<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) of the
SECURITIES EXCHANGE ACT OF 1934
Date of report: February 25, 1998
Able Telcom Holding Corp.
(Exact name of registrant as specified in charter)
Florida 0-21986 65-0013218
(State or other (Commission (IRS employer
jurisdiction file number) identification no.)
of incorporation)
1601 Forum Place, Suite 1110, West Palm Beach, Florida 33401
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (561) 688-0400
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Item 2. Acquisition or Disposition of Assets.
On February 25, 1998, Able Telcom Holding Corp. ("Able"), through its
wholly owned subsidiary Georgia Electric Company ("GEC") acquired substantially
all of the assets, and assumed certain liabilities, of COMSAT RSI Acquisition,
Inc. (d/b/a COMSAT RSI JEFA Wireless Systems), a subsidiary of COMSAT
Corporation. As part of the transaction, GEC assumed certain construction
contracts with the Texas Department of Transportation and various other
telecommunication customers. GEC acquired the accounts receivable and fixed
assets of the seller and assumed its trade payables, and received a cash payment
from the seller at closing of $4,662,854.
COMSAT RSI JEFA Wireless Systems ("JEFA") is a provider of intelligent
traffic systems and wireless infrastructure services. JEFA operates in
twenty-one states with its main operations located in Texas and Alabama. JEFA
was engaged in the business of (a) installing, testing and maintaining
intelligent highway and traffic communication systems including computerized
management systems, wireless and fiber optic data networks, weather sensors,
voice , data and video systems and (b) the planning, engineering, construction
and maintenance of wireless networks. Able intends that its subsidiaries
will use the acquired assets to continue the business formerly engaged in by
JEFA.
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Item 7. Financial Statements and Exhibits.
The following financial statements, pro forma financial information and
exhibits are filed as part of this report:
(a) Financial Statements.
Financial statements relating to the acquisition described in Item 2 of
this report are not included herein but will be filed within 60 days after the
filing date of this report.
(b) Pro forma Financial Information.
Pro Forma financial information relating to the acquisition described in
Item 2 of this report is not included herein but will be filed, to the extent
required, within 60 days after the filing date of this report.
(c) Exhibits.
Exhibit
No. Description
2.1 Asset Purchase Agreement, dated November 26, 1997, among
Able Telcom Holding Corp., Georgia Electric Company, Transportation
Safety Contractors, Inc., COMSAT RSI Acquisition, Inc. and COMSAT
Corporation.*
2.2 Indemnification Agreement, dated February 25, 1998, among Able
Telcom Holding Corp., Georgia Electric Company, Transportation
Safety Contractors, Inc., COMSAT RSI Acquisition, Inc., and COMSAT
Corporation (To be filed by amendment).
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*Exhibits and schedules containing detailed asset and liability listings
and other disclosures have been omitted. Able agrees to furnish a copy of
such items supplementally to the Securities and Exchange Commission upon
request.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ABLE TELCOM HOLDING CORP.
By:
/s/ Billy V. Ray
--------------------------
Billy V. Ray
Chief Financial Officer
Date: March 12, 1998
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EXHIBIT INDEX
Exhibit
Number Description
2.1 Asset Purchase Agreement, dated November 26, 1997, among Able Telcom
Holding Corp., Georgia Electric Company, Transportation Safety
Contractors, Inc., COMSAT RSI Acquisition, Inc. and COMSAT
Corporation.
2.2 Indemnification Agreement, dated February 25, 1998, among
Able Telcom Holding Corp., Georgia Electric Company,
Transportation Safety Contractors, Inc., COMSAT RSI
Acquisition, Inc., and COMSAT Corporation (To be filed by
amendment).
<PAGE>
EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
between
Transportation Safety Contractors, Inc.,
Georgia Electric Company, Inc.,
Able Telcom Holding Corp.,
COMSAT RSI Acquisition, Inc.,
d.b.a. COMSAT RSI JEFA Wireless Systems
and
COMSAT Corporation
November 26, 1997
TABLE OF CONTENTS
1. Definitions................................................... 1
2. Basic Transaction............................................. 6
(a) Purchase and Sale of Assets............................. 6
(b) Assumption of Liabilities............................... 6
(c) Replacement of Performance Bonds........................ 6
(d) Purchase Price.......................................... 6
(e) Matters Relating to Work in Progress.................... 6
(f) The Closing............................................. 7
(g) Deliveries at the Closing............................... 7
(h) Allocation.............................................. 7
3. Representations and Warranties of Seller and COMSAT........... 7
(a) Organization of Seller.................................. 8
(b) Authorization of Transaction............................ 8
(c) Noncontravention........................................ 8
(d) Brokers' Fees........................................... 8
(e) Title to Assets......................................... 8
(f) Subsidiaries............................................ 8
(g) Legal Compliance........................................ 8
(h) Tax Matters............................................. 9
(i) Real Property........................................... 9
(j) Intellectual Property.................................. 10
(k) Stored Material........................................ 10
(l) Contracts.............................................. 10
(m) Notes and Accounts Receivable.......................... 10
(n) Litigation............................................. 10
(o) Employees.............................................. 11
(p) Environmental, Health, and Safety Matters.............. 11
(q) Insolvency Proceedings.................................. 12
4. Representations and Warranties of Buyer and Able.............. 12
(a) Organization of Buyer................................... 12
(b) Authorization of Transaction............................ 12
(c) Noncontravention........................................ 13
(d) Brokers' Fees........................................... 13
(e) Qualification with Texas Department of
Transportation.......................................... 13
(f) Legal Compliance........................................ 13
(g) Litigation.............................................. 13
(h) Insolvency Proceedings.................................. 14
5. Pre-Closing Covenants......................................... 14
(a) General................................................. 14
(b) Notices and Consents.................................... 14
(c) Preservation of Business................................ 14
(d) Access.................................................. 14
(e) Employees............................................... 14
6. Conditions to Obligation to Close............................. 15
(a) Mutual Conditions to Obligation of the Parties.......... 15
(b) Conditions to Obligation of Buyer and Able.............. 16
(c) Conditions to Obligation of Seller and COMSAT........... 17
7. Covenants..................................................... 17
(a) General................................................. 17
(b) Access to Information................................... 17
(c) Litigation Support...................................... 18
(d) Transition.............................................. 18
(e) Covenant Not to Compete................................. 18
8. Termination................................................... 19
(a) Termination of Agreement................................ 19
(b) Effect of Termination................................... 19
9. Indemnification and Related Matters........................... 19
(a) Survival of Representations and Warranties.............. 20
(b) Indemnification Provisions for Benefit of Buyer and
Able.................................................... 20
(c) Indemnification Provisions for Benefit of Seller and
COMSAT.................................................. 20
(d) Determination of Damages and Related Matters............ 20
(e) Matters Involving Third Parties......................... 21
(f) Other Indemnification Provisions........................ 23
10. Miscellaneous................................................. 23
(a) Press Releases and Public Announcements................. 23
(b) No Third-Party Beneficiaries............................ 23
(c) Entire Agreement........................................ 24
(d) Succession and Assignment............................... 24
(e) Counterparts............................................ 24
(f) Headings................................................ 24
(g) Notices................................................. 24
(h) Governing Law........................................... 25
(i) Amendments and Waivers.................................. 25
(j) Severability............................................ 26
(k) Expenses................................................ 26
(l) Construction............................................ 26
(m) Incorporation of Exhibits and Schedules................. 26
(n) Submission to Jurisdiction.............................. 26
40
ASSET PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of November 26, 1997,
among Able Telcom Holding Corp., a Florida corporation ("Able"), Transportation
Safety Contractors, Inc., a Florida corporation, and Georgia Electric Company,
Inc., a Georgia corporation (collectively, the "Buyer"), each of which is an
indirect wholly-owned subsidiary of Able, COMSAT Corporation, a District of
Columbia corporation ("COMSAT"), and COMSAT RSI Acquisition, Inc., a Delaware
corporation, doing business as COMSAT RSI JEFA Wireless Systems and an indirect
wholly-owned subsidiary of COMSAT (the "Seller"). The Buyer, Able, COMSAT and
Seller are referred to collectively herein as the "Parties."
This Agreement contemplates a transaction in which Buyer will purchase
substantially all of the assets (and assume certain of the liabilities) of
Seller in return for cash. Able and COMSAT acknowledge that each will benefit,
via their respective indirect ownership interests in Buyer and Seller, from the
proposed transaction and wish to make certain representations and covenants and
provide certain indemnities to induce Seller, Buyer and the other Parties to
enter into this transaction. COMSAT wishes to assign its rights and obligations
under certain agreements with the Texas Department of Transportation, and Buyer
wishes to accept such assignment and assume those obligations.
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. Definitions.1. Definitions.
"Acquired Assets" means all right, title and interest of Seller or
COMSAT in and to all of the assets identified on Exhibit A hereto, the
Pre-Closing Work in Progress, the Pre-Closing Stored Materials, and the Assigned
Contracts.
"Action" means any action, claim, suit, arbitration, inquiry,
proceeding or investigation by or before any court, any governmental, regulatory
or other administrative agency or commission or any arbitration tribunal.
