SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
(AMENDMENT NO. 4 TO SCHEDULE 13D)
Under the Securities Exchange Act of 1934
T/SF COMMUNICATIONS CORPORATION
(Name of Issuer)
Shares of Common Stock, par value $0.10 per share
(Title of Class of Securities)
872857107
(CUSIP NUMBER)
FIR TREE PARTNERS
1211 Avenue of the Americas
29th Floor
New York, New York 10036
Tel. No.: (212) 398-3500
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
- with copies to -
Eliot D. Raffkind, P.C.
Akin, Gump, Strauss, Hauer & Feld, LLP
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201-4618
(214) 969-2800
July 1, 1997
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4) check the following box. |_|
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934, as amended ("Act"), or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act.
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CUSIP No. 872857107 Page ___ of ___Pages
13D
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Fir Tree, Inc. d/b/a Fir Tree Partners
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 487,506
OWNED BY ------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 0
------------------------------------------------------
9 SOLE DISPOSITIVE POWER
487,506
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
487,506
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.77%
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14 TYPE OF REPORTING PERSON*
CO, IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT
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AMENDMENT NO. 4 TO SCHEDULE 13D
This Amendment No. 4 to Schedule 13D is being filed on behalf of Fir
Tree, Inc., a New York corporation, doing business as Fir Tree Partners, and Mr.
Jeffrey Tannenbaum, the sole shareholder, executive officer, director, and
principal, as an amendment to the initial statement on Schedule 13D, relating to
shares of Common Stock of T/SF Communications Corporation, as filed with the
Securities and Exchange Commission (the "Commission") on September 25, 1995,
amended by Amendment No. 1 to Schedule 13D filed with the Commission on May 7,
1996, amended by Amendment No. 2 to Schedule 13D filed with the Commission on
March 24, 1997, and further amended by Amendment No. 3 to Schedule 13D filed
with the Commission on June 5, 1997 (as amended, the "Amended Schedule 13D").
The Amended Schedule 13D is hereby further amended and supplemented as follows:
ITEM 4. PURPOSE OF THE TRANSACTION
Item 4 of the Amended Schedule 13D is hereby amended and restated in its
entirety to read as follows:
Fir Tree Partners and Mr. Tannenbaum acquired shares of Common Stock
for portfolio investment purposes. On July 1, 1997, the Issuer, Jeffrey
Tannenbaum, Fir Tree Partners and an affiliate of Fir Tree Partners entered into
that certain Preferred Stock Purchase Agreement (the "Purchase Agreement"), a
copy of which is attached hereto as Exhibit A and incorporated by reference
herein, pursuant to which the Issuer indicated its intent to make a cash tender
offer (the "Tender Offer") for up to 2,050,000 shares of Common Stock from its
stockholders at an expected price of $37.00 net per share for a total cost of
approximately $75,850,000. As part of the financing of the Tender Offer, the
Issuer will issue 150,000 shares of 9% convertible Preferred Stock, par value
$10.00 per share (the "Preferred Stock"), to entities for which Mr. Tannenbaum,
Fir Tree Partners or an affiliate of Fir Tree Partners acts as general partner
or investment advisor (the "Fir Tree Entities") for a cash payment in the amount
of $5,500,000. Subsequent to the completion of the Tender Offer, Fir Tree
Partners expects the Issuer to take the steps necessary to cease its public
filings with the Securities and Exchange Commission and de-list its shares from
the American Stock Exchange, at which time certain members of the Issuer's
management and related persons and affiliates of Fir Tree Partners are expected
to be the only stockholders of the Issuer. The sale of the Preferred Stock to
the Fir Tree Entities is conditioned on, among other things, and subject to
certain exceptions set forth in the Purchase Agreement, the receipt of tenders
for no less than 1,700,000 shares of Common Stock (other than shares held by
certain members of the Issuer's management) and the non-occurrence of a tender
or exchange offer for all or a portion of the shares of Common Stock or the
acquisition of more than 15% of the shares of Common Stock by any person that is
not a party to the Stockholders Agreement (as defined in Item 6 herein). In
addition, the parties to the Purchase Agreement have agreed that they shall each
use commercially reasonably efforts to obtain, on or before July 31, 1997, a
mutually acceptable term sheet from a mutually acceptable financial institution
for the financing of the Tender Offer. If such term sheet is not obtained by
such date, the Issuer may prepare a list of parameters for a high yield debt
offering to finance the Tender Offer. If such list of parameters has not been
prepared on or before August 8, 1997, Fir
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Tree Partners and its affiliates may, among other things, terminate the Purchase
Agreement. The Issuer may also terminate the Purchase Agreement if, among other
things, the list of parameters for such high yield debt offering has not been
accepted by Fir Tree Partners or the Issuer decides not to pursue such high
yield debt offering.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Item 5 of the Amended Schedule 13D is hereby amended by amending and
restating Items 5(a) and (c) as follows:
(a) As of July 1, 1997, Fir Tree Partners and Mr. Tannenbaum are
beneficial owners of 487,506 shares of Common Stock or 14.77% of the shares
outstanding. The 487,506 shares described above are beneficially owned by Fir
Tree Partners and Mr. Tannenbaum for the account of the Fir Tree Value Fund, Fir
Tree Institutional or Fir Tree LDC, as the case may be.
The number of shares beneficially owned by Fir Tree Partners and Mr.
Tannenbaum and the percentage of outstanding shares represented thereby, have
been computed in accordance with Rule 13d-3 under the Act. The percentage of
beneficial ownership of Fir Tree Partners and Mr. Tannenbaum on July 1, 1997 is
based on 3,301,652 outstanding shares of Common Stock as reported in the
Issuer's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997.
(c) The transactions in the Issuer's securities by Fir Tree Partners
during the period of May 29, 1997 to July 1, 1997 are listed as Annex A attached
hereto and made a part hereof.
ITEM 6. CONTRACTS, ARRANGEMENT, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Item 6 of the Amended Schedule 13D is hereby amended and restated in its
entirety to read as follows:
On July 1, 1997, the Issuer and Jeffrey Tannenbaum, Fir Tree
Partners and an affiliate of Fir Tree Partners entered into the Purchase
Agreement, a copy of which is attached hereto as Exhibit A and incorporated by
reference herein, pursuant to which the Issuer indicated its intent to
consummate the Tender Offer. Upon the closing of the transactions described in
the Purchase Agreement, the Issuer has agreed to issue 150,000 shares of
Preferred Stock to the Fir Tree Entities for a cash payment in the amount of
$5,500,000. Pursuant to the Purchase Agreement, the Fir Tree Entities have
agreed, among other things, not to acquire any additional securities of the
Issuer, not to solicit proxies from any of the current stockholders of the
Issuer and not to seek to control the management or the board of directors of
the Issuer until the consummation of the Tender Offer. The sale of the Preferred
Stock to the Fir Tree Entities is conditioned on, among other things, and
subject to certain exceptions set forth in the Purchase Agreement, the receipt
of tenders for no less than 1,700,000 shares of Common Stock (other than shares
held by certain members of the Issuer's management) and the non-occurrence of a
tender or exchange offer for all or a portion of the shares of Common Stock or
the acquisition of more
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than 15% of the shares of Common Stock by any person that is not a party to the
Stockholders Agreement. In addition, the parties to the Purchase Agreement have
agreed that they shall each use commercially reasonably efforts to obtain, on or
before July 31, 1997, a mutually acceptable term sheet from a mutually
acceptable financial institution for the financing of the Tender Offer. If such
term sheet is not obtained by such date, the Issuer may prepare a list of
parameters for a high yield debt offering to finance the Tender Offer. If such
list of parameters has not been prepared on or before August 8, 1997, Fir Tree
Partners and its affiliates may, among other things, terminate the Purchase
Agreement. The Issuer may also terminate the Purchase Agreement if, among other
things, the list of parameters for such high yield debt offering has not been
accepted by Fir Tree Partners or the Issuer decides not to pursue such high
yield debt offering.
