchaser will deposit or cause to be
deposited into escrow the sum of $75,000,000 in cash (the "Escrow
Amount"), to be held and disbursed by the Escrow Agent in
accordance with this Agreement; and
WHEREAS, a copy of the Purchase Agreement has been
delivered to the Escrow Agent, and the Escrow Agent is willing to
act as the Escrow Agent hereunder;
NOW, THEREFORE, in consideration of the foregoing and
the mutual agreements contained herein and in the Purchase
Agreement, and intending to be legally bound hereby, the parties
hereby agree as follows:
1. Appointment and Agreement of Escrow Agent. The
Purchaser and the Seller hereby appoint the Escrow Agent to serve
as, and the Escrow Agent hereby agrees to act as, escrow agent
upon the terms and conditions of this Agreement.
2. Establishment of the Escrow Fund. (a) Pursuant
to Section 2.04 of the Purchase Agreement, the Purchaser shall
deliver to the Escrow Agent on the date hereof the Escrow Amount.
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The Escrow Agent shall hold the Escrow Amount and all interest
and other amounts earned thereon (the "Escrow Fund") in escrow
pursuant to this Agreement.
(b) Each of the Purchaser and the Seller confirms to
the Escrow Agent and to each other that the Escrow Fund is free
and clear of all Encumbrances except as may be created by this
Agreement and the Purchase Agreement.
3. Distributions from the Escrow Fund. (a) Upon
the satisfaction or waiver of all conditions to the Closing set
forth in Article VI of the Purchase Agreement, and upon receipt
by the Purchaser of the stock certificates evidencing the Shares
as contemplated by Section 2.05 of the Purchase Agreement, the
Purchaser shall notify the Escrow Agent in writing to such
effect, and the Escrow Agent shall, as promptly as practicable
after its receipt of such notice, liquidate all investments in
the Escrow Fund and pay in full to the Seller at the Closing in
immediately available funds all such amounts as shall be received
upon the liquidation of such investments (and any and all other
amounts then on deposit in the Escrow Fund).
(b) Upon the termination of the Purchase Agreement,
the Seller or the Purchaser shall notify the Escrow Agent in
writing to such effect, and the Escrow Agent shall, as promptly
as practicable after its receipt of such notice, liquidate all
investments in the Escrow Fund and pay in full to the Purchaser
in immediately available funds all such amounts as shall be
received upon the liquidation of such investments (and any and
all other amounts then on deposit in the Purchaser Escrow Fund).
4. Maintenance of the Escrow Fund; Termination of
the Escrow Fund. (a) The Escrow Agent shall continue to
maintain the Escrow Fund until the earlier of (i) the time at
which the Escrow Fund is disbursed in accordance with Section 3
and (ii) the termination of this Agreement.
(b) The Escrow Agent shall invest and reinvest
moneys on deposit in the Escrow Fund, unless joint written notice
to the contrary is received from the Seller and the Purchaser, in
any combination of the following: (a) readily marketable direct
obligations of the Government of the United States or any agency
or instrumentality thereof or readily marketable obligations
unconditionally guaranteed by the full faith and credit of the
Government of the United States, (b) insured certificates of
deposit of, or time deposits with, any commercial bank that is a
member of the Federal Reserve System and which issues (or the
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parent of which issues) commercial paper rated as described in
clause (c), is organized under the laws of the United States or
any State thereof and has combined capital and surplus of at
least $1 billion or (c) commercial paper in an aggregate amount
of no more than $1,000,000 per issuer outstanding at any time,
issued by any corporation organized under the laws of any State
of the United States, rated at least "Prime-1" (or the then
equivalent grade) by Moody's Investors Services, Inc. or "A-1"
(or the then equivalent grade) by Standard & Poors Ratings Group.
5. Assignment; Successors. This Agreement may not
be assigned by operation of Law or otherwise without the express
written consent of the other parties hereto (which consent may be
granted or withheld in the sole discretion of such other
parties); provided, however, that the Purchaser may, without the
consent of the other parties, assign this Agreement prior to the
Closing to SCANA Corporation or to a subsidiary controlled by
SCANA Corporation to which the Purchaser has assigned any of its
rights under the Purchase Agreement, but no such assignment shall
relieve the Purchaser of any of its obligations under this
Agreement. This Agreement shall be binding upon and inure solely
to the benefit of the parties hereto and their permitted assigns.
6. Escrow Agent. (a) Except as expressly
contemplated by this Agreement or by joint written instructions
from the Purchaser and the Seller, the Escrow Agent shall not
sell, transfer or otherwise dispose of in any manner all or any
portion of the Escrow Fund, except pursuant to an order of a
court of competent jurisdiction.
(b) The duties and obligations of the Escrow Agent
shall be determined solely by this Agreement, and the Escrow
Agent shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Agreement.
(c) In the performance of its duties hereunder, the
Escrow Agent shall be entitled to rely upon any document,
instrument or signature believed by it in good faith to be
genuine and signed by any party hereto or an authorized officer
or agent thereof, and shall not be required to investigate the
truth or accuracy of any statement contained in any such document
or instrument. The Escrow Agent may assume that any Person
purporting to give any notice in accordance with the provisions
of this Agreement has been duly authorized to do so.
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(d) The Escrow Agent shall not be liable for any
error of judgment, or any action taken, suffered or omitted to be
taken, hereunder except in the case of its gross negligence, bad
faith or willful misconduct. The Escrow Agent may consult with
counsel of its own choice and shall have full and complete
authorization and protection for any action taken or suffered by
it hereunder in good faith and in accordance with the opinion of
such counsel.
(e) The Escrow Agent shall have no duty as to the
collection or protection of the Escrow Fund or income thereon,
nor as to the preservation of any rights pertaining thereto,
beyond the safe custody of any such property actually in its
possession.
(f) As compensation for its services to be rendered
under this Agreement, for each year or any portion thereof, the
Escrow Agent shall receive a fee in the amount specified in
Schedule A to this Agreement and shall be reimbursed upon request
for all expenses, disbursements and advances, including
reasonable fees of outside counsel, if any, incurred or made by
it in connection with the preparation of this Agreement and the
carrying out of its duties under this Agreement. All such fees
and expenses shall be the responsibility of the Seller.
(g) The Seller shall reimburse and indemnify the
Escrow Agent for, and hold it harmless against, any loss,
liability or expense, including, without limitation, reasonable
attorneys' fees, incurred without gross negligence, bad faith or
willful misconduct on the part of the Escrow Agent arising out
of, or in connection with the acceptance of, or the performance
of, its duties and obligations under this Agreement; provided
that the Purchaser shall reimburse and indemnify the Escrow Agent
for, and hold it harmless against, any such loss, liability or
expense incurred as a result of gross negligence, bad faith or
willful misconduct on the part of the Purchaser.
(h) The Escrow Agent may at any time resign by
giving twenty Business Days' prior written notice of resignation
to the Seller and the Purchaser. The Seller and the Purchaser
may at any time jointly remove the Escrow Agent by giving ten
Business Days' prior written notice signed by each of them to the
Escrow Agent. If the Escrow Agent shall resign or be removed, a
successor Escrow Agent, which shall be a bank or trust company
having assets in excess of $2 billion, shall be appointed by the
Seller and the Purchaser by written instrument executed by the
Seller and the Purchaser and delivered to the Escrow Agent and to
such successor Escrow Agent and, thereupon, the resignation or
removal of the predecessor Escrow Agent shall become effective
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and such successor Escrow Agent, without any further act, deed or
conveyance, shall become vested with all right, title and
interest to all cash and property held hereunder of such
predecessor Escrow Agent, and such predecessor Escrow Agent
shall, on the written request of the Seller, the Purchaser or the
successor Escrow Agent, execute and deliver to such successor
Escrow Agent all the right, title and interest hereunder in and
to the Escrow Fund of such predecessor Escrow Agent and all other
rights hereunder of such predecessor Escrow Agent. If no
successor Escrow Agent shall have been appointed within twenty
Business Days of a notice of resignation by the Escrow Agent, the
Escrow Agent's sole responsibility shall thereafter be to hold
the Escrow Fund until the earlier of its receipt of designation
of a successor Escrow Agent, a joint written instruction by the
Seller and the Purchaser and termination of this Agreement in
accordance with its terms.