"Adverse Consequences" means any and all direct losses, liabilities,
claims, damages, obligations, payments, costs and expenses (including, without
limitation, the costs and expenses of any and all Actions, threatened Actions,
demands, assessments, judgments, settlements and compromises relating thereto
and attorneys' fees and any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any such Actions or threatened
Actions), but shall not include indirect, special or consequential damages.
"Affiliate" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of 1934, as amended.
"Assigned Construction Contracts" has the meaning set forth in the
COMSAT Bill of Sale, Assignment and Assumption Agreement.
"Assigned Contracts" means the Assigned Construction Contracts
and the Assigned Seller Contracts.
"Assigned Seller Contracts" has the meaning set forth in the Seller
Bill of Sale, Assignment and Assumption Agreement.
"Assumed Liabilities" means the liabilities listed on Exhibit B
hereto and the obligations of COMSAT and Seller under the Assigned Contracts.
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or could form the basis for
any specified consequence.
"Buyer" has the meaning set forth in the preface above.
"Buyer's Offer Advice" has the meaning set forth in Section 5(e)
below.
"Buyer Qualification Application" has the meaning set forth in
Section 4(e) below.
"Closing" has the meaning set forth in Section 2(f) below.
"Closing Date" has the meaning set forth in Section 2(f)below.
"Closing Date Accounts Receivable" means the aggregate amount of
billed and unpaid accounts receivable (net of allowance for doubtful accounts)
included in the Acquired Assets, as of the close of business on the business day
prior to the Closing Date, as reflected in the schedule of the Closing Date
Accounts Receivable required to be delivered by Seller to Buyer pursuant to
Section 6(b)(vii) of this Agreement.
"Closing Date Trade Payables" means the aggregate amount of trade
payables included in the Assumed Liabilities, as of the close of business on the
business day prior to the Closing Date, as reflected in the schedule of the
Closing Date Trade Payables required to be delivered by Seller to Buyer pursuant
to Section 6(b)(vii) of this Agreement.
"Closing TXDOT Engineering Report" means any engineering report
issued by TXDOT pertaining to any Assigned Construction Contract for any period
of time that includes the Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended.
"COMSAT Bill of Sale, Assignment and Assumption Agreement" means the
Bill of Sale, Assignment and Assumption Agreement, in the form set forth in
Exhibit C-1, to be executed and delivered at the closing pursuant to Section
2(g) of this Agreement.
"Commitment Letter" means the commitment letter from the Surety,
dated as of November 5, 1997, delivered by Buyer to Seller, indicating that the
Surety is prepared to issue the Replacement Performance Bonds on behalf of Able
or Buyer in an aggregate principal amount of not less than $35 million.
"Confidentiality Agreement" means that certain confidentiality
agreement between COMSAT and Able dated as of August 12, 1997.
"Confidential Information" shall have the meaning ascribed to such
term in the Confidentiality Agreement.
"Disclosure Schedule" has the meaning set forth in Section 2
below.
"Employment Loss" has the meaning ascribed to such term in the
WARN Act.
"Environmental, Health, and Safety Requirements" shall mean all
federal, state, local and foreign statutes, regulations and ordinances
concerning public health and safety, worker health and safety, and pollution or
protection of the environment, including without limitation all those relating
to the presence, use, production, generation, handling, transportation,
treatment, storage, disposal, distribution, labeling, testing, processing,
discharge, release, threatened release, control, or cleanup of any hazardous
materials, substances or wastes, chemical substances or mixtures, pesticides,
pollutants, contaminants, toxic chemicals, petroleum products or byproducts,
asbestos, polychlorinated biphenyls, noise or radiation, each as amended and as
now in effect.
"Existing Performance Bonds" has the meaning set forth in Section
2(c) below.
"Indemnifying Party" has the meaning set forth in Section
9(d)(iii) below.
"Indemnitee" has the meaning set forth in Section 9(d)(iii) below.
"Indemnity Payment" has the meaning set forth in Section
9(d)(iii) below.
"Information" has the meaning set forth in Section 7(b) below.
"Intellectual Property" means (a) any inventions (whether patentable
or unpatentable and whether or not reduced to practice), any improvements
thereto, and any patents, patent applications, and patent disclosures, together
with any reissuances, continuations, continuations-in-part, revisions,
extensions, and reexaminations thereof, (b) any trademarks, service marks, trade
dress, logos, trade names, and corporate names, together with any translations,
adaptations, derivations, and combinations thereof and including any goodwill
associated therewith, and any applications, registrations, and renewals in
connection therewith, (c) any copyrightable works, any copyrights, and any
applications, registrations, and renewals in connection therewith, (d) any mask
works and any applications, registrations, and renewals in connection therewith,
(e) any trade secrets and confidential business information (including ideas,
research and development, know-how, formulas, compositions, manufacturing and
production processes and techniques, technical data, designs, drawings,
specifications, customer and supplier lists, pricing and cost information, and
business and marketing plans and proposals), (f) any computer software
(including data and related documentation), (g) any other proprietary rights,
and (h) any copies and tangible embodiments thereof (in whatever form or
medium).
"Knowledge" in the case of any Party means the actual conscious
knowledge of the persons listed on Exhibit D hereto (or their successors, if no
longer employed by a Party) specified for such Party assuming reasonable
investigation of such persons.
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"McKinney Office" has the meaning set forth in Section 5(e).
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Pre-Closing Period" means the period commencing on the date of this
Agreement and ending on the Closing Date.
"Pre-Closing Stored Materials" means Stored Materials acquired by
Seller during the period of time covered by any Closing TXDOT Engineering Report
on or prior to the Closing Date for which payment has not been received.
"Pre-Closing Work in Progress" means Work in Progress performed by
Seller during the period covered by any Closing TXDOT Engineering Report on or
prior to the Closing Date.
"Pre-Signing Period" means the 90-day period prior to the date of
this Agreement.
"Post-Closing Stored Materials" means Stored Materials acquired
by Buyer subsequent to the Closing Date.
"Post-Closing Work in Progress" means Work in Progress performed by
Buyer during the period covered by any Closing TXDOT Engineering Report
subsequent to the Closing Date.
"Prior TXDOT Engineering Report" means any engineering report issued
by TXDOT pertaining to any Assigned Construction Contract for any period of time
prior to, but which does not include, the Closing Date.
"Purchase Price" has the meaning set forth in Section 2(d) below.
"Replacement Performance Bonds" has the meaning set forth in
Section 2(c) below.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for Taxes not yet due and payable, (c) purchase
money liens and liens securing rental payments under capital lease arrangements,
and (d) other liens arising in the Ordinary Course of Business and not incurred
in connection with the borrowing of money.
"Seller Bill of Sale, Assignment and Assumption Agreement" means the
Bill of Sale, Assignment and Assumption Agreement, in the form set forth in
Exhibit C-2, to be executed and delivered at the closing pursuant to Section
2(g) of this Agreement.
"Seller's Employment Loss Advice" has the meaning set forth in
Section 5(e) below.
"Stored Materials" means materials acquired for, and billable to,
TXDOT or a TXDOT prime contractor in accordance with the specific line items,
specifications and requirements of the Assigned Construction Contracts.
"Stored Materials Pending Collection" means Stored Materials
acquired and billed to TXDOT or a TXDOT prime contractor by Seller during any
period covered by a Prior TXDOT Engineering Report, for which payment not been
received as of the Closing Date and which are not included in the accounts
receivable included in the Acquired Assets.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"Surety" means Liberty Bond Services or other surety firm acceptable
to TXDOT and the Parties.
"Tax" means any federal, state, local or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code Section
59A), customs duties, capital stock, franchise, profits, withholding, social
security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or add-on
minimum, estimated, or other tax of any kind whatsoever, including any interest,
penalty, or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
"Third Party Claim" has the meaning set forth in Section 9(e)(i)
below.
"TXDOT" means the Texas Department of Transportation.
"WARN Act" means the Worker Adjustment and Retraining
Notification Act of 1988.
"WARN Act Notice" has the meaning set forth in Section 5(e) below.
"Work in Progress" means (a) work completed but unbilled that is
billable to TXDOT at the next billing cycle pursuant to the Assigned
Construction Contracts.
2. Basic Transaction.2. Basic Transaction.
(a)...Purchase and Sale of Assets.a) Purchase and Sale of Assets. On
and subject to the terms and conditions of this Agreement, Buyer agrees to
purchase from Seller, and Seller agrees to sell, transfer, convey, and deliver
to Buyer, all of the Acquired Assets at the Closing for the consideration
specified below in this Section 2.
(b)...Assumption of Liabilities.b) Assumption of Liabilities. On and
subject to the terms and conditions of this Agreement, Buyer agrees to assume
and become responsible for all of the Assumed Liabilities at the Closing.
Neither Buyer nor Able shall assume or have any responsibility, however, with
respect to any obligation or Liability of Seller or COMSAT, other than (in the
case of Buyer) the Assumed Liabilities.