In connection with the execution of the Purchase Agreement and the
consummation of the Tender Offer, the Issuer, certain members of its board of
directors, certain of its officers and related persons and certain affiliates of
Fir Tree Partners (collectively, the "Stockholders") entered into that certain
Stockholders Agreement dated July 1, 1997 (the "Stockholders Agreement"), a copy
of which is attached hereto as Exhibit B and incorporated by reference herein,
pursuant to which the Stockholders have agreed, among other things, that
subsequent to the consummation of the transactions set forth in the Purchase
Agreement, the Stockholders would not transfer any shares of Common Stock or
Preferred Stock (together, "Capital Stock") owned by them except as permitted in
the Stockholders Agreement and each Stockholder would have certain rights of
first refusal, tag along rights, drag along rights, and preemptive rights with
respect to any such transferred shares of Capital Stock. In addition, pursuant
to the Stockholders Agreement, Howard G. Barnett, Jr. (currently Chairman,
President and Chief Executive Officer of the Issuer), was given the right to
designate three members of the board of directors of the Issuer while the
affiliates of Fir Tree Partners were given the right to designate the remaining
two members, and the Stockholders agreed that the unanimous consent of the
members of the Issuer's board of directors would be required to undertake
certain actions, all as set forth in the attached Stockholders Agreement. The
effectiveness of the Stockholders Agreement is conditioned on, among other
things, the consummation of the Tender Offer.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 of the Amended Schedule 13D is hereby amended and restated in its
entirety to read as follows:
Exhibit A - Preferred Stock Purchase Agreement, dated July 1, 1997,
among the Issuer, Jeffrey Tannenbaum, Fir Tree Partners and an
affiliate of Fir Tree Partners.
Exhibit B - Stockholders Agreement, dated as of July 1, 1997, among
the Issuer, certain of its stockholders, Jeffrey Tannenbaum,
Fir Tree Partners and certain affiliates of Fir Tree Partners.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: July 7, 1997
Fir Tree, Inc. d/b/a/ Fir Tree Partners
By: /S/ JEFFREY TANNENBAUM
JEFFREY TANNENBAUM, President
/S/ JEFFREY TANNENBAUM
Jeffrey Tannenbaum
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ANNEX A
Transaction Buy/Sell Quantity Price per
Date (shares) Share ($)
-------------------------------------------------------
6/5/97 Buy 300 26.8750
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EXHIBIT A - SCHEDULE 13D
PREFERRED STOCK PURCHASE AGREEMENT
T/SF COMMUNICATIONS CORPORATION
2407 East Skelly Drive
Tulsa, Oklahoma 74105
July 1, 1997
TO: Tensing, L.L.C.
29th Floor
1211 Avenue of the Americas
New York, New York 10036
The undersigned, T/SF Communications Corporation, a Delaware corporation
(the "Company"), hereby agrees with you as follows:
1. AUTHORIZATION AND SALE OF THE PREFERRED STOCK
1.1 AUTHORIZATION. The Company represents and warrants to you and
covenants with you that the following will be duly and validly authorized on or
before the Closing Date (as defined below):
(a) the issuance and delivery, pursuant to the terms and conditions
hereof, of 150,000 shares of the Company's 9% Convertible Preferred Stock,
par value $10.00 per share (the "Preferred Stock"); and
(b) the issuance and delivery of those shares of the Company's
Common Stock, par value $0.10 per share ("Common Stock"), into which the
Preferred Stock is convertible.
1.2 SALE. Subject to the terms and conditions hereof, the Company will
issue and sell to you and you will purchase from the Company, the Preferred
Stock at an aggregate purchase price of $5,550,000 (the "Purchase Price").
2. CLOSING DATE; DELIVERY
2.1 CLOSING DATE. The closing of the purchase and sale of the Preferred
Stock (the "Closing") shall be held at the place and on the date of the
acceptance of the tenders pursuant to the Tender Offer (as defined in Section
5.1(d) below) or at such other time and place as the Company and you may
mutually agree in writing (the "Closing Date"); provided, however, that, if the
Closing
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shall not have occurred on or before October 31, 1997, this Agreement shall
terminate on such date, unless such date is extended by mutual written agreement
of you and the Company.
2.2 DELIVERY. At the Closing, subject to the terms of this Agreement, the
Company will deliver to you or your representative certificates representing the
Preferred Stock against payment by you at the Closing of the Purchase Price by
wire transfer or certified check in accordance with the instructions of the
Company. The Company shall pay all transfer, issuance and other similar taxes,
if any, imposed by any governmental authority in respect of the issuance and
sale of the Preferred Stock contemplated by this Agreement.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company hereby represents and warrants to you and covenants with you
as follows:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly organized
and validly existing under, and by virtue of, the laws of the State of Delaware
and is in good standing under such laws. The Company has the requisite corporate
power to own and operate its properties and assets and to carry on its business
as presently conducted. The Company is qualified, licensed or domesticated as a
foreign corporation in all jurisdictions where the nature of its business
conducted or the character of its properties owned or leased makes such
qualification, licensing or domestication necessary at this time except in those
jurisdictions where the failure to be so qualified or licensed and in good
standing does not and will not have a materially adverse effect on the Company,
the conduct of its business or the ownership or operation of its properties.
3.2 CORPORATE POWER. The Company has now, and will have at the Closing
Date, all requisite legal and corporate power to enter into this Agreement, to
issue the Preferred Stock hereunder, to issue the shares of Common Stock
issuable upon conversion of the Preferred Stock, and to carry out and perform
its obligations under this Agreement.
3.3 AUTHORIZATION.
(a) All corporate action on the part of the Company necessary for
the sale and issuance of the Preferred Stock pursuant hereto and the
performance of the Company's obligations hereunder has been taken or will
be taken on or prior to the Closing Date. This Agreement has been duly
executed and delivered on behalf of the Company and constitutes a legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws of general
application affecting enforcement of creditors' rights.
(b) The Preferred Stock, when issued in accordance with the
provisions of this Agreement, will be validly issued, fully paid and
nonassessable, and will be free of any liens or encumbrances; provided,
however, that the Preferred Stock will be subject to restrictions on
transfer under state and/or federal securities laws (and as may be
required by future changes in such laws) and will be subject to the terms
of the Stockholders Agreement
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entered into by the Company, you and certain other stockholders of the
Company contemporaneously herewith (the "Stockholders Agreement").
(c) No stockholder of the Company or any other person has any right
of first refusal or any preemptive right in connection with the issuance
of the Preferred Stock hereunder or of any other capital stock of the
Company, except as set forth in the Stockholders Agreement.
3.4 NO CONFLICTING AGREEMENTS. Neither the execution and delivery of this
Agreement by the Company nor the offering, issuance and sale of the Preferred
Stock hereunder, nor the fulfillment of or compliance with any of the terms or
provisions hereof will:
(a) conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a default under, or result in a violation of,
the Certificate of Incorporation or Bylaws of the Company or any
agreement, license or other instrument or obligation to which the Company
is a party or by which the Company or its assets are bound;
(b) result in the violation of any provision of any applicable law,
rule, regulation or ordinance or any order, decree, writ or injunction of
any court or administrative agency or governmental authority by which the
Company is bound; or
(c) result in the creation or imposition of any lien, charge,
restriction, security interest or encumbrance of any nature whatsoever
upon any of the assets or properties of the Company.
The Company is not subject to any agreement, mortgage, lease, license or other
instrument, or any judgment, order, decree, or authorization of any court or
governmental agency or authority, which could prevent or materially impair the
Company from carrying out this Agreement.
3.5 CONSENTS. Except for the filing of the Certificate of Designation (as
defined in Section 5.1(b) below) and any filings which may be required under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), no consent from, or other approval of, or the making of any declaration
or filing with, any governmental entity or any other person is necessary in
connection with the execution, delivery or performance of this Agreement by the
Company. The Company will cause the Certificate of Designation to be filed with
the Secretary of State of the State of Delaware prior to the Closing.
3.6 ACTIONS PENDING. There is no action, proceeding or investigation
pending or (to the knowledge of the Company) threatened (or any basis in fact
therefor known to the Company) which questions the validity or legality of or
seeks damages in connection with this Agreement or any action taken or to be
taken pursuant to this Agreement.
3.7 DISCLOSURE. Neither the Company's annual report on Form 10-K for its
fiscal year ended December 31, 1996, as amended, nor the Company's quarterly
report on Form 10-Q for the quarter ended March 31, 1997, contained, as of its
respective date of filing, an untrue statement of a
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material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading. No document filed by the Company with the
Securities and Exchange Commission between the date hereof and the Closing Date
will contain, as of its date of filing, an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND RESTRICTIONS ON TRANSFER
IMPOSED BY THE SECURITIES LAWS
4.1 REPRESENTATIONS AND WARRANTIES BY PURCHASER. You represent and
warrant to the Company as follows:
(a) You are experienced in evaluating and investing in companies
such as the Company and are capable of bearing the economic risks of an
investment in the Company. You and your "affiliates" (as defined in
Section 6.2 below) are experienced professional investment advisors and
have been stockholders of the Company since at least September 1995. As of
the date hereof, you and your affiliates own, in the aggregate, 487,506
shares of the Company's Common Stock.