7. Termination. This Escrow Agreement shall
terminate on the date on which there is no property remaining in
the Escrow Fund.
8. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall
be given or made (and shall be deemed to have been duly given or
made upon receipt) by delivery in person, by courier service, by
telecopy or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this
Section 8):
(a) if to the Seller:
InterCel, Inc.
1239 O.G. Skinner Drive
West Point, Georgia 31833
Telecopy: (706) 645-2329
Attention: Fred G. Astor, Jr.
with a copy (which shall not constitute notice) to:
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Telecopy: (202) 637-5910
Attention: Kimberley E. Thompson, Esq.
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(b) if to the Purchaser:
MPX Systems, Inc.
c/o SCANA Corporation
1426 Main Street
Columbia, South Carolina 29201
Telecopy: (803) 733-2887
Attention: Kevin Marsh
with a copy (which shall not constitute notice) to:
McNair Law Firm, P.A.
1301 Gervais Street
Columbia, South Carolina 29201
Telecopy: (803) 376-2277
Attention: John W. Currie, Esq.
(c) if to the Escrow Agent, to:
___________________________________
___________________________________
___________________________________
___________________________________
Telecopy: _______________________
Attention: _______________________
9. Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and
shall not affect in any way the meaning or interpretation of this
Agreement.
10. 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 terms and
provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic and legal substance of
the transactions contemplated by this Agreement 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 in a
mutually acceptable manner in order that the transactions
contemplated by this Agreement are consummated as originally
contemplated to the greatest extent possible.
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11. Entire Agreement. This Agreement and the
Purchase Agreement constitute the entire agreement of the parties
hereto with respect to the subject matter hereof and supersede
all prior agreements and undertakings, both written and oral,
among the Seller, the Purchaser and the Escrow Agent with respect
to the subject matter hereof.
12. No Third Party Beneficiaries. This Agreement is
for the sole benefit of the parties hereto and their permitted
assigns and nothing herein, express or implied, is intended to or
shall confer upon any other Person any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
13. Amendment. This Agreement may not be amended or
modified except (a) by an instrument in writing signed by, or on
behalf of, the Seller, the Purchaser and the Escrow Agent or
(b) by a waiver in accordance with Section 14 of this Agreement.
14. Waiver. Any party hereto may (i) extend the time
for the performance of any obligation or other act of any other
party hereto or (ii) waive compliance with any agreement or
condition contained herein. Any such extension or waiver shall
be valid only if set forth in an instrument in writing signed by
the party or parties to be bound thereby. Any waiver of any term
or condition shall not be construed as a waiver of any subsequent
breach or a subsequent waiver of the same term or condition, or a
waiver of any other term or condition, of this Agreement. The
failure of any party to assert any of its rights hereunder shall
not constitute a waiver of any of such rights.
15. Governing Law. This Agreement shall be governed
by the laws of the State of New York.
16. 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 when taken together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above by
their respective officers thereunto duly authorized.
INTERCEL, INC.
By
Title:
MPX SYSTEMS, INC.
By
Title:
[ESCROW AGENT]
By
Title:
39
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SCHEDULE A
[Escrow Agent Fees]
40
<PAGE>
ANNEX I
CERTIFICATE OF THE DESIGNATIONS, POWERS, PREFERENCES
AND RELATIVE, PARTICIPATING OR OTHER RIGHTS, AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS THEREOF, OF
SERIES B CONVERTIBLE PREFERRED STOCK
($0.01 Par Value)
OF
INTERCEL, INC.
_________________
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
_________________
INTERCEL, INC., a Delaware corporation (the
"Corporation"), does hereby certify that the following
resolutions were duly adopted by the Board of Directors of the
Corporation pursuant to authority conferred upon the Board of
Directors by Article FOURTH of the Certificate of Incorporation
of the Corporation, which authorizes the issuance of up to
1,000,000 shares of preferred stock, at a meeting of the Board of
Directors duly held on [__________], 1996:
RESOLVED, that the issue of a series of preferred
stock, $0.01 par value, of the Corporation is hereby authorized
and the designation, powers, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, in addition
to those set forth in the Certificate of Incorporation of the
Corporation, are hereby fixed as follows:
Section (1) Number of Shares and Designation.
100,000 shares of the preferred stock, $0.01 par value, of
the Corporation are hereby constituted as a series of the
preferred stock designated as Series B Convertible Preferred
Stock (the "Series B Preferred Stock"). Without the consent
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of the then current holders of shares of Series B Preferred
Stock as provided for herein, the number of shares of Series
B Preferred Stock may not be increased and may not be
decreased below the number of then currently outstanding
shares of Series B Preferred Stock.
Section (2) Definitions. For purposes of the
Series A Preferred Stock, the following terms shall have the
meanings indicated:
"Board of Directors" shall mean the board of
directors of the Corporation or any committee
authorized by such Board of Directors to perform any of
its responsibilities with respect to the Series B
Preferred Stock.
"Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions
in the State of New York are authorized or obligated by
law or executive order to close.
Common Stock" shall mean the Common Stock of the
Corporation, par value $0.01 per share.
"Conversion Price" shall mean the conversion price
per share of Common Stock into which the Series B
Preferred Stock is convertible, as such Conversion
Price may be adjusted pursuant to Section (7). The
initial Conversion Price shall be $16.50 (equivalent to
the rate of 45.4545 shares of Common Stock for each
share of Series B Preferred Stock).
"Current Market Price" shall mean, as of a
particular date, the average of the high bid and low
asked prices per share of Common Stock in the over-the-
counter market, as reported by the NASDAQ Stock Market
or such other system then in use, or such other
exchange or inter-dealer quotation system on which the
Common Stock is principally traded or authorized to be
quoted.
"Issue Date" shall mean the first date on which
shares of Series B Preferred Stock are issued.
"NASDAQ Stock Market" shall mean the National
Market System of the National Association of Securities
Dealers, Inc. Automated Quotation System.
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"Person" shall mean any individual, firm,
partnership, corporation or other entity, and shall
include any successor (by merger or otherwise) of such
entity.
"Securities" shall have the meaning set forth in
paragraph (d)(iii) of Section (7).
"Series A Preferred Stock" shall mean the series
of preferred stock, $0.01 par value, of the Corporation
designated as Series A Convertible Preferred Stock.
"Subsidiaries" shall mean any and all
corporations, partnerships, limited liability
companies, joint ventures, associations and other
entities controlled by the Corporation directly or
indirectly through one or more intermediaries.
"Trading Day" means a day on which the NASDAQ
Stock Market, or such other exchange or inter-dealer
quotation system on which the Common Stock is
principally traded or authorized to be quoted, is open
for the transaction of business.
"Transaction" shall have the meaning set forth in
paragraph (e) of Section (7).
"Transfer Agent" means such agent or agents of the
Corporation as may be designated by the Board of
Directors of the Corporation as the transfer agent for
the Series B Preferred Stock.
Section (3) Dividends. (a) The holders of shares
of the Series B Preferred Stock shall be entitled to
receive, when and if declared by the Board of Directors out
of funds legally available therefor, dividends in an amount
per share of Series B Preferred Stock equal to the dividends
payable on the number of shares of Common Stock into which
one share of Series B Preferred Stock is then convertible,
determined as of the date fixed for determining holders of
shares of Common Stock entitled to receive such dividends.