(c)...Replacement of Performance Bonds.c) Replacement of Performance
Bonds. COMSAT has delivered to Buyer or Able a correct and complete copy of each
performance or surety bond posted by or on behalf of COMSAT in connection with
the Assigned Contracts (the "Existing Performance Bonds"). On and subject to the
terms and conditions of this Agreement, Able and Buyer shall use good faith,
commercially reasonable efforts to (i) post or cause to be posted performance or
surety bonds (the "Replacement Performance Bonds") in an amount equal, and on
terms comparable, to the Existing Performance Bonds or, in the case of the
Assigned Construction Contracts, in such amounts and on such terms as may be
required by TXDOT, and (ii) cause COMSAT and Seller to be released from any
continuing obligation under the Existing Performance Bonds. Prior to the
execution and delivery of this Agreement, Able and Buyer delivered to COMSAT and
Seller the Commitment Letter. Able and Buyer will advise COMSAT and Seller in
the event that the Commitment Letter is terminated, revoked or modified for any
reason.
(d)...Purchase Price.d) Purchase Price. Seller shall pay Buyer at
the Closing the sum of $8,815,662 plus the Closing Date Trade Payables, less (i)
the Closing Date Accounts Receivable, (ii) the Pre-Closing Work in Progress and
(iii) the Pre-Closing Stored Materials (the "Purchase Price") by wire transfer
or delivery of other immediately available funds. The Parties acknowledge and
agree that the assumption by Buyer of the Assumed Liabilities in exchange for
the transfer of the Acquired Assets by Seller to Buyer and payment of the
Purchase Price constitutes reasonably equivalent value and is equivalent to the
price or value for which Seller would have sold, and Buyer would have purchased,
the Acquired Assets individually or in the aggregate in an arms' length
transaction.
(e)...Work in Progress and Stored Materials.e) Work in Progress and
Stored Materials. For each Assigned Construction Contract, Seller shall maintain
records of the Pre-Closing Work in Progress and Pre-Closing Stored Materials,
and Buyer shall maintain records of the Post-Closing Work in Progress and
Post-Closing Stored Materials. In each case, the value assigned to Work in
Progress and Stored Materials shall be determined based on the sum of the
line-item amounts specified in the Assigned Construction Contract for each
component of the Work in Progress and Stored Materials. If the aggregate value
of the Pre-Closing and Post-Closing Work in Progress and Stored Materials
exceeds the value of the Work in Progress and Stored Materials authorized for
payment by TXDOT in the Closing TXDOT Engineering Report with respect to any
Assigned Construction Contract, Buyer and Seller shall use commercially
reasonable efforts in good faith to resolve any discrepancies between their
respective records. If Buyer and Seller are unable to resolve any such
discrepancy, the discrepancy shall be submitted to an independent third party
consultant, mutually acceptable to Buyer and Seller, for a recommendation, which
shall be prepared and submitted to the parties no later than 45 days after the
Closing Date. The expense of such consultant shall be borne equally by Buyer and
Seller. If Buyer and Seller are unable to reach agreement as to the value of the
Pre-Closing and Post-Closing Work in Progress and Stored Materials within ten
days following receipt of the recommendation, any continuing discrepancy as to
such value shall be settled by arbitration before a single arbitrator in
accordance with the commercial arbitration rules of the American Arbitration
Association, who shall issue a ruling no later than 75 days after the Closing
Date. The award of any such arbitrator shall be final. Judgment upon such award
may be entered by any Party in any federal or state court of competent
jurisdiction sitting in Dallas County, Texas. The costs of arbitration
proceedings, excluding attorneys' fees, shall be paid by the party that does not
prevail in the arbitration proceedings. If Buyer receives payment for any Stored
Materials Pending Collection, Buyer shall remit such payments to Seller within
five business days after receipt.
(f)...The Closing.f) The Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Patton Boggs, L.L.P., 2626 Cole Avenue, Suite 700 Dallas, Texas, commencing
at 9:00 a.m. local time on the second business day following the satisfaction or
waiver of all conditions to the obligations of the Parties to consummate the
transactions contemplated hereby (other than conditions with respect to actions
the respective Parties will take at the Closing itself) or such other date as
the Parties may mutually determine (the "Closing Date").
(g)...Deliveries at the Closing.g) Deliveries at the Closing. At the
Closing, (i) Seller shall deliver to Buyer the various certificates, instruments
and documents referred to in Section 6(b) below; (ii) Buyer shall deliver to
Seller the various certificates, instruments and documents referred to in
Section 6(c) below; (iii) Buyer and COMSAT shall execute and deliver the COMSAT
Bill of Sale, Assignment and Assumption Agreement; (iv) Buyer and Seller shall
execute and deliver the Seller Bill of Sale, Assignment and Assumption
Agreement; (v) Seller and COMSAT (if appropriate) shall execute, acknowledge (if
appropriate), and deliver to Buyer assignments and such other instruments of
sale, transfer, conveyance and assignment as Buyer and its counsel reasonably
may request; and (vi) the applicable Parties shall deliver the consideration
specified in Section 2(d) above.
(h)...Allocation.h) Allocation. The Parties agree to allocate the
Purchase Price (and all other capitalizable costs) among the Acquired Assets and
Assumed Liabilities for all purposes (including financial accounting and tax
purposes) in accordance with the allocation schedule attached hereto as Exhibit
E. To the extent the Parties are required under Section 1060 of the Code, and
the regulations thereunder, to file with the Internal Revenue Service on Form
8594 (Asset Acquisition Statement) a more detailed allocation of the aggregate
purchase price among the various assets transferred and liabilities assumed
pursuant to the terms of this Agreement, each party shall cooperate with the
other so that the information shown on Form 8594 filed with the Internal Revenue
Service by such party will be consistent with the information on the other
party's Form 8594.
3. Representations and Warranties of Seller and COMSAT.3. Representations
and Warranties of Seller and COMSAT. Each of Seller and COMSAT represents and
warrants to Buyer and Able that the statements contained in this Section 3 are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section 3),
except as set forth in the disclosure schedule accompanying this Agreement and
initialed by the Parties (the "Disclosure Schedule"). The Disclosure Schedule
will be arranged in paragraphs corresponding to the lettered and numbered
paragraphs contained in this Section 3.
(a)...Organization of Seller.a) Organization of Seller. Each of
Seller and COMSAT is a corporation duly organized, validly existing, and in good
standing under the laws of its respective jurisdiction of incorporation.
(b)...Authorization of Transaction.b) Authorization of Transaction.
Each of Seller and COMSAT has full power and authority (including full corporate
power and authority) to execute and deliver this Agreement and to perform its
respective obligations hereunder. Without limiting the generality of the
foregoing, the boards of directors of Seller and COMSAT have duly authorized the
execution, delivery, and performance of this Agreement by Seller and COMSAT.
This Agreement constitutes the valid and legally binding obligation of Seller
and COMSAT, enforceable in accordance with its terms and conditions.
(c)...Noncontravention.c) Noncontravention. Neither the execution
and the delivery of this Agreement, nor the consummation of the transactions
contemplated hereby (including the assignments and assumptions referred to in
Section 2 above), will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Seller or COMSAT is subject
or any provision of the charter or bylaws of Seller or COMSAT, or (ii) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Seller or COMSAT is a party or by
which it is bound or to which any of its assets is subject (or result in the
imposition of any Security Interest upon any of its assets), except for any such
conflict, breach, default, acceleration, termination, modification, cancellation
or notice as would not (A) adversely affect the ability of Seller or COMSAT to
effect the transactions contemplated by this Agreement, (B) have a material
adverse effect on the Acquired Assets, or (C) result in the Buyer or Able having
assumed a liability other than an Assumed Liability. Neither Seller nor COMSAT
is required to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order to consummate the transactions contemplated by this Agreement (including
the assignments and assumptions referred to in Section 2 above).
(d)...Brokers' Fees.d) Brokers' Fees. Neither Seller nor COMSAT has
any Liability or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the transactions contemplated by this Agreement
for which Buyer or Able could become liable or obligated.
(e)...Title to Assets.e) Title to Assets. Seller or COMSAT, as the
case may be, has good and marketable title to, or a valid leasehold interest in,
the Acquired Assets, free and clear of all Security Interests or restriction on
transfer.
(f)...Subsidiaries.f) Subsidiaries. Seller has no Subsidiaries.
(g)...Legal Compliance.g) Legal Compliance. Seller and COMSAT have
complied in all material respects with all applicable laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and all
agencies thereof), the failure prior to the Closing to comply with which would
have a material adverse effect on the Acquired Assets or would result in the
Buyer or Able having assumed a liability other than an Assumed Liability. No
action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against Seller alleging any
failure to comply with all applicable laws (including rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder)
of federal, state, local, and foreign governments (and all agencies thereof),
the failure prior to the Closing to comply with which would have a material
adverse effect on the Acquired Assets or would result in the Buyer or Able
having assumed a liability other than an Assumed Liability. Notwithstanding the
foregoing, Seller and COMSAT make no representation in this Section 3(g) with
respect to laws, rules, regulations, or codes that are incorporated by reference
into any Assigned Construction Contracts.
(h)...Tax Matters.h) Tax Matters. All Taxes owed by Seller (whether
or not shown on any Tax Return) which are currently due and payable have been
paid, except for such instances of non-payment prior to or after the Closing
Date as would not result in a lien upon the Acquired Assets, otherwise have a
material adverse effect on the Acquired Assets or result in Buyer or Able having
assumed a liability other than an Assumed Liability. There are no Security
Interests on any of the assets of Seller that arose in connection with any
failure (or alleged failure) to pay any Tax.