(b) You have been furnished by the Company with all information
requested concerning the current and proposed operations, financial
affairs and business of the Company. You have had the opportunity to
discuss the Company's business, management and financial affairs with its
officers and have had the opportunity to review the Company's plan of
operation to your reasonable satisfaction. You understand that such
discussions and any other written information issued by the Company, were
intended to describe certain aspects of the Company's business and
prospects which it believes to be material but were not necessarily a
thorough or exhaustive description.
(c) You acknowledge that you have made your own independent
examination, investigation, analysis and evaluation of the Company,
including your own estimate of the value of the Company's business.
(d) You acknowledge that you have undertaken such due diligence
(including a review of the assets, liabilities, books, records and
contracts of the Company) as you deem adequate, including that described
above.
(e) The Preferred Stock is being acquired by you for your own
account, for investment purposes only and not with a view to, or for
resale in connection with, any distribution or public offering thereof
within the meaning of the Securities Act of 1933, as amended (the
"Securities Act").
(f) You understand that the Preferred Stock has not been registered
under the Securities Act by reason of its issuance in a transaction exempt
from the registration and prospectus delivery requirements of the
Securities Act and that the Preferred Stock must be
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held by you indefinitely and you must therefore bear the economic risk of
such investment indefinitely, unless a subsequent disposition thereof is
registered under the Securities Act or is exempt from registration. You
understand that the Company is under no obligation to register the
Preferred Stock (or shares of Common Stock issuable upon conversion of the
Preferred Stock) under the Securities Act on your behalf or to assist you
in complying with any exemption from registration.
(g) You are an accredited investor as that term is defined in Rule
501(a) of Regulation D promulgated by the Securities and Exchange
Commission under the Securities Act.
(h) At the time of the Closing, the purchase and holding of the
Preferred Stock (and the Common Stock issuable upon conversion of the
Preferred Stock) will be legally permitted by all laws and regulations and
agreements to which you are subject except to the extent filings may be
required under the HSR Act.
(i) You have the full right, power and authority to enter into and
perform this Agreement, and this Agreement has been duly executed and
delivered on your behalf and constitutes a legal, valid and binding
obligation upon you except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application
affecting enforcement of creditors' rights.
4.2 LEGENDS. Each certificate representing the Preferred Stock (or the
Common Stock issuable upon conversion of the Preferred Stock) shall be endorsed
with a legend substantially in the following form:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY OTHER SECURITIES LAWS. THESE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR
TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OF THEM
UNDER THE SECURITIES ACT OF 1933 AND ANY OTHER APPLICABLE SECURITIES LAWS,
OR RECEIPT BY THE CORPORATION OF AN OPINION OF COUNSEL OR OTHER EVIDENCE
ACCEPTABLE TO THE CORPORATION THAT SUCH SALE OR TRANSFER IS EXEMPT FROM
REGISTRATION UNDER SUCH ACTS.
The Company need not register a transfer of such legended Preferred Stock (or
Common Stock), and may also instruct its transfer agent, if any, not to register
the transfer of such Preferred Stock (or Common Stock), unless the conditions
specified in the foregoing legend are satisfied.
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5. CONDITIONS TO CLOSING
5.1 CONDITIONS TO YOUR OBLIGATIONS. Your obligation to purchase the
Preferred Stock at the Closing is subject to the fulfillment to your reasonable
satisfaction on or prior to the Closing Date of the following conditions (any of
which may, at your discretion, be waived):
(a) The representations and warranties made by the Company in
Section 3 hereof shall be true and correct when made, and shall be true
and correct on the Closing Date with the same force and effect as if they
had been made on and as of said date; and the Company shall have performed
all obligations and conditions herein required to be performed or observed
by it on or prior to the Closing Date.
(b) The Company shall have caused to be filed with the Secretary of
State of the State of Delaware a Certificate of Designation providing for
and designating the amount, relative rights, preferences, qualifications,
limitations and restrictions of the Preferred Stock, substantially in the
form of Exhibit A hereto (the "Certificate of Designation"). You shall
have received a copy of the Certificate of Designation, certified by the
Secretary of State of the State of Delaware, and a certificate of an
officer of the Company to the effect that the Certificate of Designation
has not been amended since the date of such certified copy and is in full
force and effect on the Closing Date.
(c) There shall be no action, suit, investigation or proceeding
pending or threatened against or affecting you or the Company, any of your
or the Company's respective properties or rights, or any of your or the
Company's respective affiliates, associates, officers or directors, before
any court, arbitrator or administrative or governmental body which (i)
seeks to restrain, enjoin or prevent the consummation of or otherwise
affect any of the transactions contemplated by this Agreement or the
Stockholders Agreement, or (ii) questions the validity or legality of any
such transactions or seeks to recover damages or to obtain other relief in
connection with any such transactions, and there shall be no valid basis
for any such action, proceeding or investigation.
(d) The applicable conditions to the proposed tender offer by the
Company to purchase for cash up to 2,050,000 shares of the Company's
Common Stock (the "Tender Offer") shall have been either fulfilled or
waived and the tenders received pursuant to the Tender Offer shall have
been accepted for no less than 1,700,000 shares of the Company's Common
Stock (which shares shall not include any shares held by Howard G.
Barnett, Jr. or J. Gary Mourton on the date hereof other than shares held
for their benefit in individual retirement accounts and the Company's
Savings and Retirement Plan).
(e) There shall not have occurred or become known any material
adverse change with respect to the condition (financial or otherwise) or
operations of the Company since March 31, 1997, other than the
transactions contemplated in this Agreement.
5.2 CONDITIONS TO OBLIGATION OF THE COMPANY. The Company's obligation
to sell and issue the Preferred Stock to you at the Closing is subject to the
fulfillment to the Company's
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reasonable satisfaction on or prior to the Closing Date of the following
conditions (any of which may, at the Company's discretion, be waived):
(a) The representations and warranties made by you in Section 4
hereof shall be true and correct when made, and shall be true and correct
on the Closing Date with the same force and effect as if they had been
made on and as of said date.
(b) The applicable conditions to the Tender Offer shall have been
either fulfilled or waived and the tenders received pursuant to the Tender
Offer shall have been accepted for no less than 1,700,000 shares of the
Company's Common Stock.
(c) There shall be no action, suit, investigation or proceeding
pending or threatened against or affecting the Company, any of its
properties or rights, or any of its affiliates, associates, officers or
directors, before any court, arbitrator or administrative or governmental
body which (i) seeks to restrain, enjoin or prevent the consummation of or
otherwise affect any of the transactions contemplated by this Agreement or
the Stockholders Agreement, or (ii) questions the validity or legality of
any such transactions or seeks to recover damages or to obtain other
relief in connection with any such transactions, and there shall be no
valid basis for any such action, proceeding or investigation.
(d) No Change in Control Event (as defined in Section 7.2 below)
shall have occurred; provided, however, that this condition shall be
deemed to have been satisfied if the condition set forth in Section 5.2(b)
shall have been fulfilled.
(e) The Company shall not have become aware of any facts that are or
may be materially adverse with respect to the value of the Company which,
due to the fiduciary obligations of the Company's Board of Directors or
otherwise, the Company's Board of Directors determines that the
transactions contemplated by this Agreement are not in the best interests
of the Company's stockholders; provided, however, that this condition
shall be deemed to have been satisfied if the condition set forth in
Section 5.2(b) shall have been fulfilled.
6. CONFIDENTIALITY; STANDSTILL
6.1 CONFIDENTIALITY. From and after the date of this Agreement and until
the earlier of the Closing Date or the termination of this Agreement, you will,
and will cause each of your affiliates (as defined in Section 6.2 below),
employees, agents and representatives, to keep confidential and not publicly
disclose to any third party (other than your affiliates, employees, agents and
representatives), any information relating to the business, properties and
affairs of the Company, including without limitation the existence of the
proposed Tender Offer unless (a) you receive the prior written consent of the
Company, (b) such information becomes publicly known through other means, or (c)
you are required by law to disclose such information. You and the Company agree
to fully cooperate in all reasonable respects with respect to any Schedule 13D
filings under the Exchange Act and any amendment thereto, which may be necessary
as a result of
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the transactions contemplated by this Agreement or the Stockholders Agreement
and to coordinate any such filings.