Each such dividend shall be payable in arrears to the
holders of record of shares of the Series B Preferred Stock,
as they appear on the stock records of the Corporation at
the close of business on such record dates, not more than 60
days preceding the payment dates thereof, as shall be fixed
by the Board of Directors.
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<PAGE>
(b) Except as provided in Section 5(a), holders of
shares of Series B Preferred Stock called for redemption on
a redemption date between a dividend payment record date and
the dividend payment date shall not be entitled to receive
the dividend payable on such dividend payment date.
(c) So long as any shares of the Series B Preferred
Stock are outstanding, no dividends shall be declared or
paid or set apart for payment on any class or series of
stock of the Corporation ranking, as to dividends, on a
parity with the Series B Preferred Stock, for any period,
nor shall any shares ranking on a parity with the Series B
Preferred Stock be redeemed or purchased by the Corporation
or any Subsidiary, unless dividends declared and paid on the
Common Stock have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment
thereof set apart for such payment on the Series B Preferred
Stock in accordance with paragraph (a) of this Section (3).
Section (4) Liquidation Preference. (a) In the
event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, before any
payment or distribution of the assets of the Corporation
(whether capital or surplus) shall be made to or set apart
for the holders of Common Stock or any other series or class
or classes of stock of the Corporation ranking junior to the
Series B Preferred Stock, upon liquidation, dissolution or
winding up, the holders of the shares of Series B Preferred
Stock shall be entitled to receive $750.00 per share plus an
amount equal to all dividends declared and unpaid thereon to
the date of final distribution to such holders; thereafter,
such holders shall be entitled to share ratably with the
holders of the shares of Common Stock as provided in
paragraph (b) of this Section (4). If, upon any
liquidation, dissolution or winding up of the Corporation,
the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of Series A
Preferred Stock, Series B Preferred Stock and any other
shares of stock ranking, as to liquidation, dissolution or
winding up, on a parity with the Series B Preferred Stock,
shall be insufficient to pay in full the preferential amount
aforesaid and liquidating payments in respect thereof, then
such assets, or the proceeds thereof, shall be distributed
among the holders of shares of Series A Preferred Stock,
Series B Preferred Stock and any such other stock ratably in
accordance with the respective amounts which would be
payable on such shares of Series A Preferred Stock, Series B
44
<PAGE>
Preferred Stock and any such other stock if all amounts
payable thereon were paid in full. For the purposes of this
Section (4), (i) a consolidation or merger of the
Corporation with one or more corporations, (ii) a sale or
transfer of all or substantially all of the Corporation's
assets or (iii) a statutory share exchange shall not be
deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary.
(b) Subject to the rights of the holders of shares
of any series or class or classes of stock ranking on a
parity with or prior to Series B Preferred Stock, upon any
liquidation, dissolution or winding up of the Corporation,
after payment shall have been made in full to the holders of
Series B Preferred Stock, as provided in paragraph (a) of
this Section (4), holders of shares of Series B Preferred
Stock shall be entitled to share ratably with holders of
shares of Common Stock and any other class or series
entitled to participate with the Common Stock in the event
of liquidation, dissolution or winding up, in any and all
assets remaining to be paid or distributed, such that
distributions shall be made in respect of each share of
Series B Preferred Stock in an amount equal to the
distributions made in respect of the number of shares of
Common Stock into which such share of Series B Preferred
Stock is then convertible.
Section (5) Redemption at the Option of the
Corporation. (a) Series B Preferred Stock may not be
redeemed by the Corporation prior to the fifth anniversary
of the Issue Date. After the fifth anniversary of the Issue
Date, the Corporation, at its option, may redeem the shares
of Series B Preferred Stock, in whole or in part, for an
aggregate redemption price of $750.00 per share plus an
amount per share equal to declared and unpaid dividends, if
any, to the date fixed for redemption, out of funds legally
available therefor, at any time or from time to time,
subject to the notice provisions and provisions for partial
redemption described below; provided, however, that the
Corporation must redeem the shares of Series A Preferred
Stock and the shares of Series B Preferred Stock on a pro
rata basis.
(b) In the event the Corporation shall redeem
shares of Series A Preferred Stock and Series B Preferred
Stock, notice of such redemption shall be given by first
class mail, postage prepaid, mailed not less than 20 nor
more than 60 days prior to the redemption date, to each
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<PAGE>
holder of record of the shares to be redeemed, at such
holder's address as the same appears on the stock records of
the Corporation, which notice shall be unconditional and
irrevocable. Each such notice shall state: (1) the
redemption date; (2) the number of shares of Series A
Preferred Stock and Series B Preferred Stock to be redeemed
and, if less than all the shares held by such holder are to
be redeemed, the number of such shares to be redeemed from
such holder; (3) the redemption price; (4) the place or
places where certificates for such shares are to be
surrendered for payment of the redemption price; and (5) the
then current conversion price. Notice having been mailed as
aforesaid, from and after the redemption date (unless
default shall be made by the Corporation in providing money
for the prompt payment of the redemption price), (i) the
shares of the Series B Preferred Stock so called for
redemption shall no longer be deemed to be outstanding, and
(ii) all rights of the holders thereof as stockholders of
the Corporation (except the right to receive from the
Corporation the redemption price without interest thereon
after the redemption date) shall cease. If the Corporation
fails to provide money for the payment of the redemption
price within 30 days after the redemption date, the
redemption price shall accrue interest at the rate of 15%
per annum.
Upon surrender in accordance with said notice of the
certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall
so require and the notice shall so state), such shares shall
be redeemed by the Corporation at the applicable redemption
price aforesaid. If fewer than all the outstanding shares
of Series A Preferred Stock and Series B Preferred Stock are
to be redeemed, shares to be redeemed shall be selected pro
rata (as nearly as may be) by the Corporation from
outstanding shares of Series A Preferred Stock and Series B
Preferred Stock not previously called for redemption. If
fewer than all the shares represented by any certificate are
redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
Section (6) Shares to be Retired. All shares of
Series B Preferred Stock purchased or redeemed by the
Corporation or converted shall be retired and cancelled and
shall be restored to the status of authorized but unissued
shares of preferred stock, without designation as to series.
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<PAGE>
Section (7) Conversion. Holders of shares of
Series B Preferred Stock shall have the right to convert all
or a portion of such shares into shares of Common Stock, as
follows:
(a) Subject to and upon compliance with the
provisions of this Section (7), a holder of shares of Series
B Preferred Stock shall have the right, at his, her or its
option, at any time after the fourth anniversary of the
Issue Date, to convert such shares, in whole or in part,
into the number of fully paid and nonassessable shares of
Common Stock (calculated as to each conversion to the
nearest 1/100th of a share) obtained by dividing the
aggregate liquidation preference of such shares by the
Conversion Price and by surrender of such shares so to be
converted by the holder thereof, such surrender to be made
in the manner provided in paragraph (b) of this Section (7);
provided, however, that the right to convert shares called
for redemption pursuant to Section (5) shall terminate at
the close of business on the date fixed for such redemption,
unless the Corporation shall default in making prompt
payment of the amount payable upon such redemption. Any
share of Series B Preferred Stock may be converted, at the
request of its holder, in part into Common Stock. If a part
of a share of Series B Preferred Stock is converted, then
the Corporation will convert such share into the requested
shares of Common Stock (subject to paragraph (c) of this
Section (7)) and issue a fractional share of Series B
Preferred Stock evidencing the remaining interest of such
holder.