(i)...Real Property.i) Real Property. Seller owns no real property.
Section 3(i) of the Disclosure Schedule lists and describes briefly all real
property, other than the McKinney Office, leased to Seller (none of which is
leased pursuant to a sublease). Seller has delivered to Buyer correct and
complete copies of the leases (as amended to date) listed in Section 3(i) of the
Disclosure Schedule. With respect to each lease listed in Section 3(i) of the
Disclosure Schedule:
(i) the lease is legal, valid, binding, enforceable, and in
full force and effect, except as may be limited by bankruptcy,
reorganization, insolvency, moratorium, fraudulent transfer, or other
similar laws affecting creditors' rights and general principles of equity;
(ii) as to each lease, Seller is not, and to the Knowledge of
Seller and COMSAT, each other party to such lease is not, in breach or
default of the terms thereof, and, to the Knowledge of Seller and COMSAT,
no event has occurred which, with notice or lapse of time, would
constitute a breach or default or permit termination, modification, or
acceleration thereunder;
(iii) Seller has not, and to the Knowledge of Seller and
COMSAT, no party to the lease, has repudiated any provision thereof;
(iv) there are no disputes, material oral agreements, or
forbearance programs in effect as to the lease;
(v) Seller has not assigned, transferred, conveyed,
subleased, mortgaged, deeded in trust, or encumbered any interest in
the leasehold;
(vi) all facilities leased thereunder have received all
approvals of governmental authorities (including licenses and permits)
required in connection with the operation thereof and have been operated
and maintained in accordance with applicable laws, rules, and regulations,
except where the failure prior to the Closing to comply with, or obtain,
would not have a material adverse effect on the Acquired Assets or result
in the Buyer or Able having assumed a liability other than an Assumed
Liability; and
(vii) all facilities leased thereunder are supplied with
utilities and other services necessary for the operation of said
facilities.
(j)...Intellectual Property.j) Intellectual Property. The current
use of the Acquired Assets by Seller does not infringe upon, misappropriate, or
otherwise violate any Intellectual Property rights of third parties, except for
such instances of infringement, misappropriation or violation as would not have
a material adverse effect on the Acquired Assets or result in the Buyer or Able
having assumed a liability other than an Assumed Liability.
(k)...Stored Material.k) Stored Material. The Stored Material of
Seller included in the Acquired Assets consists of materials and supplies
procured for use in connection with the Assigned Construction Contracts, has not
been invoiced to any customer and meets the specifications set forth in the
Assigned Construction Contract with respect to which the material was procured.
(l)...Contracts.l) Contracts. Seller or COMSAT has delivered to
Buyer a correct and complete copy of each agreement that constitutes an Assigned
Contract, a list of which is set forth in Section 3(l) of the Disclosure
Schedule. With respect to each such agreement: (A) the agreement is legal,
valid, binding, enforceable, and in full force and effect; (B) (other than the
Assigned Construction Contracts as to which no representation or warranty in
this clause (B) is made) Seller or COMSAT, as the case may be, is not in breach
or default thereof; (C) to the Knowledge of Seller or COMSAT, no other party
thereto is in breach or default thereof; (D) (other than with respect to the
Assigned Construction Contracts as to which no representation or warranty in
this clause D is made) to the Knowledge of Seller or COMSAT, no event has
occurred which with notice or lapse of time would constitute a breach or
default, or permit termination, modification, or acceleration, under the
agreement; and (E) to the Knowledge of Seller or COMSAT, no party has repudiated
any provision of the agreement.
(m)...Notes and Accounts Receivable.m) Notes and Accounts
Receivable. The billed and outstanding accounts receivable of Seller set forth
on Exhibit A are, and the Closing Date Accounts Receivable as of the Closing
Date shall be, (i) valid receivables created in the ordinary course of business,
(ii) subject to no setoffs or counterclaims, and (iii) collectible in an amount,
when aggregated with any amounts collected in respect of all other accounts
receivable (or rights to create receivables by billing for work performed or
goods sold) included in the Acquired Assets, not less than the amount of the
Closing Date Accounts Receivable, except to the extent not collectible because
of Buyer's failure to use good faith, commercially reasonable efforts to attempt
to collect such accounts receivable.
(n)...Litigation.n) Litigation. Section 3(n) of the Disclosure
Schedule sets forth each instance in which Seller (i) is subject to any
outstanding injunction, judgment, order, decree, ruling, or criminal charge or
(ii) is a party or, to the Knowledge of Seller and COMSAT, is threatened to be
made a party to any action, suit, proceeding, hearing, or investigation of, in,
or before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator which relates to
the Acquired Assets or could give rise to any lien or claim against the Acquired
Assets.
(o)...Employees.o) Employees. Section 3(o) of the Disclosure
Schedule lists the employees of the Seller and indicates, in the case of
salaried employees, the salary of each employee on an annualized basis and, in
the case of non-salaried employees, each employee's hourly rate. Seller is not a
party to or bound by any collective bargaining agreement.
(p)...Environmental, Health, and Safety Matters.p) Environmental,
Health, and Safety Matters. Seller has complied and is in compliance with all
Environmental, Health, and Safety Requirements, except where the failure prior
to the Closing to comply would not have a material adverse effect on the
Acquired Assets or result in the Buyer or Able having assumed a liability other
than an Assumed Liability.
(i) Without limiting the generality of the foregoing, Seller
has obtained, has complied with and is in compliance with all permits,
licenses and other authorizations that are required pursuant to
Environmental, Health, and Safety Requirements for the occupation of its
facilities and the operation of its business, except where the failure to
comply would not have a material adverse effect on the Acquired Assets or
result in the Buyer having assumed a liability other than an Assumed
Liability. A list of all such permits, licenses and other authorizations
is set forth on Section 3(p)(i) of the Disclosure Schedule.
(ii) Neither Seller nor COMSAT has received any written
notice, report or, to the Knowledge of Seller or COMSAT, other information
or communication regarding any actual or alleged violation of
Environmental, Health, and Safety Requirements, or any liabilities or
potential liabilities (whether accrued, absolute, contingent, unliquidated
or otherwise), including any investigatory, remedial or corrective
obligations, relating to Seller's business or its facilities arising under
Environmental, Health, and Safety Requirements.
(iii) None of the following exists at any property or facility
owned or operated by Seller: (1) underground storage tanks, (2)
asbestos-containing material in any form or condition, (3) materials or
equipment containing polychlorinated biphenyls, or (4) landfills, surface
impoundments, or disposal areas, except to the extent that the existence
of such materials would not have a material adverse effect on the Acquired
Assets or result in the Buyer having assumed a liability other than an
Assumed Liability.
(iv) Seller has not treated, stored, disposed of, arranged for
or permitted the disposal of, transported, handled, or released any
hazardous substance, or owned or operated any property or facility (and no
such property or facility is contaminated by any such substance) in a
manner that has given or would give rise to liabilities, including any
liability for response costs, corrective action costs, personal injury,
property damage, natural resources damages or attorney fees, pursuant to
the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended ("CERCLA"), the Solid Waste Disposal Act, as amended
("SWDA") or any other Environmental, Health, and Safety Requirements,
except for actions or liabilities which would not have a material adverse
effect on the Acquired Assets or result in the Buyer having assumed a
liability other than an Assumed Liability.
(v) Neither this Agreement nor the consummation of the
transactions that are the subject of this Agreement will result in any
obligations for site investigation or cleanup, or notification to or
consent of government agencies or third parties, pursuant to any of the
so-called "transaction-triggered" or "responsible property transfer"
Environmental, Health, and Safety Requirements; except for such
obligations, notifications or consents which would not have a material
adverse effect on the Acquired Assets or result in the Buyer or Able
having assumed a liability other than an Assumed Liability.
(vi) to the Knowledge of Seller and COMSAT, Seller has not,
either expressly or by operation of law, assumed or undertaken any
liability, including without limitation any obligation for corrective or
remedial action, of any other Person relating to Environmental, Health,
and Safety, except where such assumption or undertaking would not have a
material adverse effect on the Acquired Assets or result in the Buyer
having assumed a liability other than an Assumed Liability.
(vii) to the Knowledge of Seller and COMSAT, no facts, events
or conditions relating to the past or present facilities, properties or
operations of Seller will prevent, hinder or limit continued compliance
with Environmental, Health, and Safety Requirements, give rise to any
investigatory, remedial or corrective obligations pursuant to
Environmental, Health, and Safety Requirements, or give rise to any other
liabilities (whether accrued, absolute, contingent, unliquidated or
otherwise) pursuant to Environmental, Health, and Safety Requirements,
including without limitation any relating to onsite or offsite releases or
threatened releases of hazardous materials, substances or wastes, personal
injury, property damage or natural resources damage, except for such
facts, events or conditions as would not have a material adverse effect on
the Acquired Assets or result in the Buyer having assumed a liability
other than an Assumed Liability.