6.2 STANDSTILL. Until the earlier of the consummation of the Tender Offer
or the termination of this Agreement, you and your "affiliates" (as defined in
Rule 12b-2 of the Exchange Act) will not, without the prior written consent of
the Company, other than pursuant to this Agreement:
(a) purchase or otherwise acquire, offer to acquire or agree to
acquire, whether by transactions over any securities exchange or any
national or other quotation systems, by any other over-the-counter
transaction, by private transactions with third parties, by tender offer
or by any other means, directly or indirectly, any securities of the
Company, or any direct or indirect rights or options to acquire any such
securities or any securities convertible into such securities
(collectively, "Securities");
(b) make, or in any way participate in, directly or indirectly, any
"solicitation" of "proxies" to vote (as such terms are defined in the
Exchange Act), solicit any consent or communicate with or seek to advise
or influence any person or entity with respect to the voting of, any
Securities or become a "participant" in any "election contest" (as such
terms are defined or used in Rule 14a-11 under the Exchange Act);
(c) form, join or in any way participate pursuant to any agreement,
understanding or other arrangement, whether written or oral, in a "group"
(within the meaning of Section 13(d)(3) of the Exchange Act) with respect
to any Securities;
(d) deposit any Securities into a voting trust or subject any
Securities to any arrangement or agreement with respect to the voting
thereof;
(e) initiate, propose or otherwise solicit stockholders for the
approval of one or more proposals with respect to the Company as described
in Rule 14a-8 under the Exchange Act;
(f) otherwise act, alone or in concert with others, to seek to
control or influence in any manner the management, the Board of Directors
or the policies of the Company;
(g) solicit, seek to effect, negotiate with or provide any
information to any third party with respect to, or make any statement or
proposal, whether written or oral, to the Board of Directors of the
Company or any director or officer of the Company or otherwise make any
public announcement or proposal whatsoever with respect to any form of
merger, business combination or other similar transaction with or
involving the Company; or
(h) instigate or encourage any other person to do any of the
foregoing.
6.3 ADDITIONAL PARTIES. Jeffrey Tannenbaum ("Tannenbaum") and Fir Tree,
Inc. d/b/a Fir Tree Partners have joined in the execution of this Agreement to
evidence their agreement to be
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bound by the terms and provisions of this Article 6 and Article 7 below. As used
in this Article 6 and Article 7 below, the terms "you" and "your" shall be
deemed to include such parties.
7. FINANCING; TERMINATION
7.1 FINANCING. Until July 31, 1997, the Company and you shall each use
commercially reasonable efforts to obtain a mutually acceptable term sheet from
a mutually acceptable financial institution (or group of financial institutions)
with respect to such financing as the Company, in its sole discretion, deems is
necessary in connection with the Tender Offer. If such a term sheet is obtained
on or before such date, the Company agrees to pursue the financing contemplated
by such term sheet and the following provisions of this Section 7.1 shall no
longer be applicable. If such a term sheet is not so obtained and if the Company
has not abandoned the Tender Offer, the Company may, but shall be under no
obligation to, prepare a list of parameters for a high yield debt offering to be
conducted by the Company with the assistance of Prudential Securities
Incorporated, the proceeds of which would be used to finance the Tender Offer.
If the Company prepares such a list of parameters on or before August 8, 1997,
and if you accept the same, the Company agrees to pursue the financing
contemplated by such list of parameters. You may, by notice to the Company,
terminate this Agreement in the event (a) an acceptable list of parameters for
such high yield debt offering has not been presented to you on or before such
date (whether or not the Company elected to prepare such a list of parameters)
or (b) such offering cannot be consummated on terms which are substantially
similar to (or more favorable from the Company's perspective than) those set
forth in the list of parameters that you accepted. The Company may, by notice to
you, terminate this Agreement in the event (x) you have not accepted a list of
parameters for such high yield debt offering by such date, (y) such offering
cannot be consummated on terms which are substantially similar to (or more
favorable from the Company's perspective than) those set forth in the list of
parameters that you accepted, or (z) the Company decides not to pursue such high
yield debt financing.
7.2 CHANGE IN CONTROL. Either the Company or you upon notice to the other,
may terminate this Agreement in the event a Change in Control Event occurs. As
used in this Agreement, the term "Change in Control Event" shall mean any tender
or exchange offer for all or any portion of the Company's outstanding Common
Stock shall have been proposed, announced or made by another person, a merger,
business combination or other similar transaction with or involving the Company
shall have been proposed, announced or made by another person, or the Company
shall have learned that any person, entity or "group," as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), excluding the parties to the Stockholders Agreement, has acquired or
proposed to acquire more than 15% of the Common Stock of the Company, other than
acquisitions of shares for bona fide arbitrage positions. The Company will
promptly provide you with notice of any proposal received by an executive
officer of the Company which may result in a Change in Control Event, and, in
any event, the Company will provide you with notice of any written proposal with
respect to a Change in Control Event within 24 hours of the Company's receipt of
the same.
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7.3 ABANDONMENT OF TENDER OFFER. This Agreement shall terminate if the
Company has publicly announced the abandonment of the Tender Offer (or abandoned
the Tender Offer in the event that no public announcement of the Tender Offer
has been made).
7.4 AMENDMENT TO FORM 13D. Upon any termination of this Agreement, if you
or any of your affiliates believes, after consultation with competent counsel,
that any Schedule 13D filed under the Exchange Act must be amended, you agree to
cause such amendment to be provided to the Company no later than 24 hours prior
to its filing with the Securities and Exchange Commission. This Section 7.4
shall survive for 30 days after any termination of this Agreement.
7.5 EFFECT OF TERMINATION. If this Agreement is terminated pursuant to and
in accordance with any of the provisions of this Agreement, this Agreement shall
become void and have no effect, without any liability on the part of any party
hereto (or its stockholders, directors or officers), provided that nothing
herein shall relieve any party from liability for its breach of this Agreement.
7.6 EMPLOYMENT AGREEMENTS. Until July 31, 1997, the Company and you shall
each attempt to agree upon the terms and conditions of employment agreements to
be entered into between the Company and certain members of its key management.
The Company may, by notice to you, terminate this Agreement in the event you and
the Company have not agreed upon such terms and conditions by such date; and you
may, by notice to the Company, terminate this Agreement in the event the Board
of Directors of the Company, despite your objections, approves by such date the
terms and conditions of such employment agreements which are unacceptable to
you.
8. MISCELLANEOUS
8.1 WAIVERS AND AMENDMENTS. This Agreement or any provision hereof may be
changed, waived, discharged or terminated only by a statement in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought.
8.2 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of Delaware without regard to principles of conflicts of
laws.
8.3 CHOICE OF FORUM; CONSENT TO SERVICE OF PROCESS. Any suit, action or
proceeding arising out of or relating to this Agreement or any agreement or
obligation delivered in connection with this Agreement or any judgment entered
by any court in respect thereof may be brought in the courts of the State of
Oklahoma, County of Tulsa, in the United States District Court for the Northern
District of Oklahoma, in the courts of the State of New York, County of New
York, or in the United States District Court for the Southern District of New
York, and each party hereto hereby submits to the jurisdiction of such courts
for the purpose of any such suit, action or proceeding relating to this
Agreement or any related agreement or obligation.
Each party hereto hereby irrevocably waives any objection that it may now
or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this
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Agreement or any agreement or obligation delivered in connection with this
Agreement, brought in the courts of the State of Oklahoma, County of Tulsa, in
the United States District Court for the Northern District of Oklahoma, in the
courts of the State of New York, County of New York, or in the United States
District Court for the Southern District of New York, and hereby further
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum.
8.4 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto;
provided, however, neither you nor the Company may assign any rights or
obligations hereunder without the consent of the other, except that you may
assign the right to purchase all or any portion of the Preferred Stock to one or
more affiliates of Fir Tree, Inc. who agree to be bound by the Stockholders
Agreement and by the representations, warranties and covenants in this
Agreement.
8.5 ENTIRE AGREEMENT. This Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement
between the parties hereto with regard to the subject hereof and thereof and
supersedes all prior arrangements and understandings with respect thereto.