(b) In order to exercise the conversion right, the
holder of each share of Series B Preferred Stock to be
converted shall surrender the certificate representing such
share, duly endorsed or assigned to the Corporation or in
blank, at the office of the Transfer Agent or, if no
Transfer Agent has been appointed by the Corporation, at the
principal office of the Corporation, accompanied by written
notice to the Corporation that the holder thereof elects to
convert its shares of Series B Preferred Stock or a
specified portion thereof. Unless the shares issuable on
conversion are to be issued in the same name as the name in
which such share of Series B Preferred Stock is registered,
each share surrendered for conversion shall be accompanied
by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or such holder's
duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory
to the Corporation demonstrating that such taxes have been
paid).
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Holders of shares of Series B Preferred Stock at the
close of business on a dividend payment record date shall be
entitled to receive the dividend payable on such shares
(except that holders of shares called for redemption on a
redemption date between such record date and the dividend
payment date shall not be entitled to receive such dividend
on such dividend payment date) on the corresponding dividend
payment date notwithstanding the conversion thereof
following such dividend payment record date and prior to
such dividend payment date.
As promptly as practicable after the surrender of
certificates for shares of Series B Preferred Stock as
aforesaid, the Corporation shall issue and shall deliver at
such office to such holder, or on his, her or its written
order, (i) a certificate or certificates for the number of
full shares of Common Stock issuable upon the conversion of
such shares in accordance with the provisions of this
Section (7), (ii) if less than the full number of shares of
Series B Preferred Stock evidenced by the surrendered
certificates is being converted, a new certificate or
certificates, of like tenor, for the number of shares
evidenced by such surrendered certificates less the number
of shares being converted, and (iii) any fractional interest
in respect of a share of Common Stock arising upon such
conversion shall be settled as provided in paragraph (c) of
this Section (7).
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on
which the certificates for shares of Series B Preferred
Stock shall have been surrendered and such notice received
by the Corporation as aforesaid, and the person or persons
in whose name or names any certificate or certificates for
shares of Common Stock shall be issuable upon such
conversion shall be deemed to have become the holder or
holders of record of the shares represented thereby at such
time on such date and such conversion shall be at the
Conversion Price in effect at such time on such date, unless
the stock transfer books of the Corporation shall be closed
on that date, in which event such person or persons shall be
deemed to have become such holder or holders of record at
the close of business on the next succeeding day on which
such stock transfer books are open, but such conversion
shall be at the Conversion Price in effect on the date upon
which such shares shall have been surrendered and such
notice received by the Corporation. All shares of Common
Stock delivered upon conversion of the Series B Preferred
Stock shall upon delivery be duly and validly issued and
fully paid and nonassessable.
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(c) No fractional shares or scrip representing
fractions of shares of Common Stock shall be issued upon
conversion of the Series B Preferred Stock. Instead of any
fractional interest in a share of Common Stock which would
otherwise be deliverable upon the conversion of a share of
Series B Preferred Stock, the Corporation shall pay to the
holder of such share an amount in cash (computed to the
nearest cent) equal to such fraction of a share multiplied
by the Current Market Price of one share of Common Stock on
the Trading Day immediately preceding the date of
conversion. If more than one share shall be surrendered for
conversion at one time by the same holder, the number of
full shares of Common Stock issuable upon conversion thereof
shall be computed on the basis of the aggregate number of
shares of Series B Preferred Stock so surrendered.
(d) The Conversion Price shall be adjusted from
time to time as follows:
(i) In case the Corporation shall after the
Issue Date (A) pay a dividend or make a distribution on
its Common Stock in shares of its Common Stock,
(B) subdivide its outstanding Common Stock into a
greater number of shares, (C) combine its outstanding
Common Stock into a smaller number of shares or
(D) issue any shares of capital stock by
reclassification of its Common Stock, the Conversion
Price in effect immediately prior thereto shall be
adjusted so that the holder of any share of Series B
Preferred Stock thereafter surrendered for conversion
shall be entitled to receive the number of shares of
Common Stock of the Corporation which such holder would
have owned or have been entitled to receive after the
happening of any of the events described above had such
share of Series B Preferred Stock been converted
immediately prior to the happening of such event or the
record date therefor, whichever is earlier. An
adjustment made pursuant to this subparagraph (i) shall
become effective immediately after the close of
business on the record date in the case of a dividend
or distribution (except as provided in paragraph (h)
below) and shall become effective immediately after the
close of business on the record date in the case of a
subdivision, combination or reclassification.
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(ii) In case the Corporation shall issue after
the Issue Date (a) rights or warrants to all holders of
Common Stock entitling them (for a period expiring
within 180 days after the record date mentioned below)
to subscribe for or purchase Common Stock at a price
per share less than the Conversion Price at the record
date for the determination of shareholders entitled to
receive such rights or warrants or (b) shares of Common
Stock or securities exercisable for (including rights
or warrants other than those referred to in clause (a)
above and subparagraph (iii) below) or exchangeable or
convertible into shares of Common Stock at a price per
share (or having an exercise, exchange or conversion
price per share) less than the then current Conversion
Price (other than securities issued in a transaction in
which a pro rata share of such securities have been
reserved by the Corporation for distribution to the
holders of Series B Preferred Stock upon conversion),
then in each such case the Conversion Price in effect
immediately prior thereto shall be adjusted to equal
the price determined by multiplying (I) the Conversion
Price in effect immediately prior to the date of
issuance of such rights, warrants or shares of Common
Stock (or securities exercisable for or exchangeable or
convertible into shares of Common Stock) by (II) a
fraction, the numerator of which shall be the sum of
(A) the number of shares of Common Stock outstanding on
the date of issuance of such rights, warrants or shares
of Common Stock (or securities exercisable for or
exchangeable or convertible into shares of Common
Stock) (without giving effect to any such issuance) and
(B), in the case of (a) above, the number of shares
which the aggregate proceeds from the exercise of such
rights or warrants for Common Stock or, in the case of
(b) above, the number of shares which the aggregate
consideration receivable by the Corporation for the
total number of shares of Common Stock (or securities
exercisable for or exchangeable or convertible into
shares of Common Stock) so issued would purchase at the
Conversion Price in effect immediately prior to the
date of issuance, and the denominator of which shall be
the sum of (A) the number of shares of Common Stock
outstanding on the date of issuance of such rights,
warrants or shares of Common Stock (or securities
exercisable for or exchangeable or convertible into
Common Stock) (without giving effect to any such
issuance) and (B), in the case of clause (a) above, the
number of additional shares of Common Stock offered for
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subscription or purchase or, in the case of clause (b)
above, the number of shares of Common Stock so issued
or into which the exercisable, exchangeable or
convertible securities may be exercised, exchanged or
converted. Such adjustment shall be made successively
whenever any such rights, warrants or shares of Common
Stock (or securities exercisable for or exchangeable or
convertible into Common Stock) are issued, and shall
become effective immediately after such record date or,
in the case of the issuance of Common Stock, after the
date of issuance thereof (or in the case of securities
exercisable for or exchangeable or convertible into
shares of Common Stock, the date on which holders may
first exercise, exchange or convert the same in
accordance with the respective terms thereof). In
determining whether any rights or warrants entitle the
holders of Common Stock to subscribe for or purchase
shares of Common Stock at less than the Conversion
Price in effect immediately prior to the date of such
issuance, and in determining the aggregate offering
price of shares of Common Stock (or securities
exercisable for or exchangeable or convertible into
shares of Common Stock), there shall be taken into
account any net consideration received or receivable by
the Corporation upon issuance and upon exercise of such
rights or warrants or upon issuance of shares of Common
Stock (or securities exercisable for or exchangeable or
convertible into shares of Common Stock), the value of
such consideration, if other than cash, to be
determined by the Board of Directors in good faith or,
if higher, the aggregate exercise, exchange or
conversion price set forth in such exercisable,
exchangeable or convertible securities. The aggregate
consideration received by the Corporation in connection
with the issuance of shares of Common Stock or of
rights, warrants or securities exercisable for or
exchangeable or convertible into shares of Common Stock
shall be deemed to be equal to the sum of the aggregate
net offering price of all such securities plus the
minimum aggregate amount, if any, payable upon the
exercise of such rights or warrants and conversion of
any such exercisable, exchangeable or convertible
securities into shares of Common Stock.