(q)...Insolvency Proceedings.q) Insolvency Proceedings. Neither
COMSAT nor Seller are the subject of any pending or, to the knowledge of COMSAT
and Seller, threatened insolvency proceedings of any character, including
without limitation bankruptcy, receivership, reorganization, composition or
arrangement with creditors, voluntary or involuntary. Neither COMSAT nor Seller
has made an assignment for the benefit of creditors or taken any action with a
view to institution of any such insolvency proceedings.
4. Representations and Warranties of Buyer and Able.4. Representations and
Warranties of Buyer and Able. Each of Buyer and Able represents and warrants to
Seller and to COMSAT that the statements contained in this Section 4 are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this Section 4), except as
set forth in the Disclosure Schedule. The Disclosure Schedule will be arranged
in paragraphs corresponding to the lettered and numbered paragraphs contained in
this Section 4.
(a)...Organization of Buyer.a) Organization of Buyer. Each of Buyer
and Able is a corporation duly organized, validly existing, and in good standing
under the laws of its respective jurisdiction of incorporation.
(b)...Authorization of Transaction.b) Authorization of Transaction.
Each of Buyer and Able has full power and authority (including full corporate
power and authority) to execute and deliver this Agreement and to perform its
obligations hereunder. Without limiting the generality of the foregoing, the
boards of directors of Buyer and Able have duly authorized the execution,
delivery, and performance of this Agreement by Buyer and Able. This Agreement
constitutes the valid and legally binding obligation of Buyer and Able,
enforceable in accordance with its terms and conditions.
(c)...Noncontravention.c) Noncontravention. Neither the execution
and the delivery of this Agreement, nor the consummation of the transactions
contemplated hereby (including the assignments and assumptions referred to in
Section 2 above), will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Buyer or Able is subject or
any provision of its charter or bylaws or (ii) conflict with, result in a breach
of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which Buyer or Able is a party or by which it is bound or to
which any of its assets is subject, except for any such conflict, breach,
default, acceleration, termination, modification, cancellation or notice as
would not adversely affect the ability of Buyer or Able to effect the
transactions contemplated by this Agreement. Neither Buyer nor Able is required
to give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement (including the
assignments and assumptions referred to in Section 2 above).
(d)...Brokers' Fees.d) Brokers' Fees. Neither Buyer nor Able has any
Liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement for which
Seller or COMSAT could become liable or obligated.
(e)...Qualification with Texas Department of Transportation.e)
Qualification with Texas Department of Transportation. Buyer has applied to
qualify with TXDOT as an approved contractor on construction projects of the
type undertaken by Seller or COMSAT pursuant to the Assigned Construction
Contracts in an aggregate amount which exceeds the aggregate amount of the
Assigned Construction Contracts and any existing contracts or subcontracts Buyer
may have with TXDOT (the "Buyer Qualification Application").
(f)...Legal Compliance.f) Legal Compliance. Buyer and Able have
complied in all material respects with all applicable laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and all
agencies thereof), the failure prior to the Closing to comply with which would
have a material adverse effect on the ability of Buyer or Able to consummate the
transactions contemplated by this Agreement. No action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand, or notice has been
filed or commenced against Buyer or Able alleging any failure to comply with all
applicable laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of federal, state,
local, and foreign governments (and all agencies thereof), the failure prior to
the Closing to comply with which would have a material adverse effect on the
ability of Buyer or Able to consummate the transactions contemplated by this
Agreement.
(g)...Litigation.g) Litigation. Section 4(g) of the Disclosure
Schedule sets forth each instance in which Buyer or Able (i) is subject to any
outstanding injunction, judgment, order, decree, ruling, or criminal charge or
(ii) is a party or, to the knowledge of Buyer or Able, is threatened to be made
a party to any action, suit, proceeding, hearing, or investigation of, in, or
before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator which relates the
transactions contemplated by this Agreement or which would have a material
adverse effect on the ability of Buyer or Able to consummate the transactions
contemplated by this Agreement.
(h)...Insolvency Proceedings.h) Insolvency Proceedings. Neither Able
nor Buyer are the subject of any pending or, to the knowledge of Able and Buyer,
threatened insolvency proceedings of any character, including without limitation
bankruptcy, receivership, reorganization, composition or arrangement with
creditors, voluntary or involuntary. Neither Able nor Buyer has made an
assignment for the benefit of creditors or taken any action with a view to
institution of any such insolvency proceedings.
5. Pre-Closing Covenants.5. Pre-Closing Covenants. The Parties
agree as follows with respect to the period between the execution of this
Agreement and the Closing.
(a)...General.a) General. Each of the Parties shall proceed in good
faith and use commercially reasonable efforts to take all action and to do all
things necessary, proper, or advisable in order to consummate and make effective
the transactions contemplated by this Agreement (including satisfaction, but not
waiver, of the closing conditions set forth in Section 6 below).
(b)...Notices and Consents.b) Notices and Consents. Buyer, Seller,
COMSAT and Able shall give any notices to third parties, and each will use
commercially reasonable efforts to obtain any third party consents that the
other reasonably may request to consummate the transactions contemplated hereby.
Each of the Parties shall give any notices to, make any filings with, and use
commercially reasonable efforts to obtain any authorizations, consents, and
approvals of governments and governmental agencies in connection with the
matters referred to in Section 3(c) and Section 4(c) above.
(c)...Preservation of Business.c) Preservation of Business. Seller
shall use commercially reasonable efforts to keep its business and properties
substantially intact, including its present operations, physical facilities,
working conditions, and relationships with lessors, licensors, suppliers,
customers, and employees. Without limiting the generality of the foregoing,
Seller shall not agree to any amendment to any Assigned Contract without the
express written consent of Able or Buyer, which consent shall not be
unreasonably withheld or delayed.
(d)...Access.d) Access. Seller shall permit representatives of Buyer
and Able to have reasonable access during normal working hours, and in a manner
so as not to interfere with the normal business operations of Seller to all
premises, properties, personnel, books, records (including Tax records),
contracts, and documents of or pertaining to Seller; provided that all
Confidential Information obtained by Buyer or Able shall be maintained pursuant
to the terms of the Confidentiality Agreement.
(e)...Employees.e) Employees. Buyer shall evaluate Seller's
employees for employment with Buyer (but shall have no obligation to hire any of
Seller's employees). As soon as practical but, in any event no later than 15
days after the date hereof, Buyer shall advise Seller of the Employees listed in
Section 3(o) of the Disclosure Schedule to whom Buyer intends to offer
employment after the Closing (the "Buyer's Offer Advice"). Seller represents to
Buyer than none of its facilities have more than 50 employees, other than
Seller's office in McKinney, Texas (the "McKinney Office"). Prior to execution
of this Agreement, Seller has advised Buyer of the number of employees of Seller
who have experienced an employment loss ("Employment Loss"), as such term is
defined for purposes of the Worker Adjustment and Retraining Notification Act of
1988 (as amended, the "WARN Act"), within the 90 day period prior to the date
hereof (the "Pre-Signing Period"), and Seller shall advise Buyer of the number
of employees who experience an employment loss on and after the date hereof
through the Closing (the "Pre-Closing Period") (such advice is hereafter
collectively referred to as the "Seller's Employment Loss Advice"). If, based on
the Buyer's Offer Advice, it appears that the aggregate number of employees of
Seller who have experienced or appear likely to experience an Employment Loss
will exceed 50 at any one location prior to the Closing, then Seller shall
either (i) prepare and promptly file notice under the WARN Act, if required (the
"WARN Act Notice"), or (ii) continue to employ a sufficient number of employees
for a sufficient period of time so that the notice provisions of the WARN Act
are no longer applicable. Commencing on and after the Closing Date, if the
aggregate number of employees of Seller who have experienced an Employment Loss
prior to the Closing based on the Seller's Employment Loss Advice, together with
the aggregate number of employees of Seller offered employment by Buyer who have
experienced or appear likely to experience an Employment Loss, would exceed 50
employees at any one location during any consecutive 90 day period within the
Pre-Signing Period, Pre-Closing Period or period subsequent to the Closing,
assuming a WARN Act Notice previously has not been filed by Seller, then Buyer
shall either (i) prepare and promptly file a WARN Act Notice, if required, or
(ii) continue to employ a sufficient number of employees for a sufficient period
of time so that the notice provisions of the WARN Act are no longer applicable.
In the event that the Buyer elects to proceed with the option described in
clause (ii) of the preceding sentence, Seller shall provide transition office
space to Buyer for such employees at the McKinney Office on terms to be mutually
agreed upon by Buyer and Seller during any such period.
6. Conditions to Obligation to Close.6. Conditions to
Obligation to Close.
(a)...Mutual Conditions to Obligation of the Parties.a) Mutual
Conditions to Obligation of the Parties. The obligations of the Parties to
consummate the contemplated transactions at the Closing shall be subject to
satisfaction of the following conditions:
(i) TXDOT shall have approved the Buyer's Qualification
Application and such approval shall remain in full force and effect as of
the Closing Date;
(ii) TXDOT shall have consented to the assignment by COMSAT to
Buyer of the Assigned Construction Contracts on terms mutually acceptable
to the Seller and Buyer;
(iii) the Closing shall have occurred on or before January 15,
1998, if notice under the WARN Act is not required or February 15, 1998 if
such notice is required; and
(iv) the Parties shall have procured all of the third party
consents specified in Section 3(c) and 4(c) above.