8.6 REPRESENTATION DISCLAIMER. The Company shall not be deemed to have
made to you any representation or warranty other than as expressly made by the
Company in this Agreement. Without limiting the generality of the foregoing, and
notwithstanding any otherwise express representations and warranties made by the
Company in Section 3 hereof, the Company makes no representation or warranty to
you with respect to:
(a) any projections, estimates or budgets heretofore delivered to or
made available to you with respect to future revenues, expenses or
expenditures or future results of operations of the Company and/or its
subsidiaries; or
(b) except as expressly covered by a representation and warranty
contained in Section 3 hereof, any other information or documents
(financial or otherwise) made available to you or your counsel,
accountants or advisers with respect to the Company.
8.7 NOTICES. All notices and other communications required or permitted to
be given hereunder shall be in writing and shall be deemed to have been
delivered on the date delivered by hand, telegram, facsimile or by similar
means, on the next day following the day when sent by recognized courier or
overnight delivery service (fees prepaid), or on the third day following the day
when deposited in the U.S. mail, registered or certified (postage prepaid),
addressed: (a) if to you, at your address set forth above, or at such other
address as you shall have furnished to the Company in writing in accordance with
this Section 8.7, or (b) if to the Company, at its address set forth above, or
at such other address as the Company shall have furnished to you in writing in
accordance with this Section 8.7.
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8.8 SEVERABILITY. In case any provision of this Agreement not material to
the benefits intended to be conferred hereby shall be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
8.9 FINDER'S FEES. Each of the Company and each of you (a) represents and
warrants to the other that no finder or broker has been retained by it or you in
connection with the transactions contemplated by this Agreement and (b) hereby
agrees to indemnify and to hold the other, and its respective officers,
directors and controlling persons, harmless from and against any liability for
any commission or compensation in the nature of a finder's fee to any broker or
other person or firm (and the costs and expenses of defending against such
liability or asserted liability) for which it, or any of its employees or
representatives, are responsible.
8.10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained herein shall survive the execution and delivery of this
Agreement and the issuance of the Preferred Stock, regardless of any
investigation made by any party hereto.
8.11 PAYMENT OF EXPENSES. Except as set forth in Section 2.2 above and
this Section 8.11, each party hereto shall pay its own expenses incident to
preparing for, entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby. The Company hereby agrees
to reimburse Tannenbaum and his affiliates for reasonable out-of-pocket costs
incurred in connection with the transactions contemplated hereby, including
without limitation travel costs and reasonable attorneys' and accountants' fees
and expenses, within 10 days after the Company's receipt of a statement with
respect to such costs and appropriate supporting documentation. This Section
8.11 shall survive any termination of this Agreement.
8.12 OTHER DOCUMENTS. The parties to this Agreement shall in good faith
execute such other and further instruments, assignments or documents as may be
necessary or advisable to carry out the transactions contemplated by this
Agreement.
8.13 TITLES AND SUBTITLES. The titles of the Sections of this Agreement
are for convenience of reference only and are not to be considered in construing
this Agreement. References herein to Exhibits to this Agreement shall be deemed
to incorporate such Exhibits by reference.
8.14 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
8.15 HSR ACT. Each of the parties hereto shall use all reasonable efforts
to take, or cause to be taken, any appropriate action under the HSR Act with
respect to the transactions contemplated hereby and the conversion of the
Preferred Stock, including without limitation promptly making their respective
filings, if any, which are required under the HSR Act.
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If you are in agreement with the foregoing, please sign the form of
acceptance in the enclosed counterpart of this letter and return the same to the
Company, whereupon this letter shall become a binding agreement between you and
the Company.
T/SF COMMUNICATIONS CORPORATION
By: /S/ HOWARD G. BARNETT, JR.
Howard G. Barnett, Jr.
Chairman, President and Chief Executive Officer
The foregoing Agreement is hereby accepted as of the date first above
written.
TENSING, L.L.C.
By: /S/ JEFFREY TANNENBAUM
Name: JEFFREY TANNENBAUM
Title: MANAGER
FIR TREE, INC. d/b/a Fir Tree Partners
By: /S/ JEFFREY TANNENBAUM
Jeffrey Tannenbaum
President
/S/ JEFFREY TANNENBAUM
Jeffrey Tannenbaum
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EXHIBIT A
T/SF COMMUNICATIONS CORPORATION
Certificate of Designation of
Preferences and Rights of Preferred Stock
By Resolution of the Board of Directors
Providing for an Issue of 150,000 Shares
of 9% Convertible Preferred Stock
The undersigned, Howard G. Barnett, Jr., the Chairman, President and Chief
Executive Officer of T/SF Communications Corporation, a corporation organized
and existing under the General Corporation Law of the State of Delaware (the
"Corporation"), in accordance with Section 151 thereof, does hereby certify
that:
FIRST, pursuant to authority conferred upon the Board of Directors of the
Corporation by the Certificate of Incorporation of the Corporation, the
following preambles and resolution were duly adopted by the Board of Directors
of the Corporation at a meeting thereof duly and validly held on June 30, 1997:
WHEREAS, the Certificate of Incorporation of the Corporation (the
"Certificate") was filed with the Secretary of State of the State of
Delaware on March 17, 1989, and has not been amended; and
WHEREAS, the Certificate provides for a class of shares of stock
designated "Preferred Stock" and authorizes the Board of Directors of the
Corporation (the "Board of Directors") to establish one or more series of
Preferred Stock and to fix and determine the relative rights and
preferences of the shares of Preferred Stock or any series thereof so
established; and
WHEREAS, no series of Preferred Stock has heretofore been designated;
and
WHEREAS, it is the desire of the Board of Directors, pursuant to its
authority as aforesaid, to establish a series of Preferred Stock and to
fix and determine the relative rights and preferences thereof;
NOW, THEREFORE, BE IT RESOLVED, that a series of Preferred Stock of
the Corporation be, and it hereby is, designated "9% Convertible Preferred
Stock," that the number constituting such series is one hundred fifty
thousand (150,000) shares, and that the rights, preferences, limitations,
and restrictions of the 9% Convertible Preferred Stock, shall be as
follows:
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1. DIVIDENDS.
(a) Each share of 9% Convertible Preferred Stock shall entitle
the holder of record thereof to receive cumulative cash dividends at
the annual rate of $3.33 per share. Dividends shall accrue daily and
accrued dividends for any period of less than one year shall be
computed on the basis of the number of days elapsed out of a 365-day
or 366-day year, as the case may be. Dividends shall be payable each
year on the last day of June (the "Dividend Payment Date") in the
amount accrued to such Dividend Payment Date; provided, however,
that dividends shall be required to be paid only (i) to the extent
the Corporation may lawfully do so and (ii) if the Board of
Directors has determined, in its sole discretion, that dividends
should be paid by the Corporation; and provided further, if the
Corporation may not lawfully pay all the dividends it is required to
pay under this Section 1(a) on any Dividend Payment Date, it shall
pay on such date all the dividends it may lawfully pay ratably among
the holders of 9% Convertible Preferred Stock and, at the earliest
time or times thereafter when it may lawfully pay any or all of the
balance of such dividends, it shall do so. If the Corporation does
not pay dividends on any Dividend Payment Date because the Board of
Directors has not approved such payment, it shall pay such dividends
at a later time when it may lawfully do so and following approval of
such payment by the Board of Directors. Dividends on each share of
9% Convertible Preferred Stock shall commence to accrue and shall be
cumulative from expiration of the Conversion Period (as defined in
Section 4 below), whether or not they are earned, declared, or
lawfully payable. If any dividend which is required to be paid on
any Dividend Payment Date is not paid for any reason, such unpaid
dividend shall not bear any interest.
(b) Once the dividends provided for in Section 1(a) above have
been paid, each share of Common Stock and 9% Convertible Preferred
Stock shall entitle the holder of record thereof to receive
dividends at the rate to be determined by the Board of Directors,
out of funds legally available therefor, when and as declared by the
Board of Directors with respect to such classes of stock; provided,
however, that no dividend or other distribution shall be declared or
paid on shares of Common Stock unless an equivalent dividend or
distribution on the outstanding shares of 9% Convertible Preferred
Stock shall have been paid or declared and a sum sufficient for the
payment thereof set apart. For purposes of the declaration or
payment of dividends or other distributions, a dividend or
distribution on shares of 9% Convertible Preferred Stock shall be
deemed "equivalent" to a dividend or distribution on shares of
Common Stock if the dividend or distribution declared or paid on
each outstanding share of 9% Convertible Preferred Stock entitles
the holder thereof to the same money or other property to which the
holder would have been entitled if
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the holder held the number of shares of Common Stock into which such
share of 9% Convertible Preferred Stock is then convertible or, if
the Conversion Period is not then in effect, would have been
convertible if the Conversion Period was then in effect.