(iii) In case the Corporation shall distribute
to all holders of its Common Stock any shares of
capital stock of the Corporation (other than Common
Stock) or evidences of its indebtedness or assets
(other than a regular cash dividend that the Board of
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Directors determines, in good faith, can be maintained
by the Corporation for at least four consecutive
periods covering not less than one year and that the
Board of Directors intends to maintain for at least
four consecutive periods covering not less than one
year, out of profits or surplus) or rights or warrants
to subscribe for or purchase any of its securities
(excluding those referred to in subparagraph (ii)(a)
above) (any of the foregoing being hereinafter in this
subparagraph (iii) called the "Securities"), then in
each such case, unless the Corporation elects to
reserve shares or other units of such Securities for
distribution to the holders of the Series B Preferred
Stock upon the conversion of the shares of Series B
Preferred Stock so that any such holder converting
shares of Series B Preferred Stock will receive upon
such conversion, in addition to the shares of the
Common Stock to which such holder is entitled, the
amount and kind of such Securities which such holder
would have received if such holder had, immediately
prior to the record date for the distribution of the
Securities, converted his or her shares of Series B
Preferred Stock into Common Stock (such election to be
based upon a determination by the Board of Directors
that such reservation will not materially adversely
affect the interests of any holder of Series B
Preferred Stock in any such reserved Securities), the
Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying (I) the
Conversion Price in effect immediately prior to the
date of such distribution by (II) a fraction, the
numerator of which shall be the Current Market Price
per share of the Common Stock on the record date
mentioned below less the fair market value (as
determined by the Board of Directors, whose
determination shall, if made in good faith, be
conclusive) of the portion of the capital stock or
assets or evidences of indebtedness so distributed or
of such rights or warrants applicable to one share of
Common Stock, and the denominator of which shall be the
Current Market Price per share of the Common Stock.
Such adjustment shall become effective immediately,
except as provided in paragraph (h) below, after the
record date for the determination of stockholders
entitled to receive such distribution.
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(iv) No adjustment in the Conversion Price
shall be required unless such adjustment would require
an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason
of this subparagraph (iv) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment; and provided further that any
adjustment shall be required and made in accordance
with the provisions of this Section (7) (other than
this subparagraph (iv)) not later than such time as may
be required in order to preserve the tax-free nature of
a distribution to the holders of shares of Common
Stock. All calculations under this Section (7) shall
be made to the nearest cent (with $.005 being rounded
upward) or to the nearest 1/100 of a share (with .005
of a share being rounded upward), as the case may be.
Anything in this paragraph (d) to the contrary
notwithstanding, the Corporation shall be entitled, to
the extent permitted by law, to make such reductions in
the Conversion Price, in addition to those required by
this paragraph (d), as it in its discretion shall
determine to be advisable in order that any stock
dividends, subdivision of shares, distribution of
rights or warrants to purchase stock or securities, or
a distribution of other assets (other than cash
dividends) hereafter made by the Corporation to its
stockholders shall not be taxable.
(v) No adjustment in the Conversion Price
shall be required in the event of any dividend,
distribution or issuance to holders of shares of Common
Stock pursuant to subparagraph (i), (ii) or (iii) above
if holders of shares of Series B Preferred Stock have
received the same dividend, distribution or issuance in
accordance with Section (3).
(e) In case the Corporation shall be a party to any
transaction (including without limitation a merger,
consolidation, sale of all or substantially all of the
Corporation's assets or recapitalization of the Common Stock
and excluding any transaction as to which paragraph (d)(i)
of this Section (7) applies) (each of the foregoing being
referred to as a "Transaction"), in each case as a result of
which shares of Common Stock shall be converted into the
right to receive stock, securities or other property
(including cash or any combination thereof), each share of
Series B Preferred Stock which is not converted into the
right to receive stock, securities or other property in
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connection with such Transaction shall thereafter be
convertible into the kind and amount of shares of stock and
other securities and property receivable (including cash)
upon the consummation of such Transaction by a holder of
that number of shares or fraction thereof of Common Stock
into which one share of Series B Preferred Stock was
convertible immediately prior to such Transaction. The
Corporation shall not be a party to any Transaction unless
the terms of such Transaction are consistent with the
provisions of this paragraph (e) and it shall not consent or
agree to the occurrence of any Transaction until the
Corporation has entered into an agreement with the successor
or purchasing entity, as the case may be, for the benefit of
the holders of the Series B Preferred Stock which will
contain provisions enabling the holders of the Series B
Preferred Stock which remains outstanding after such
Transaction to convert into the consideration received by
holders of Common Stock at the Conversion Price immediately
after such Transaction. The provisions of this paragraph
(e) shall similarly apply to successive Transactions.
(f) If:
(i) the Corporation shall declare a dividend
(or any other distribution) on the Common Stock (other
than a regular cash dividend that the Board of
Directors determines can be maintained by the
Corporation for at least four consecutive periods
covering at least one year and that the Board of
Directors intends to maintain for at least four
consecutive periods covering at least one year out of
profits or surplus); or
(ii) the Corporation shall authorize the
granting to the holders of the Common Stock of rights
or warrants to subscribe for or purchase any shares of
any class or any other rights or warrants; or
(iii) there shall be any reclassification of
the Common Stock (other than an event to which
paragraph (d)(i) of this Section (7) applies) or any
consolidation or merger to which the Corporation is a
party and for which approval of any stockholders of the
Corporation is required, or the sale or transfer of all
or substantially all of the assets of the Corporation,
then the Corporation shall cause to be filed with the
Transfer Agent and shall cause to be mailed to the
holders of shares of the Series B Preferred Stock at
their addresses as shown on the stock records of the
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Corporation, as promptly as possible, but at least 15
days prior to the applicable date specified in clauses
(A) and (B) below, a notice stating (A) the date on
which a record is to be taken for the purpose of such
dividend, distribution or rights or warrants, or, if a
record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to
such dividend, distribution or rights or warrants are
to be determined or (B) the date on which such
reclassification, consolidation, merger, sale or
transfer is expected, that holders of Common Stock of
record shall be entitled to exchange their shares of
Common Stock for securities or other property
deliverable upon such reclassification, consolidation,
merger, sale or transfer. Failure to give such notice
or any defect therein shall not affect the legality or
validity of the proceedings described in this Section
(7).
(g) Whenever the Conversion Price is adjusted as
herein provided, the Corporation shall prepare a notice of
such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the date on which such
adjustment becomes effective and shall promptly mail such
notice of such adjustment of the Conversion Price to the
holder of each share of Series B Preferred Stock at his, her
or its last address as shown on the stock records of the
Corporation.
(h) In any case in which paragraph (d) of this
Section (7) provides that an adjustment shall become
effective immediately after a record date for an event, the
Corporation may defer until the occurrence of such event (A)
issuing to the holder of any share of Series B Preferred
Stock converted after such record date and before the
occurrence of such event the additional shares of Common
Stock issuable upon such conversion by reason of the
adjustment required by such event over and above the Common
Stock issuable upon such conversion before giving effect to
such adjustment and (B) paying to such holder any amount in
cash in lieu of any fraction pursuant to paragraph (c) of
this Section (7).
(i) For purposes of this Section (7), the number of
shares of Common Stock at any time outstanding shall not
include any shares of Common Stock then owned or held by or
for the account of the Corporation.
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(j) If any action or transaction would require
adjustment of the Conversion Price pursuant to more than one
paragraph of this Section (7), only one adjustment shall be
made and such adjustment shall be the amount of adjustment
which has the highest absolute value.