The Parties may waive any condition specified in this Section 6(a)
by executing a writing so stating at or prior to the Closing.
(b)...Conditions to Obligation of Buyer and Able.b) Conditions to
Obligation of Buyer and Able. The obligations of Buyer and Able to consummate
the transactions to be performed by them in connection with the Closing is
subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in
Section 3 above shall be true and correct at and as of the Closing Date;
(ii) Seller and COMSAT shall have performed and complied with
all of their covenants hereunder in all material respects through the
Closing;
(iii) Seller shall have received consent and estoppel
certificates in form reasonably satisfactory to Buyer from the other
parties to the real estate leases that comprise the Assigned Seller
Contracts;
(iv) The Acquired Assets and the Assumed Liabilities shall be
substantially in the same condition on the Closing Date as on the date of
execution of this Agreement, subject to changes occurring in the Ordinary
Course of Business;
(v) Buyer shall have received from Seller unaudited balance
sheets and statements of income and cash flow as of and for the periods
ended October 31, 1997, and December 31, 1996, 1995 and 1994;
(vi) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (C) affect adversely the right of Buyer to own the
Acquired Assets and to operate the former businesses of Seller in any
material respect (and no such injunction, judgment, order, decree, ruling,
or charge shall be in effect);
(vii) On the Closing Date, Seller shall have delivered to
Buyer a schedule setting forth the Closing Date Accounts Receivable, the
Closing Date Trade Payables, the Pre-Closing Work in Progress and the
Pre-Closing Stored Materials;
(viii) Seller shall have delivered to Buyer and Able a
certificate to the effect that each of the conditions specified above in
Section 6(a) and this Section 6(b) are satisfied in all material respects;
and
(ix) all actions to be taken by Seller or COMSAT in connection
with consummation of the transactions contemplated hereby and all
certificates, instruments, and other documents required to effect the
transactions contemplated hereby shall have been taken or executed and
delivered in form and substance reasonably satisfactory to Buyer and Able.
Buyer or Able may waive any condition specified in this Section 6(b)
by executing a writing so stating at or prior to the Closing.
(c)...Conditions to Obligation of Seller and COMSAT.c) Conditions to
Obligation of Seller and COMSAT. The obligations of Seller and COMSAT to
consummate the transactions to be performed by them in connection with the
Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in
Section 4 above shall be true and correct at and as of the Closing Date;
(ii) Buyer and Able shall have performed and complied with all
of their respective covenants hereunder in all material respects through
the Closing;
(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement or (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation (and no such injunction, judgment, order, decree, ruling, or
charge shall be in effect);
(iv) Buyer or Able shall have posted the Replacement
Performance Bonds, and COMSAT shall have been released from any continuing
liability under the Existing Performance Bonds;
(v) Buyer shall have delivered to Seller and COMSAT a
certificate to the effect that each of the conditions specified above in
Section 6(a) and this Section 6(c) are satisfied in all material respects;
and
(vi) all actions to be taken by Buyer and Able in connection
with consummation of the transactions contemplated hereby and all
certificates, instruments, and other documents required to effect the
transactions contemplated hereby shall have been taken or executed and
delivered in form and substance reasonably satisfactory to Seller and
COMSAT.
Seller or COMSAT may waive any condition specified in this Section
6(c) by executing a writing so stating at or prior to the Closing.
7. Covenants.7. Covenants.
(a)...General.a) General. In case at any time after the Closing any
further action is necessary or desirable to carry out the purposes of this
Agreement, each of the Parties will take such further action (including the
execution and delivery of such further instruments and documents) as any other
Party reasonably may request, all of the sole cost and expense of the requesting
Party (unless the requesting Party is entitled to indemnification therefor under
Section 9 below). The Parties agree to cooperate with one another prior to the
Closing to equitably determine which Party should be entitled to possession of
the various documents, books, records (including Tax records), agreements, and
financial data of any sort relating to Seller after the Closing.
(b)...Access to Information.b) Access to Information. From and after
the Closing Date, Buyer and Able shall afford to Seller and COMSAT and their
authorized accountants, counsel and other designated representatives reasonable
access (including using commercially reasonable efforts to give access to
persons or firms possessing information) and duplicating rights during normal
business hours to all records, books, contracts, instruments, computer data and
other data and information relating to pre-Closing operations (collectively,
"Information") within Buyer's possession insofar as such access is reasonably
required by Seller or COMSAT for the conduct of its business, subject to
appropriate restrictions against disclosure of Confidential Information on terms
similar to those set forth in the Confidentiality Agreement. Similarly, COMSAT
and Seller shall afford to Buyer and Able and their authorized accountants,
counsel and other designated representatives reasonable access (including using
commercially reasonable efforts to give access to persons or firms possessing
information) and duplicating rights during normal business hours to Information
within COMSAT's or Seller's possession, insofar as such access is reasonably
required by Buyer or Able for the conduct of its business, subject to
appropriate restrictions against disclosure of confidential information.
Information may be requested under this Section for the legitimate business
purposes of either party, including without limitation, audit, accounting,
claims (including claims for indemnification hereunder), litigation and tax
purposes, as well as for purposes of fulfilling disclosure and reporting
obligations and for performing this Agreement and the transactions contemplated
hereby. Except as otherwise required by law or otherwise agreed in writing, such
Party may destroy or otherwise dispose of any of the Information at any time
after the earlier of the tenth anniversary of this Agreement or the time at
which such information is at least ten years old, provided that, prior to such
destruction or disposal, (a) it shall provide no less than 30 days prior written
notice to the other, specifying in reasonable detail the Information proposed to
be destroyed or disposed of and (b) if a recipient of such notice shall request
in writing prior to the scheduled date for such destruction or disposal that any
of the Information proposed to be destroyed or disposed of be delivered to such
requesting Party, the Party proposing the destruction or disposal shall promptly
arrange for the delivery of such of the Information as was requested at the
expense of the Party requesting such Information.
(c)...Litigation Support.c) Litigation Support. In the event and for
so long as any Party actively is contesting or defending against any action,
suit, proceeding, hearing, investigation, charge, complaint, claim, or demand in
connection with (i) any transaction contemplated under this Agreement or (ii)
any fact, situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving Seller or COMSAT, each of the other Parties will
cooperate with the contesting or defending Party and his or its counsel in the
contest or defense, make available his or its personnel, and provide such
testimony and access to his or its books and records as shall be necessary in
connection with the contest or defense, all at the sole cost and expense of the
contesting or defending Party (unless the contesting or defending Party is
entitled to indemnification therefor under Section 9 below).
(d)...Transition.d) Transition. Seller and COMSAT will not take any
action that is designed or intended to have the effect of discouraging any
lessor, licensor, customer, supplier, or other business associate of Seller from
maintaining the same business relationships with Buyer after the Closing as it
maintained with Seller prior to the Closing. Seller and COMSAT will use
commercially reasonable efforts to refer all customer inquiries relating to the
businesses of Seller to Buyer from and after the Closing.
(e)...Covenant Not to Compete.e) Covenant Not to Compete. For a
period of 36 months from and after the Closing Date, COMSAT will not engage
directly or indirectly in any business that Seller conducts as of the Closing
Date in any geographic area in which Seller conducts that business as of the
Closing Date; provided, however, that no owner of less than 10% of the
outstanding stock of any publicly traded corporation shall be deemed to engage
in any of such corporation's businesses solely by reason of its ownership
interest; and provided, further, that the provisions of the preceding sentence
shall not be binding on COMSAT if COMSAT is acquired by a Person other than an
Affiliate. If the final judgment of a court of competent jurisdiction declares
that any term or provision of this Section 7(e) is invalid or unenforceable, the
Parties agree that the court making the determination of invalidity or
unenforceability shall have the power to reduce the scope, duration, or area of
the term or provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or provision that is
valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified after the expiration of the time within which the
judgment may be appealed. The Parties agree that in the event of a violation of
this Section 7(e), in addition to any other remedy then available to Buyer,
Buyer shall be entitled to appropriate injunctive or other equitable relief.
8. Termination.8. Termination.
(a)...Termination of Agreement.a) Termination of Agreement.
Certain of the Parties may terminate this Agreement as provided below:
(i) Buyer and Seller may terminate this Agreement by
mutual written consent at any time prior to the Closing;
(ii) Buyer may terminate this Agreement by giving written
notice to Seller at any time prior to the Closing (A) in the event Seller
or COMSAT has breached any representation, warranty, or covenant contained
in this Agreement in any material respect, Buyer has notified Seller of
the breach, and the breach has continued without cure for a period of ten
days after the notice of breach or (B) if the Closing shall not have
occurred on or before the date specified in Section 6(a)(iii) hereof, by
reason of the failure of any condition precedent under Sections 6(a) or
6(b) hereof (unless the failure results primarily from Buyer or Able
itself breaching any representation, warranty, or covenant contained in
this Agreement); and
(iii) Seller may terminate this Agreement by giving written
notice to Buyer at any time prior to the Closing (A) in the event Buyer or
Able has breached any representation, warranty, or covenant contained in
this Agreement in any material respect, Seller has notified Buyer of the
breach, and the breach has continued without cure for a period of ten days
after the notice of breach or (B) if the Closing shall not have occurred
on or before the date specified in Section 6(a)(iii) hereof, by reason of
the failure of any condition precedent under Sections 6(a) or 6(c) hereof
(unless the failure results primarily from Seller or COMSAT itself
breaching any representation, warranty, or covenant contained in this
Agreement).