2. LIQUIDATION. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, each holder of record of
shares of 9% Convertible Preferred Stock shall be entitled, before any
distribution is made on shares of Common Stock, to be paid Thirty-Seven
Dollars ($37.00) per share of 9% Convertible Preferred Stock held by such
holder, plus an amount equal to all accrued and unpaid dividends on each
such share through the date fixed for distribution. This Section 2 shall
not be deemed to require the distribution of assets to the holders of 9%
Convertible Preferred Stock in the event of a merger, consolidation, sale,
transfer or lease of all or substantially all of the Corporation's assets
if such transaction does not in fact result in the dissolution,
liquidation or winding up of the Corporation.
3. VOTING. Until the expiration of the Conversion Period, the 9%
convertible Preferred Stock shall vote with the Common Stock on an
as-converted basis. Thereafter, except as set forth in this Section 3 or
as otherwise required by law, a share of 9% Convertible Preferred Stock
shall not entitle the holder thereof to vote on any matter brought before
the stockholders of the Corporation for a vote. The holders of the 9%
Convertible Preferred Stock shall be entitled to vote as a class upon any
proposed amendment to the Certificate or this Certificate of Designation
with respect to the shares of 9% Convertible Preferred Stock, if such
amendment would alter or change the powers, preferences or special rights
of the shares of 9% Convertible Preferred Stock so as to affect them
adversely.
4. CONVERSION. During the 30-day period commencing on the 90th day
after the issuance of a share of 9% Convertible Preferred Stock (the
"Conversion Period"), such share of 9% Convertible Preferred Stock shall
be convertible at the option of the holder of record thereof into a number
of shares of Common Stock equal to the Conversion Ratio (as hereinafter
defined); provided, that no fractional share of Common Stock shall be
issued, but in lieu thereof one share of Common Stock shall be issued. The
Conversion Period shall be extended until the fifth day after the
expiration or termination of any waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, which is
applicable to such conversion, so long as any filing which is required to
be made by the holder under such Act is made on or before the commencement
of the Conversion Period. Conversion of such share of 9% Convertible
Preferred Stock shall be effected by surrender of such holder's
certificate representing such share of 9% Convertible Preferred Stock
accompanied by a written notice from such holder addressed to the
Corporation requesting the conversion. Upon conversion, holders of
converted shares of 9% Convertible Preferred Stock will be issued
certificates representing the shares of Common Stock to which they are
entitled.
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The "Conversion Ratio" at the effective date of the original Certificate
of Designation with respect to the shares of 9% Convertible Preferred
Stock shall equal one (1.0). Thereafter, upon any stock split, stock
dividend, subdivision or combination of shares of Common Stock (an
"Adjustment Event"), the Conversion Ratio shall be adjusted such that
immediately upon the occurrence of such Adjustment Event the holder of a
share of 9% Convertible Preferred Stock shall be entitled to convert
(assuming, if the Conversion Period is not then in effect, that the
Conversion Period was then in effect) such share of 9% Convertible
Preferred Stock into the number of shares of Common Stock which such
holder would have been entitled to receive if such holder had converted
such share of 9% Convertible Preferred Stock into Common Stock immediately
prior to such Adjustment Event. Any adjustment of the Conversion Ratio
shall be effective as of the record date for the Adjustment Event giving
rise to the adjustment.
5. REDEMPTION. At any time after the first anniversary date of the
issuance of a share of 9% Convertible Preferred Stock, the Corporation
may, in its sole discretion, redeem such share of 9% Convertible Preferred
Stock by paying the holder of record thereof Thirty-Seven Dollars ($37.00)
for such share of 9% Convertible Preferred Stock, plus an amount equal to
all accrued and unpaid dividends on such share through the date of such
redemption.
SECOND, that this Certificate of Designation of Preferences and Rights of
9% Convertible Preferred Stock shall become effective upon its being filed with
the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, T/SF Communications Corporation has caused this
Certificate of Designation of Preferences and Rights of 9% Convertible Preferred
Stock to be signed by Howard G. Barnett, Jr., as Chairman, President and Chief
Executive Officer, as of the ______ day of ___________________, 1997.
T/SF COMMUNICATIONS
CORPORATION
By:
Howard G. Barnett, Jr.
Chairman, President and Chief
Executive Officer
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EXHIBIT B - SCHEDULE 13D
STOCKHOLDERS AGREEMENT
This Stockholders Agreement is made and entered into as of the 1st day of
July, 1997, by and among the Management Stockholders (as hereinafter defined),
the Fir Tree Stockholders (as hereinafter defined), and T/SF Communications
Corporation, a Delaware corporation (the "Company").
RECITALS:
A. The Management Stockholders and the Fir Tree Stockholders
(collectively, the "Stockholders") will, when this Agreement becomes effective
pursuant to Section 4.1 hereof, own a majority of the issued and outstanding
shares of capital stock of the Company.
B. The Stockholders desire to enter into this Agreement in order to
provide for the continuity of ownership and operation of the Company.
C. Pursuant to the Preferred Stock Purchase Agreement, of even date
herewith, between certain of the Fir Tree Stockholders and the Company (the
"Stock Purchase Agreement"), such Fir Tree Stockholders have agreed to purchase,
in the aggregate, 150,000 shares of the Company's 9% Convertible Preferred Stock
on the terms and subject to the conditions set forth in the Stock Purchase
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and agreements set forth herein, the Stockholders and the Company (the
"Parties") hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINITIONS. As used herein, the following terms shall have
the respective meanings indicated:
"Affiliate," with respect to any Person, means another Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with the first mentioned Person.
A Person shall be deemed to control another Person if such first Person
possesses directly or indirectly the power to direct, or cause the
direction of, the management and policies of the second Person, whether
through the ownership of voting securities, by contract or otherwise. The
term "Affiliate," with respect to any of the Fir Tree Stockholders,
includes any Person who has the right, power or authority to direct the
acquisition, voting or disposition of shares of Stock owned beneficially
or of record by such Fir Tree Stockholder, including without limitation
Fir Tree Partners and Jeffrey Tannenbaum.
Page __ of __ Pages
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"Agreement" means this Stockholders Agreement, as it may be amended
from time to time.
"Barnett" means Howard G. Barnett, Jr.
"Common Stock" means the common stock of the Company, par value
$0.10 per share.
"Craine" means Robert E. Craine, Jr.
"Fir Tree Stockholders" means the Persons listed on Exhibit A
attached hereto and by this reference made a part hereof.
"Management Stockholders" means the Persons listed on Exhibit B
attached hereto and by this reference made a part hereof.
"Mourton" means J. Gary Mourton.
"Person" means an individual, a corporation, an association, a
partnership, a limited liability company, an estate, a trust, or any other
entity or organization, governmental or otherwise.
"Preferred Stock" means the preferred stock of the Company, par
value $10.00 per share.
"Stock" means all shares of Common Stock and Preferred Stock,
together with any options thereon and any other shares of stock issued or
issuable with respect thereto (whether by way of a stock dividend, stock
split or in exchange for such shares or otherwise in connection with a
combination of shares, recapitalization, merger, consolidation or other
corporate reorganization).
"Transfer" means any direct or indirect offer, transfer, donation,
sale, assignment, pledge, hypothecation or other disposal or attempted
disposal of all or any portion of a security or of any rights; provided,
however, that (a) the conversion of shares of Preferred Stock into shares
of Common Stock in accordance with the terms of such Preferred Stock shall
in no event be deemed to be a "Transfer" subject to this Agreement, and
(b) the exercise of stock options and the transfer of options or shares to
the Company, and the withholding of shares by the Company, in connection
with such exercise shall in no event be deemed to be a "Transfer" subject
to this Agreement. "Transferring" and "Transferred" shall have correlative
meanings. "Transferee" means the recipient or intended recipient of a
Transfer.
1.2 NUMBER OR PERCENTAGE OF SHARES OF STOCK. Whenever any provision of
this Agreement calls for any calculation based on the number or percentage of
shares of Stock held by
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a Stockholder, (a) the number of shares of Stock deemed to be held by that
Stockholder shall be the total number of shares of Common Stock then owned by
that Stockholder, plus the total number of shares of Common Stock issuable upon
conversion of Preferred Stock and exercise of any options, warrants, or
subscription rights then owned by that Stockholder; and (b) the total number of
shares of Stock deemed to be outstanding (in determining percentages) shall be
the total number of shares of Common Stock then issued and outstanding, plus the
total number of shares of Common Stock issuable upon conversion of Preferred
Stock and exercise of any options, warrants, or subscription rights then
outstanding.