(k) In case the Corporation shall take any action
affecting the Common Stock other than action described in
this Section (7), which in the opinion of the Board of
Directors would materially adversely affect the conversion
rights of the holders of the shares of Series B Preferred
Stock, the Conversion Price for the Series B Preferred Stock
may be adjusted, to the extent permitted by law, in such
manner, if any, and at such time, as the Board of Directors
may determine to be equitable in the circumstances.
(l) The Corporation covenants that it will at all
times reserve and keep available, free from preemptive
rights, out of the aggregate of its authorized but unissued
shares of Common Stock or its issued shares of Common Stock
held in its treasury, or both, for the purpose of effecting
conversion of the Series B Preferred Stock, the full number
of shares of Common Stock deliverable upon the conversion of
all outstanding shares of Series B Preferred Stock not
theretofore converted. For purposes of this paragraph (l),
the number of shares of Common Stock which shall be
deliverable upon the conversion of all outstanding shares of
Series B Preferred Stock shall be computed as if at the time
of computation all such outstanding shares were held by a
single holder.
Before taking any action which would cause an
adjustment reducing the Conversion Price below the then par
value of the shares of Common Stock deliverable upon
conversion of the Series B Preferred Stock, the Corporation
shall take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Corporation may
validly and legally issue fully paid and nonassessable
shares of Common Stock at such adjusted Conversion Price.
The Corporation shall use all reasonable efforts to
list the shares of Common Stock required to be delivered
upon conversion of the Series B Preferred Stock prior to
such delivery, on the NASDAQ Stock Market or such other
exchange or inter-dealer quotation system on which the
Common Stock is principally traded or authorized to be
quoted.
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Prior to the delivery of any securities which the
Corporation shall be obligated to deliver upon conversion of
the Series B Preferred Stock, the Corporation shall use all
reasonable efforts to comply with all federal and state laws
and regulations thereunder requiring the registration of
such securities with, or any approval of or consent to the
delivery thereof by, any governmental authority, and any
such conversion or delivery shall be subject to any
applicable requirements of law or regulation.
(m) The Corporation shall pay any and all
documentary stamp or similar issue or transfer taxes payable
in respect of the issue or delivery of shares of Common
Stock on conversion of the Series B Preferred Stock pursuant
hereto; provided, however, that the Corporation shall not be
required to pay any tax which may be payable in respect of
any transfer involved in the issue or delivery of shares of
Common Stock in a name other than that of the holder of the
Series B Preferred Stock to be converted and no such issue
or delivery shall be made unless and until the person
requesting such issue or delivery has paid to the
Corporation the amount of any such tax or has established,
to the reasonable satisfaction of the Corporation, that such
tax has been paid.
Section (8) Ranking. Any class or classes of stock
of the Corporation shall be deemed to rank:
(i) prior to the Series B Preferred Stock, as
to dividends or as to distribution of assets upon
liquidation, dissolution or winding up, if the holders
of such class shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in
preference or priority to the holders of Series B
Preferred Stock;
(ii) on a parity with the Series B Preferred
Stock, (A) as to dividends, if such stock shall be
Series A Preferred Stock or Common Stock or if the
holders of such class of stock and the Series B
Preferred Stock shall be entitled to the receipt of
dividends in proportion to their respective amounts of
declared and unpaid dividends per share, without
preference or priority one over the other, or (B) as to
distribution of assets upon liquidation, dissolution or
winding up, whether or not the redemption or
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<PAGE>
liquidation prices per share thereof be different from
those of the Series B Preferred Stock, if such stock
shall be Series A Preferred Stock or if the holders of
such class of stock and the Series B Preferred Stock
shall be entitled to the receipt of amounts
distributable upon liquidation, dissolution or winding
up in proportion to their respective amounts of
liquidation prices, without preference or priority one
over the other; and
(iii) junior to the Series B Preferred Stock,
(A) as to dividends, if the holders of Series B
Preferred Stock shall be entitled to the receipt of
dividends in preference or priority to the holders of
shares of such stock, or (B) as to distribution of
assets upon liquidation, dissolution or winding up, if
such stock shall be Common Stock or if the holders of
Series B Preferred Stock shall be entitled to receipt
of amounts distributable upon liquidation, dissolution
or winding up in preference or priority to the holders
of shares of such stock.
Section (9) Voting. (a) Except as herein
provided or as otherwise from time to time required by law,
holders of Series B Preferred Stock shall have no voting
rights.
(b) So long as any shares of the Series B Preferred
Stock remain outstanding, the consent of the holders of at
least two-thirds of the shares of Series B Preferred Stock
outstanding at the time given in person or by proxy, either
in writing or at any special or annual meeting, shall be
necessary to permit, effect or validate any one or more of
the following:
(i) The authorization, creation or issuance,
or any increase in the authorized or issued amount, of
any class or series of stock ranking prior to Series B
Preferred Stock as to dividends or the distribution of
assets upon liquidation, dissolution or winding up;
(ii) The increase in the authorized or issued
amount of Series B Preferred Stock; or
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(iii) The amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of any
of the provisions of the Certificate of Incorporation
of the Corporation (including any of the provisions
hereof) which would affect any right, preference or
voting power of Series B Preferred Stock or of the
holders thereof; provided, however, that any increase
in the amount of authorized preferred stock or the
creation and issuance of other series of preferred
stock, or any increase in the amount of authorized
shares of such series or of any other series of
preferred stock, in each case ranking on a parity with
or junior to the Series B Preferred Stock with respect
to the payment of dividends and the distribution of
assets upon liquidation, dissolution or winding up,
shall not be deemed to affect such rights, preferences
or voting powers.
The foregoing voting provisions shall not apply if, at
or prior to the time when the act with respect to which such
vote would otherwise be required shall be effected, all
outstanding shares of Series B Preferred Stock shall have
been redeemed or sufficient funds shall have been deposited
in trust to effect such redemption, scheduled to be
consummated within 30 days after such time.
Section (10) Record Holders. The Corporation and
the Transfer Agent may deem and treat the record holder of
any shares of Series B Preferred Stock as the true and
lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any
notice to the contrary.
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IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be made under the seal of the Corporation and
signed by [_______________], its [_______________], and attested
by [_______________], its [_______________], this [____] day of
[___________], 1996.
INTERCEL, INC.
By
(Corporate Seal)
Attest:
By
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ANNEX II
Registration Rights
(a) The Purchaser shall have the right at any time
after the Closing to make three requests of the Seller in writing
for registration under the Securities Act of shares of Common
Stock into which Shares have been converted or are to be
converted prior to the closing of the offering pursuant to such
registration (the "Securities"): with respect to the first such
request to register under the Securities Act at least $20 million
in market value of Securities Beneficially Owned by the Purchaser
(the shares subject to any such request hereunder being referred
to as the "Subject Stock"), and with each subsequent such request
being at least 6 months following the completion of the prior
offering pursuant to a registration statement with respect to the
Subject Stock which was effective until the earlier of the
completion of such offering or three months. The Seller shall
use all reasonable efforts to cause the Subject Stock to be
registered under the Securities Act as soon as reasonably
practicable after receipt of a request so as to permit promptly
the sale thereof, and in connection therewith, the Seller shall
prepare and file, on such appropriate form as the Seller in its
discretion shall determine, a registration statement under the
Securities Act to effect such registration. The Seller shall use
all reasonable efforts to list all Subject Stock covered by such
registration statement on any national securities exchange on
which the Common Stock is then listed or to list such Subject
Stock on the National Association of Securities Dealers, Inc.