(b)...Effect of Termination.b) Effect of Termination. If any Party
terminates this Agreement pursuant to Section 8(a), all rights and obligations
of the Parties hereunder shall terminate without any Liability of any Party to
any other Party (except for any Liability of any Party then in breach).
9. Indemnification and Related Matters.9. Indemnification and
Related Matters.
(a)...Survival of Representations and Warranties.a) Survival of
Representations and Warranties. All of the representations and warranties of
Buyer, Able, Seller, and COMSAT contained in this Agreement shall survive the
Closing and continue in full force and effect for one year thereafter.
(b)...Indemnification Provisions for Benefit of Buyer and Able.b)
Indemnification Provisions for Benefit of Buyer and Able. If Seller or COMSAT
breaches any of its representations and warranties contained herein, provided
that Buyer or Able makes a written claim for indemnification against Seller or
COMSAT within the survival period set forth in Section 9(a) hereof, then,
subject to Section 9(d) hereof, Seller and COMSAT, jointly and severally, shall
indemnify Buyer and Able from and against the entirety of any Adverse
Consequences Buyer or Able (as the case may be) may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the breach
(including any Adverse Consequences Buyer or Able may suffer after the end of
such survival period). Buyer and Able may not make any claim for indemnification
hereunder relating to a breach of the representation and warranty contained in
Section 3(m)(iii) hereof prior to 120 days after the Closing Date, and as a
condition to any such claim, Buyer and Able shall provide Seller and COMSAT with
the aggregate amount collected in respect of accounts receivable and rights to
create accounts receivable included in the Acquired Assets and with access to
the records of Buyer and Able with respect thereto as provided in Section 7(b).
(c)...Indemnification Provisions for Benefit of Seller and
COMSATIndemnification Provisions for Benefit of Seller and COMSAT. If Buyer or
Able breaches any of its representations and warranties contained herein,
provided that Seller or COMSAT makes a written claim for indemnification against
Buyer or Able within the survival period set forth in Section 9(a) hereof, then,
subject to Section 9(d) hereof, Buyer and Able, jointly and severally, shall
indemnify Seller and COMSAT from and against the entirety of any Adverse
Consequences Seller or COMSAT (as the case may be) may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the breach
(including any Adverse Consequences Seller or COMSAT may suffer after the end of
such survival period). d) Determination of Damages and Related Matters.ted
Matters.
(i) No amounts shall be paid to any party for indemnification
pursuant to Section 9(b) or 9(c) except to the extent that the aggregate
amount from all claims thereunder exceeds $100,000. No amounts shall be
paid to Able or Buyer, on the one hand, or COMSAT or Seller, on the other
hand, pursuant to Section 9 of this Agreement in excess of $1,000,000
collectively in the aggregate (the "Indemnity Cap"). The Indemnity Cap
shall not apply to claims for indemnification made by Buyer or Able based
upon a breach of any of the representations and warranties contained in
Section 3(p); provided, however, that any Indemnity Payment paid in
respect of any such breach shall be considered in determining whether the
Indemnity Cap has been exceeded for other purposes. Notwithstanding
anything to the contrary contained herein, no claim for indemnity
resulting from a breach of any of the representations and warranties
contained in Section 3(p) shall be made unless Buyer or Able is
specifically required to take action or make payment pursuant to an
applicable Environmental, Health and Safety Requirement by a governmental
authority having appropriate jurisdiction. This Section 9(d)(i) shall not
apply to claims for indemnification made by Buyer or Able based upon a
breach of the representation and warranty contained in Section 3(m)(iii)
hereof.
(ii) Each Party hereby waives any claim for indirect, special
or consequential damages resulting from, arising out of, relating to, in
the nature of, or caused by a breach of this Agreement by any other Party.
(iii) The amount which any party (an "Indemnifying Party") is
or may be required to pay to any other party (an "Indemnitee") pursuant to
Section 9 shall be reduced (including, without limitation, retroactively)
by any Insurance Proceeds or other amounts actually recovered by or on
behalf of such Indemnitee, in reduction of the related Adverse
Consequence. If an Indemnitee shall have received payment (an "Indemnity
Payment") required by this Agreement from an Indemnifying Party in respect
of any Adverse Consequence and shall subsequently actually receive
Insurance Proceeds or other amounts in respect of such Adverse
Consequence, then such Indemnitee shall pay to such Indemnifying Party a
sum equal to the amount of such Insurance Proceeds or other amounts
actually received (up to but not in excess of the amount of the related
Indemnity Payment). An insurer who would otherwise be obligated to pay any
claim shall not be relieved of the responsibility with respect thereto,
or, solely by virtue of the indemnification provisions hereof, have any
subrogation rights with respect thereto, it being expressly understood and
agreed that no insurer or any other third party shall be entitled to a
"windfall" (i.e., a benefit they would not be entitled to receive in the
absence of the indemnification provisions of this Agreement) by virtue of
the indemnification provisions hereof.
(e)...Matters Involving Third Parties.e) Matters Involving Third
Parties.
(i) If an Indemnitee shall receive notice or otherwise learn
of the assertion by a person (including, without limitation, any
governmental entity) who is not a party to this Agreement (or an Affiliate
of either party) of a claim or of the commencement by any such person of
any Action with respect to which an Indemnifying Party may be obligated to
provide indemnification pursuant to this Section (a "Third Party Claim"),
such Indemnitee shall give such Indemnifying Party written notice thereof
promptly after becoming aware of such Third Party Claim; provided that the
failure of any Indemnitee to give notice as provided in this Section 9(e)
shall not relieve the Indemnifying Party of its obligations hereunder,
except to the extent that such Indemnifying Party is actually prejudiced
by such failure to give notice. Such notice shall describe the Third Party
Claim in reasonable detail.
(ii) An Indemnifying Party may elect to defend or to seek to
settle or compromise, at such Indemnifying Party's own expense and with
such Indemnifying Party's own counsel, any Third Party Claim, as provided
hereafter, so long as the Indemnifying Party notifies the Indemnitee in
writing within 30 days after the Indemnitee has given notice of the Third
Party Claim that the Indemnifying Party will indemnify the Indemnitee from
and against the entirety of any Adverse Consequences the Indemnitee may
suffer resulting from, arising out of, relating to, in the nature of, or
caused by the Third Party Claim (subject to the limitations provided in
Section 9(d)). After notice from an Indemnifying Party to an Indemnitee of
its election to assume the defense of a Third Party Claim, such
Indemnifying Party shall not be liable to such Indemnitee under this
Section 9 for any legal or other expenses (except expenses approved in
advance by the Indemnifying Party) subsequently incurred by such
Indemnitee in connection with the defense thereof; provided that if the
defendants with respect to any such Third Party Claim include both the
Indemnifying Party and one or more Indemnitees and in any Indemnitee's
reasonable judgment a conflict of interest between one or more of such
Indemnitees and such Indemnifying Party exists in respect of such claim,
such Indemnitees shall have the right to employ separate counsel to
represent such Indemnitees and in that event the reasonable fees and
expenses of such separate counsel (but not more than one separate counsel
reasonably satisfactory to the Indemnifying Party) shall be paid by such
Indemnifying Party. If an Indemnifying Party elects not to assume
responsibility for defending a Third Party Claim, or fails to notify an
Indemnitee of its election as provided in this Section 9(e), such
Indemnitee may defend or, subject to the remainder of this Section 9(e),
seek to compromise or settle such Third Party Claim without prejudice to
such Indemnitee's rights, if any, to continue to seek indemnification
hereunder. Notwithstanding the foregoing, neither an Indemnifying Party
nor an Indemnitee may settle or compromise any claim over the objection of
the other; provided, however, that consent to settlement or compromise
shall not be unreasonably withheld or delayed. Neither an Indemnifying
Party nor an Indemnitee shall consent to entry of any judgment or enter
into any settlement of any Third Party Claim which does not include as an
unconditional term thereof the giving by a claimant or plaintiff to such
Indemnitee, in the case of a consent or settlement by an Indemnifying
Party, or to the Indemnifying Party, in the case of a consent or
settlement by an Indemnitee, of a written release from all liability in
respect to such Third Party Claim.
(iii) If an Indemnifying Party chooses to defend or to seek to
compromise or settle any Third Party Claim, the related Indemnitee shall
make reasonably available to such Indemnifying Party any personnel or any
books, records or other documents within its control or which it otherwise
has the ability to make available that are necessary or appropriate for
such defense, settlement or compromise of such Third Party Claims, subject
to the establishment of reasonably appropriate confidentiality
arrangements and arrangements to preserve any applicable privilege
(including, the attorney-client privilege) and shall cooperate in such
defense, compromise or settlement. If an Indemnifying Party chooses to
defend or to seek to compromise or settle any Third Party Claim, the
related Indemnitee shall be entitled to attend and participate in any such
proceeding, discussion or negotiation at its own expense.