1.3 INTERPRETATION. Whenever the context requires, the gender of all words
used herein shall include the masculine, feminine and neuter, and the number of
all words shall include the singular and plural. As used in this Agreement, the
terms "hereof," "herein," "hereby," "hereunder" or "hereto" shall refer to this
Agreement as a whole and not to any particular Article or Section hereof.
ARTICLE II
RESTRICTIONS ON TRANSFER;
RIGHT OF FIRST REFUSAL;
CO-SALE PROVISIONS; AND PREEMPTIVE RIGHTS
2.1 RESTRICTIONS ON TRANSFER. Each Stockholder agrees that he or it will
not, without the prior written consent of all of the other Stockholders, make a
Transfer of all or any portion of the Stock now owned or hereafter acquired by
him or it, except in connection with, and strictly in compliance with the
conditions of, any of the following:
(a) Transfers effected pursuant to Sections 2.2, 2.3 and 2.4 hereof,
in each case made in accordance with the procedures set forth therein;
(b) a Transfer by a Management Stockholder to another Management
Stockholder or by a Fir Tree Stockholder to another Fir Tree Stockholder;
and
(c) (i) a Transfer by a Stockholder to an Affiliate of such
Stockholder, (ii) a Transfer by a Stockholder who is a natural Person to
his or her spouse or lineal descendants, natural or adopted, or to a trust
for the benefit of the transferor Stockholder or his or her spouse or
lineal descendants, natural or adopted, and (iii) a Transfer by a
Stockholder that is a trust to the beneficiaries of such trust or by a
Stockholder that is a partnership or a limited liability company to the
partners or members thereof; provided, that, as a condition to any such
Transfer, the Transferee agrees in writing to be bound by the provisions
of this Agreement on the same basis as the transferor Stockholder.
Anything in this Agreement to the contrary notwithstanding, (x) Transferees
under any of the provisions of this Article II shall take any Stock so
Transferred subject to all provisions of this Agreement, (y) a recipient of a
Transfer permitted under Section 2.1(c) above shall be classified for purposes
of this Agreement as a Management Stockholder in the event the owner of the
Stock
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so Transferred was classified as a Management Stockholder or as a Fir Tree
Stockholder in the event the owner of the Stock so Transferred was classified as
a Fir Tree Stockholder, and (z) each Transfer under any of the provisions of
this Article II shall be made in compliance with applicable federal and state
securities laws, rules and regulations, or exemptions from the registration
provisions thereof.
2.2 RIGHT OF FIRST REFUSAL. In the event that any of the Stockholders
receives a bona fide offer to purchase all or any portion of the Stock held by
such Stockholder, which offer may propose a direct purchase or a merger or other
business combination and may be subject to certain contingencies (a "Transaction
Offer"), from any Person (the "Offeror"), unless subject to one of the
exceptions specified in Section 2.1 above, such Stockholder (a "Transferring
Stockholder") may, subject to the provisions of Section 2.3 below, Transfer such
Stock only pursuant to and in accordance with the following provisions of this
Section 2.2:
(a) Such Transferring Stockholder shall cause the Transaction Offer
to be reduced to writing and shall notify the Company, with a copy to each
of the other Stockholders (the "Other Stockholders"), of his or its desire
to accept the Transaction Offer and otherwise comply with the provisions
of this Section 2.2 and, if applicable, Section 2.3 below (such notice,
the "Offer Notice"). In the Offer Notice, such Transferring Stockholder
shall also specify whether or not he or it desires to exercise his or its
rights under Section 2.4 below, if applicable. Any Offer Notice, once
given, shall be deemed to be an irrevocable offer to sell the Offered
Shares as provided in this Section 2.2.
(b) The following provisions establish the procedure by which the
Company and/or the Other Stockholders may elect to purchase the Stock
specified in the Offer Notice (the "Offered Shares"). Any such purchase
shall be at the same price and on the same terms as are offered by the
Offeror; provided, that, if the price set forth in an Offer Notice is
stated in consideration other than cash or cash equivalents, the Company,
acting through its Board of Directors, may determine the fair market value
of such consideration, reasonably and in good faith, and may exercise such
rights by payment of such fair market value in cash or cash equivalents.
(c) In the case of an Offer Notice given by a Management
Stockholder, the other Management Stockholders shall have the right, prior
to the right of the Company and/or the other Stockholders, to purchase (on
a PRO RATA basis determined on the basis of the number of shares of Stock
held by each or on such other basis upon which a majority in interest of
the Management Stockholders may agree) all or a portion of the Offered
Shares; provided, that, if the other Management Stockholders elect to
purchase less than all of the Offered Shares, the Company and/or the Other
Stockholders may agree to purchase the balance of the Offered Shares in
accordance with the following provisions.
If the other Management Stockholders elect to exercise their right to
purchase, they shall give written notice to that effect to the Company,
the Transferring Stockholder and the Other Stockholders within 15 days
after the date on which the Offer Notice was duly received by the
Management Stockholders.
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(d) In the case of an Offer Notice given by a Fir Tree Stockholder,
the other Fir Tree Stockholders shall have the right, prior to the right
of the Company and/or the
other Stockholders, to purchase (on a PRO RATA basis determined on the
basis of the number of shares of Stock held by each or on such other basis
upon which a majority in interest of the Fir Tree Stockholders may agree)
all or a portion of the Offered Shares; provided, that, if the other Fir
Tree Stockholders elect to purchase less than all of the Offered Shares,
the Company and/or the Other Stockholders may agree to purchase the
balance of the Offered Shares in accordance with the following provisions.
If the other Fir Tree Stockholders elect to exercise their right to
purchase, they shall give written notice to that effect to the Company,
the Transferring Stockholder and the Other Stockholders within 15 days
after the date on which the Offer Notice was duly received by the Fir Tree
Stockholders.
(e) In the case of an Offer Notice given by a Management Stockholder
or a Fir Tree Stockholder with respect to which the other Management
Stockholders or the other Fir Tree Stockholders have not elected under
Section 2.2(c) or 2.2(d) above to purchase all of the Offered Shares, or
in the case of an Offer Notice given by a Stockholder other than a
Management Stockholder or a Fir Tree Stockholder, the Company shall have
the right, prior to the right of the Other Stockholders, to purchase all
or a portion of the Offered Shares available for purchase; provided, that,
if the Company elects to purchase less than all of such Offered Shares,
the Other Stockholders (or the Company as provided in Section 2.2(h)
hereof) may agree to purchase the balance of the Offered Shares in
accordance with the following provisions. If the Company elects to
exercise its right to purchase, it shall give written notice to that
effect to the Transferring Stockholder and the Other Stockholders within
30 days after the date on which the Offer Notice was duly received by the
Company.
(f) Thereafter, to the extent the Company fails to exercise its
right to purchase with respect to all of the Offered Shares available for
purchase by the Company, each Other Stockholder shall have a right to
purchase his or its "Section 2.2 Proportionate Interest" of the available
Offered Shares, being that number of the available Offered Shares
determined by multiplying the number of available Offered Shares by a
fraction, the numerator of which is the number of shares of Stock held by
such Other Stockholder and the denominator of which is the total number of
shares of Stock held by all Other Stockholders. Such right to purchase
shall be exercisable by written notice (a "Response Notice") given to the
Company within 15 days after the date on which the Other Stockholders
shall have received the written notice from the Company referred to in
Section 2.2(e) hereof or, if no such notice shall have been given by the
Company, within 45 days after the date on which the Offer Notice shall
have been first received by the Other Stockholders.