Automated Quotation System or National Market System. The
Purchaser hereby undertakes to provide all such information and
materials and take all such action as may be required in order to
permit the Seller to comply with all applicable requirements of
the Commission and to obtain any desired acceleration of the
effective date of such registration statement. Any registration
statement filed at the Purchaser's request hereunder will not
count as a requested registration unless effectiveness is
maintained until the earlier of completion of the offering or
three months. Notwithstanding the foregoing, the Seller
(i) shall not be obligated to cause any special audit to be
undertaken in connection with any such registration (provided
that this provision shall not relieve the Seller of its
obligation to obtain any required consents with respect to
financial statements in prior periods) and (ii) shall be entitled
to postpone for a reasonable period (not to exceed 90 days) of
time the filing of any registration statement otherwise required
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<PAGE>
to be prepared and filed by the Seller if the Seller is, at such
time, either (A) conducting, or proposing to file with the
Commission within 90 days a registration statement with respect
to, an underwritten public offering for the account of the Seller
of equity securities (or securities convertible into equity
securities) or is subject to a contractual obligation not to
engage in a public offering and is advised in writing by its
managing underwriter or underwriters (with a copy to the
Purchaser) that such offering would in its or their opinion be
adversely affected by the registration so requested or (B)
subject to an existing contractual obligation to its underwriters
not to engage in a public offering. Notwithstanding any other
provision of this Annex II, the Seller may postpone action under
this Annex II for as long as it reasonably deems necessary (but
no longer than 90 days) if the Seller determines, in its
reasonable discretion, that effecting the registration at such
time might (i) adversely affect a pending or contemplated
financing, acquisition, disposition of assets or stock, merger or
other significant transaction, or (ii) require the Seller to make
public disclosure of information the public disclosure of which
at such time the Seller in good faith believes could have a
significant adverse effect upon the Seller.
No securities may be registered on a registration
statement requested by the Purchaser pursuant to the first
paragraph of paragraph (a) of this Annex II without the
Purchaser's express written consent, unless the amount of such
securities is subject to reduction prior to any reduction in the
number of securities originally requested by the Purchaser in the
event the lead underwriter of the related offering believes that
the success of such offering would be materially and adversely
affected by inclusion of all the securities requested to be
included therein.
At any time after the Closing, if the Seller proposes
to file a registration statement under the Securities Act with
respect to an offering of its equity securities (i) for its own
account (other than a registration statement on Form S-4 or S-8
(or any substitute form that may be adopted by the Commission))
or (ii) for the account of any holders of its securities
(including pursuant to a demand registration), then the Seller
shall give written notice of such proposed filing to the
Purchaser as soon as practicable (but in any event not less than
5 Business Days before the anticipated filing date), and such
notice shall offer the Purchaser the opportunity to register such
number of shares of Securities as the Purchaser requests. If the
Purchaser wishes to register securities of the same class or
series as the Seller or such holder, such registration shall be
on the same terms and conditions as the registration of the
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Seller's or such holders' securities (a "Piggyback
Registration"). Notwithstanding anything contained herein, if
the lead underwriter of an offering involving a Piggyback
Registration delivers a written opinion to the Seller that the
success of such offering would be materially and adversely
affected by inclusion of all the securities requested to be
included, then the number of securities to be registered by the
Purchaser shall be reduced prior to any reduction in the number
of securities originally requested by them; provided, however,
that the Seller must provide prompt written notice of such
written opinion to the Purchaser. The Purchaser shall have the
right at any time to convert its request for a Piggyback
Registration into a requested registration pursuant to the first
paragraph of paragraph (a) of this Annex II.
(b) In connection with any offering of shares of
Subject Stock registered pursuant to this Annex II, the Seller
(i) shall furnish to the Purchaser such number of copies of any
prospectus (including any preliminary prospectus) as it may
reasonably request in order to effect the offering and sale of
the Subject Stock to be offered and sold, but only while the
Seller shall be required under the provisions hereof to cause the
registration statement to remain current and (ii) take such
action as shall be necessary to qualify the shares covered by
such registration statement under such "blue sky" or other state
securities laws for offer and sale as the Purchaser shall
reasonably request; provided, however, that the Seller shall not
be obligated to qualify as a foreign corporation to do business
under the laws of any jurisdiction in which it shall not then be
qualified or to file any general consent to service of process in
any jurisdiction in which such a consent has not been previously
filed. If applicable, the Seller shall enter into an
underwriting agreement with a managing underwriter or
underwriters selected by the Purchaser (reasonably satisfactory
to the Seller) containing representations, warranties,
indemnities and agreements then customarily included by an issuer
in underwriting agreements with respect to secondary
distributions; provided, however, that such underwriter or
underwriters shall agree to use their best efforts to ensure that
the offering results in a distribution of the Subject Stock sold
in accordance with the terms of this Agreement. In connection
with any offering of Subject Stock registered pursuant to this
Annex II, the Seller shall (x) furnish to the underwriter, at the
Seller's expense, unlegended certificates representing ownership
of the Subject Stock being sold in such denominations as
reasonably requested and (y) instruct any transfer agent and
registrar of the Subject Stock to release any stop transfer
orders with respect to such Subject Stock. Upon any registration
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becoming effective pursuant to this Annex II, the Seller shall
use all reasonable efforts to keep such registration statement
current for such period as shall be required for the disposition
of all of said Subject Stock; provided, however, that such period
need not exceed three months.
(c) The Purchaser shall pay all underwriting
discounts and commissions related to shares of Subject Stock
being sold by the Purchaser and the fees and disbursements of
counsel and other advisors to the Purchaser. All other fees and
expenses in connection with the first requested registration
pursuant to the first paragraph of paragraph (a) of this Annex
II, including, without limitation, all registration and filing
fees, all fees and expenses of complying with securities or "blue
sky" laws, fees and disbursements of the Seller's counsel and
accountants (including the expenses of "cold comfort" letters
required by or incident to such performance and compliance) and
any fees and disbursements of underwriters customarily paid by
issuers in secondary offerings, shall be paid by the Seller, and
all such other fees and expenses in connection with the second
and third requested registration pursuant to this Annex II shall
be borne equally by the Purchaser and the Seller; provided,
however, that in the event the Purchaser fails to convert Shares
into Common Stock prior to any such offering, such that such
offering is not able to be completed, the Purchaser shall pay all
such other fees and expenses..
(d) In the case of any offering registered pursuant
to this Annex II, the Seller agrees to indemnify and hold the
Purchaser, each underwriter of Securities under such registration
and each person who controls any of the foregoing within the
meaning of Section 15 of the Securities Act and the directors and
officers of the Purchaser, harmless against any and all losses,
claims, damages, liabilities or action to which they or any of
them may become subject under the Securities Act or any other
statute or common law or otherwise, and to reimburse them for any
legal or other expenses reasonably incurred by them in connection
with investigating any claims and defending any actions, insofar
as any such losses, claims, damages, liabilities or actions shall
arise out of or shall be based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the
registration statement relating to the sale of such Subject
Stock, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary prospectus (as amended or supplemented if the Seller
shall have filed with the Commission any amendment thereof or
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supplement thereto), if used prior to the effective date of such
registration statement, or contained in the prospectus (as
amended or supplemented if the Seller shall have filed with the
Commission any amendment thereof or supplement thereto), or the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
provided, however, that the indemnification agreement contained
in this paragraph (d) shall not apply to such losses, claims,
damages, liabilities or actions which shall arise from the sale
of Subject Stock by the Purchaser if such losses, claims,
damages, liabilities or actions shall arise out of or shall be
based upon any such untrue statement or alleged untrue statement,
or any such omission or alleged omission, (x) made in reliance
upon and in conformity with information furnished in writing to
the Seller by the Purchaser or any such underwriter specifically
for use in connection with the preparation of the registration
statement or any preliminary prospectus or prospectus contained
in the registration statement or any such amendment thereof or
supplement thereto or (y) made in any preliminary prospectus, and
the prospectus contained in the registration statement in the
form filed by the Seller with the Commission pursuant to Rule
424(b) under the Securities Act shall have corrected such
statement or omission and a copy of such prospectus shall not
have been sent or given to such person at or prior to the
confirmation of such sale to him.