(iv) Notwithstanding anything else in this Section 9 to the
contrary, if an Indemnifying Party notifies the related Indemnitee in
writing of such Indemnifying Party's desire to settle or compromise a
Third Party Claim on the basis set forth in such notice (provided that
such settlement or compromise includes as an unconditional term thereof
the giving by the claimant or plaintiff of a written release of the
Indemnitee from all liability in respect thereof and does not include any
non-monetary remedy) and provides the Indemnitee a copy of a written
proposal of the applicable claimant to settle on such terms, and the
Indemnitee shall notify the Indemnifying Party in writing that such
Indemnitee declines to accept any such settlement or compromise, such
Indemnitee may continue to contest such Third Party Claim, free of any
participation by such Indemnifying Party, at such Indemnitee's sole
expense. In such event, the obligation of such Indemnifying Party to such
Indemnitee with respect to such Third Party Claim shall be equal to (i)
the costs and expenses of such Indemnitee prior to the date such
Indemnifying Party notifies such Indemnitee of the offer to settle or
compromise (to the extent such costs and expenses are otherwise
indemnifiable hereunder) plus (ii) the lesser of (A) the amount of any
offer of settlement or compromise which such Indemnitee declined to accept
and (B) the actual out-of-pocket amount such Indemnitee is obligated to
pay subsequent to such date as a result of such Indemnitee's continuing to
defend such Third Party Claim (including attorneys fees and expenses).
(v) Any claim on account of an Adverse Consequence which does
not result from a Third Party Claim shall be asserted by written notice
given by the Indemnitee to the related Indemnifying Party. Such
Indemnifying Party shall have a period of 30 days after the receipt of
such notice within which to respond thereto. If such Indemnifying Party
does not respond within such 30-day period, such Indemnifying Party shall
be deemed to have refused to accept responsibility to make payment.
(vi) In addition to any adjustments required pursuant to
Section 9(d), if the amount of any Adverse Consequence shall, at any time
subsequent to the payment required by an Indemnifying Party on account
thereof, be reduced by recovery, settlement or otherwise, the amount of
such reduction, less any expenses incurred in connection therewith, shall
promptly be repaid by the Indemnitee to the Indemnifying Party.
(vii) In the event of payment by an Indemnifying Party to any
Indemnitee in connection with any Third Party Claim, such Indemnifying
Party shall be subrogated to and shall stand in the place and the place of
such Indemnitee as to any events or circumstances in respect of which such
Indemnitee may have any right or claim relating to such Third Party Claim
against any claimant or plaintiff asserting such Third Party Claim or
against any other person. Such Indemnitee shall cooperate with such
Indemnifying Party in a reasonable manner, and at the cost and expense of
such Indemnifying Party, in prosecuting any subrogated right or claim.
f) Other Indemnification Provisions. The foregoing indemnification provisions
are in addition to, and not in derogation of, any statutory, equitable, or
common law remedy (including without limitation any such remedy arising
under Environmental, Health, and Safety Requirements) any Party may have
with respect to the transactions contemplated by this Agreement.
10. Miscellaneous.10. Miscellaneous.
(a)...Press Releases and Public Announcements.a) Press Releases and
Public Announcements. No Party shall issue any press release or make any public
announcement relating to the subject matter of this Agreement without the prior
written approval of the other Party; provided, however, that any Party may make
any public disclosure it believes in good faith is required by applicable law or
any listing or trading agreement concerning its publicly-traded securities (in
which case the disclosing Party will use commercially reasonable efforts to
advise the other Party, and afford the other party an opportunity to comment,
prior to making the disclosure).
(b)...No Third-Party Beneficiaries.b) No Third-Party
Beneficiaries. This Agreement shall not confer any rights or remedies upon
any Person other than the Parties and their respective successors and
permitted assigns.
(c)...Entire Agreement.c) Entire Agreement. This Agreement
(including the documents referred to herein) constitutes the entire agreement
between the Parties and supersedes any prior understandings, agreements, or
representations by or between the Parties, written or oral, to the extent they
related in any way to the subject matter hereof.
(d)...Succession and Assignment.d) Succession and Assignment. This
Agreement shall be binding upon and inure to the benefit of the Parties named
herein and their respective successors and permitted assigns. No Party may
assign either this Agreement or any of its rights, interests, or obligations
hereunder without the prior written approval of the other Party; provided,
however, that Buyer may (i) assign any or all of its rights and interests
hereunder to one or more of its Affiliates and (ii) designate one or more of its
Affiliates to perform its obligations hereunder (in any or all of which cases
Buyer nonetheless shall remain responsible for the performance of all of its
obligations hereunder).
(e)...Counterparts.e) Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original but all
of which together will constitute one and the same instrument.
(f)...Headings.f) Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
(g)...Notices.g) Notices. All notices, requests, demands, claims,
and other communications hereunder will be in writing. Any notice, request,
demand, claim, or other communication hereunder shall be deemed duly given if
(and then two business days after) it is sent by registered or certified mail,
return receipt requested, postage prepaid, and addressed to the intended
recipient as set forth below:
to Seller:
COMSAT RSI Jefa Wireless Systems
c/o COMSAT Corporation
(at the address and with the copies set forth below with respect
to COMSAT)
to COMSAT:
COMSAT Corporation
6560 Rock Spring Drive
Bethesda, Maryland 20815
Attention: Allen E. Flower
Vice President and Chief Financial Officer
Telecopy No.: (301) 214-5131
With copy (which shall not constitute notice) to:
Warren Y. Zeger
Vice President, General Counsel and Secretary
COMSAT Corporation
6560 Rock Spring Drive
Bethesda, Maryland 20815
Telecopy No.: (301) 214-5128
and copy (which shall not constitute notice) to:
Charles P. Miller
Patton, Boggs, L.L.P.
2626 Cole Avenue, Suite 300
Dallas, Texas 75204
Telecopy No.: (214) 871-2688
If to Buyer or Able:
Transportation Safety Contractors, Inc.
c/o Able Telcom Holding Corp.
1601 Forum Place, Suite 1110
West Palm Beach, FL 33401
Attention: President
Telecopy No.: (561) 688-0455
and copy (which shall not constitute notice) to:
David L. Perry, Jr.
Holland & Knight LLP
625 North Flagler Drive, Suite 700
West Palm Beach, FL 3340l
Telecopy No.: (561) 650-8399
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Party notice in the manner herein set forth.
(h)...Governing Law.h) Governing Law. This Agreement shall be
governed by and construed in accordance with the domestic laws of the State of
Texas without giving effect to any choice or conflict of law provision or rule
(whether of the State of Texas or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Texas.
(i)...Amendments and Waivers.i) Amendments and Waivers. No amendment
of any provision of this Agreement shall be valid unless the same shall be in
writing and signed by Buyer and Seller. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(j)...Severability.j) Severability. Any term or provision of this
Agreement that is invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction.
(k)...Expenses.k) Expenses. Each of Buyer, Seller, and COMSAT will
bear its own costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby.
(l)...Construction.l) Construction. Any reference to any federal,
state, local, or foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context requires
otherwise. The word "including" shall mean including without limitation.
(m)...Incorporation of Exhibits and Schedules.m) Incorporation of
Exhibits and Schedules. The Exhibits and Schedules identified in this Agreement
are incorporated herein by reference and made a part hereof.
(n)...Submission to Jurisdiction.n) Submission to Jurisdiction. Each
of the Parties submits to the jurisdiction of any state or federal court sitting
in Dallas County, Texas. in any action or proceeding arising out of or relating
to this Agreement and agrees that all claims in respect of the action or
proceeding may be heard and determined in any such court. Each Party also agrees
not to bring any action or proceeding arising out of or relating to this
Agreement in any other court. Each of the Parties waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought and
waives any bond, surety, or other security that might be required of any other
Party with respect thereto. Any Party may make service on the other Party by
sending or delivering a copy of the process to the Party to be served at the
address and in the manner provided for the giving of notices in Section 0 above.
Each Party agrees that a final judgment in any action or proceeding so brought
shall be conclusive and may be enforced by suit on the judgment or in any other
manner provided by law or in equity.
*****
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
TRANSPORTATION SAFETY CONTRACTORS,
INC.
By:/s/ Gerry W. Hall
--------------------------------
Gerry W. Hall
Executive Vice President
GEORGIA ELECTRIC COMPANY, INC.
By:/s/ Gerry W. Hall
--------------------------------
Gerry W. Hall
President
ABLE TELCOM HOLDING CORP.
By:/s/ Gerry W. Hall
--------------------------------
Gerry W. Hall
President and Chief Executive
Officer
COMSAT RSI Acquisition, Inc.,
d.b.a. COMSAT RSI JEFA Wireless
Systems
By:/s/ Marjorie A. Holman
--------------------------------
Marjorie A. Holman
Treasurer
COMSAT CORPORATION
By:/s/ Allen E. Flower
--------------------------------
Allen E. Flower
Vice President and Chief Financial
Officer