(e) In the case of each offering registered
pursuant to this Annex II, the Purchaser and each underwriter
participating therein shall agree, in the same manner and to the
same extent as set forth in paragraph (d) of this Annex II,
severally to indemnify and hold harmless the Seller and each
person, if any, who controls the Seller within the meaning of
Section 15 of the Securities Act, and the directors and officers
of the Seller, and in the case of each such underwriter, the
Purchaser, each person, if any, who controls the Purchaser within
the meaning of the Securities Act and the directors, officers and
partners of the Purchaser, with respect to any statement in or
omission from such registration statement or any preliminary
prospectus (as amended or as supplemented, if amended or
supplemented as aforesaid) or prospectus contained in such
registration statement (as amended or as supplemented, if amended
or supplemented as aforesaid), if such statement or omission
shall have been made in reliance upon and in conformity with
information furnished in writing to the Seller by the Purchaser
or such underwriter specifically for use in connection with the
preparation of such registration statement or any preliminary
prospectus or prospectus contained in such registration statement
or any such amendment thereof or supplement thereto.
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(f) Each party indemnified under paragraph (d) or
(e) of this Annex II shall, promptly after receipt of notice of
the commencement of any action against such indemnified party in
respect of which indemnity may be sought hereunder, notify the
indemnifying party in writing of the commencement thereof. The
omission of any indemnified party to so notify an indemnifying
party of any such action shall not relieve the indemnifying party
from any liability in respect of such action which it may have to
such indemnified party on account of the indemnity agreement
contained in paragraph (d) or (e) of this Annex II, unless the
indemnifying party was prejudiced by such omission, and in no
event shall relieve the indemnifying party from any other
liability which it may have to such indemnified party. In case
any such action shall be brought against any indemnified party
and it shall notify an indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it may desire, jointly with any
other indemnifying party similarly notified, to assume the
defense thereof, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such
indemnified party under paragraph (d) or (e) of this Annex II for
any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, other
than reasonable costs of investigation; provided, however, that
if there exists or is reasonably likely to exist a conflict of
interest that would make it inappropriate in the judgment of the
indemnified party, in its sole and absolute discretion, for the
same counsel to represent both the indemnified party and the
indemnifying party, then the indemnified party shall be entitled
to retain its own counsel, in each jurisdiction for which the
indemnified party determines counsel is required, at the expense
of the indemnifying party. No such third party claim may be
settled by the indemnifying party or the indemnified party
without the prior written consent of the other, which consent
shall not be unreasonably withheld.
(g) If the indemnification provided for under
paragraph (d) or (e) shall for any reason be held by a court to
be unavailable to an indemnified party under paragraph (d) or (e)
hereof in respect of any loss, claim, damage or liability, or any
action in respect thereof, then, in lieu of the amount paid or
payable under paragraph (d) or (e) hereof, the indemnified party
and the indemnifying party under paragraph (d) or (e) hereof
shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably
incurred in connection with investigating the same), (i) in such
proportion as is appropriate to reflect the relative fault of the
Seller and the prospective seller of Securities covered by the
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registration statement which resulted in such loss, claim, damage
or liability, or action in respect thereof, with respect to the
statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law,
in such proportion as shall be appropriate to reflect the
relative benefits received by the Seller and such prospective
seller from the offering of the securities covered by such
registration statement. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. In
addition, no Person shall be obligated to contribute hereunder
any amounts in payment for any settlement of any action or claim
effected without such Person's consent, which consent shall not
be unreasonably withheld.
(h) Notwithstanding anything to the contrary
contained in this Agreement, the maximum amount of indemnifiable
losses which may be recovered from an indemnifying party arising
out of or resulting from the causes enumerated in paragraph (d)
or (e) shall be an amount equal to the Purchase Price.
(i) Capitalized terms not defined in this Annex
shall have the meanings set forth in the Agreement.
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CONFORMED COPY
STOCK PURCHASE AGREEMENT
Between
INTERCEL, INC.
and
MPX SYSTEMS, INC.
Dated as of March 4, 1996
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms 1
ARTICLE II
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale of the Shares 6
SECTION 2.02. Purchase Price 6
SECTION 2.03. Closing 6
SECTION 2.04. Escrow 6
SECTION 2.05. Closing Deliveries by the Seller 6
SECTION 2.06. Closing Deliveries by the Purchaser 7
SECTION 2.07. Closing Deliveries by the Escrow Agent 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
SECTION 3.01. Organization, Authority and Qualification
of the Seller 7
SECTION 3.02. Capital Stock of the Seller 7
SECTION 3.03. Subsidiaries 8
SECTION 3.04. No Conflict 8
SECTION 3.05. Governmental Consents and Approvals 9
SECTION 3.06. Seller SEC Documents; Financial Statements 9
SECTION 3.07. No Undisclosed Liabilities 10
SECTION 3.08. Conduct in the Ordinary Course; Absence of
Certain Changes, Events and Conditions 10
SECTION 3.09. Litigation 10
SECTION 3.10. Compliance with Laws 10
SECTION 3.11. Full Disclosure 11
SECTION 3.12. Delivery of Certain Documents 11
SECTION 3.13. Private Placement 11
SECTION 3.14. FCC Regulations 11
SECTION 3.15. Brokers 11
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
SECTION 4.01. Organization and Authority of the Purchaser 11
SECTION 4.02. No Conflict 12
SECTION 4.03. Governmental Consents and Approvals 12
SECTION 4.04. Litigation 12
SECTION 4.05. Investment Purpose 13
SECTION 4.06. Accredited Investor 13
SECTION 4.07. Brokers 13
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Filing of Certificate of Designation 13
SECTION 5.02. Treatment of Shares as Equity 13
SECTION 5.03. Regulatory and Other Authorizations; Notices
and Consents 13
SECTION 5.04. Notice of Developments 14
SECTION 5.05. Registration Rights 14
SECTION 5.06. Resale Restrictions 14
SECTION 5.07. Registration of Shares 15
SECTION 5.08. Delivery of Certain Documents 15
SECTION 5.09. Seller Stockholders' Meeting 15
SECTION 5.10. Certain Information 15
SECTION 5.11. Conduct of Business of the Seller 16
SECTION 5.12. Further Action 16
ARTICLE VI
CONDITIONS TO CLOSING
SECTION 6.01. Conditions to Obligations of the Seller 16
SECTION 6.02. Conditions to Obligations of the Purchaser 18
ARTICLE VII
INDEMNIFICATION
SECTION 7.01. Survival of Representations and Warranties 20
SECTION 7.02. Indemnification 20
SECTION 7.03. Limits on Indemnification 22
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ARTICLE VIII
TERMINATION AND WAIVER
SECTION 8.01. Termination 22
SECTION 8.02. Effect of Termination 23
SECTION 8.03. Waiver 23
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. Expenses 24
SECTION 9.02. Notices 24
SECTION 9.03. Public Announcements 25
SECTION 9.04. Headings 25
SECTION 9.05. Severability 25
SECTION 9.06. Entire Agreement 26
SECTION 9.07. Assignment 26
SECTION 9.08. No Third Party Beneficiaries 26
SECTION 9.09. Amendment 26
SECTION 9.10. Governing Law 26
SECTION 9.11. Counterparts 26
SECTION 9.12. Specific Performance 26
EXHIBITS
Exhibit 2.04 Form of Escrow Agreement
ANNEXES
Annex I Certificate of the Designations, Powers, Preferences and
Relative, Participating or Other Rights, and the
Qualifications, Limitations or Restrictions Thereof, of
Series B Convertible Preferred Stock ($0.01 Par Value)
of InterCel, Inc.
Annex II Registration Rights
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