(g) Each Other Stockholder that gives a Response Notice shall set
forth in such Response Notice whether or not such Other Stockholder
desires to (i) purchase his or its Section 2.2 Proportionate Interest or a
specified lesser number of the available
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Offered Shares, (ii) purchase, to the extent possible, a specified number
or all of the available Offered Shares in excess of his or its Section 2.2
Proportionate Interest, and (iii) if applicable, exercise his or its
rights under Section 2.3 below with respect to (A) his or its Section 2.3
Proportionate Interest (as hereinafter defined) or a specified lesser
number of shares of Stock and (B) a specified number or all shares of
Stock in excess of his or its Section 2.3 Proportionate Interest, in
either event to the extent possible. In the event one or more of the Other
Stockholders either do not give a Response Notice or elect in their
Response Notices to purchase less than their respective Section 2.2
Proportionate Interests AND more than one of the Other Stockholders elect
in their Response Notices to purchase in excess of their respective
Section 2.2 Proportionate Interests, each such Other Stockholder that
elects to purchase more than his or its Section 2.2 Proportionate Interest
shall be entitled to purchase the lesser of (x) the number of Offered
Shares in excess of his or its Section 2.2 Proportionate Interest that he
or it elected to purchase in his or its Response Notice and (y) his or its
allocable portion of the number of remaining Offered Shares available for
purchase, which allocable portion shall be determined in the same manner
as his or its Section 2.2 Proportionate Interest. The calculation set
forth in the preceding sentence shall be continually applied until the
greatest number of Offered Shares possible have been allocated to each
Other Stockholder that elects to purchase in excess of his or its Section
2.2 Proportionate Interest.
(h) Thereafter, if the Other Stockholders shall have failed to
exercise their right to purchase with respect to all of the remaining
Offered Shares, the Company may elect to purchase such remaining Offered
Shares; provided, that any such election shall be made within 10 days
after the date the Response Notices shall have been required to be given.
(i) If the Company and the Other Stockholders fail to exercise their
rights to purchase with respect to all of the Offered Shares within the
time limits set forth above,
(A) the Company and the Other Stockholders shall be deemed to have waived
all of their rights to purchase under this Section 2.2, and (B) the
Transferring Stockholder shall be free to sell all of the Offered Shares
at the price and on the terms set forth in the Offer Notice, for a period
of 30 days after the end of the last time period set forth in this Section
2.2, subject to the Transferring Stockholder's obligation to comply with
the provisions of Section 2.3 below, if applicable.
(j) If the Company and/or the Other Stockholders exercise their
rights to purchase with respect to all of the Offered Shares within the
time limits set forth above, such purchase(s) shall be consummated as soon
as is reasonably practicable.
2.3 TAG ALONG RIGHTS. Subject to the provisions of Section 2.4 below, in
the event that rights to purchase are not exercised pursuant to Section 2.2
above with respect to all of the Offered Shares, the Transferring Stockholder
may Transfer the Offered Shares only pursuant to and in accordance with the
following provisions of this Section 2.3; provided, that this Section 2.3 shall
not apply if the Offered Shares involve less than 25,000 shares of Stock in any
one transaction or series of related transactions:
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(a) Each of the Other Stockholders shall have the right to
participate in the Transaction Offer on the terms and conditions stated in
this Section 2.3, which right shall be exercisable in such Other
Stockholder's Response Notice.
(b) Each of the Other Stockholders shall have the right to sell a
portion of his or its Stock pursuant to the Transaction Offer which is
equal to or less than such Other Stockholder's "Section 2.3 Proportionate
Interest," being the product obtained by multiplying (i) the total number
of shares of Stock subject to the Transaction Offer by (ii) a fraction,
the numerator of which is the total number of shares of Stock held by such
Other Stockholder, and the denominator of which is the total number of
shares of Stock held by all Stockholders. To the extent one or more Other
Stockholders elect not to sell, or fail to exercise their right to sell,
the full amount of Stock which they are entitled to sell pursuant to this
Section 2.3, the right to sell shall pass to the Other Stockholders that
elected to sell and the Transferring Stockholder, on a PRO RATA basis
determined on the basis of the number of shares of Stock held by each. In
the event one or more of the Other Stockholders either do not give a
Response Notice or elect in their Response Notices to sell less than their
respective Section 2.3 Proportionate Interests AND more than one of the
Other Stockholders elect in their Response Notices to sell in excess of
their respective Section 2.3 Proportionate Interests, each such Other
Stockholder that elects to sell more than his or its Section 2.3
Proportionate Interest shall be entitled to sell the lesser of (x) the
number of shares of Stock in excess of his or its Section 2.3
Proportionate Interest that he or it elected to sell in his or its
Response Notice and (y) his or its allocable portion of the number of
shares of Stock that he or it may sell, which allocable portion shall be
determined in the same manner as his or its Section 2.3 Proportionate
Interest. The calculation set forth in the preceding sentence shall be
continually applied until the greatest number of shares of Stock possible
have been allocated to each Other Stockholder that elects to sell in
excess of his or its Section 2.3 Proportionate Interest.
(c) Within 10 days after the last date by which rights to purchase
under Section 2.2 above were to be exercised (if at all), the Company
shall notify each participating Other Stockholder and the Transferring
Stockholder of the number of shares of Stock held by such Other
Stockholder that will be included in the sale and the date on which the
Transaction Offer will be consummated, which date shall be no later than
the later of (i) 30 days after the date by which the Company was required
to notify the Other Stockholders under this Section 2.3(c) or (ii) five
days after the date on which all governmental approvals, if any, required
in connection with the Transfer have been obtained. Each of the parties to
the Transaction Offer shall use his or its best efforts to obtain any such
governmental approval as promptly as is practicable.
(d) Each participating Other Stockholder may effect his or its
participation in any Transaction Offer hereunder by delivery to the
Offeror, or to the Transferring Stockholder for delivery to the Offeror,
of one or more instruments or certificates, properly endorsed for
transfer, representing the Stock he or it elects to sell therein. At
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the time of consummation of the Transaction Offer, the Offeror shall remit
directly to each Stockholder that portion of the sale proceeds to which
each Stockholder is entitled by reason of his or its participation therein
(less any adjustments due to the conversion of any convertible securities
or the exercise of any derivative securities). In no event shall any
participating Other Stockholder be required to make any representations or
warranties or provide any indemnities in connection with his or its
participation in a Transaction Offer except those directly relating to the
ownership of the Stock to be Transferred by such Stockholder.
(e) Prior to its receipt of any Transfer under the provisions of
this Section 2.3 and as a condition precedent to any such Transfer, the
Offeror shall agree in writing to be bound by the provisions of this
Agreement on the same basis as the transferor Stockholder(s). In the event
that the Transaction Offer is not consummated within the period required
by Section 2.3(c) above or the Offeror fails timely to remit to each
Stockholder his or its portion of the sale proceeds, the Transaction Offer
shall be deemed to lapse, and any Transfers of Stock pursuant to such
Transaction Offer shall be deemed to be in violation of the provisions of
this Agreement unless the Transferring Stockholder once again complies
with the provisions of Section 2.2 hereof and this Section 2.3, if
applicable, with respect to such Transaction Offer.
2.4 DRAG ALONG RIGHT.
(a) One or more Transferring Stockholders holding more than one-half
of the Stock may, by notice given to the Other Stockholders, cause the
Other Stockholders to sell all of their Stock to the Offeror at the same
purchase price and on the same terms, except as set forth in this Section
2.4, if: (i) the Offeror offered to purchase all such Stock in the
applicable Transaction Offer, (ii) the rights to purchase procedure set
forth in Section 2.2 above was followed with respect to such Transaction
Offer and such rights were not exercised in full, and (iii) the Offer
Notice(s) stated that the Transferring Stockholder(s) intended to pursue
the rights of such Transferring Stockholder(s) under this Section 2.4. In
such event, the Other Stockholders agree to sell their Stock to the
Offeror at such purchase price and on such terms; provided, however, that
the obligation of the Fir Tree Stockholders to participate in such
transaction shall be conditioned upon (x) the Offeror not being an
Affiliate of any Management Stockholder, (y) the consideration for the
Stock being all cash and/or securities of an issuer with a market
capitalization of $1,000,000,000 or more that are either listed on a
national securities exchange or traded on the NASDAQ National Market
System where the securities received by the Stockholders (I) do not exceed
20% of the total trading volume of such securities over the 45-day period
prior to such receipt and (II) are freely tradeable (except to the extent
they are subject to Rule 145 under the Securities Act of 1933, as
amended), and (z) the Company's receipt of a fairness opinion with respect
to such transaction from an independent investment banking firm of
national standing that is mutually acceptable to the holders of a majority
in interest of both the Fir Tree Stockholders and the Management
Stockholders. Any such sale must take place within the later of (x) 30
days after the last date on which the Company or the Other Stockholders
could have exercised
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rights to purchase under Section 2.2 above or (y) five days after the date
on which all governmental approvals, if any, required in connection with
the Transfer have been obtained. Each of the parties to the Transaction
Offer shall use his or its best efforts to obtain any such governmental
approval as promptly as is practicable.
(b) Each Other Stockholder shall effect his or its participation in
any Transaction Offer under this Section 2.4 by delivery to the Offeror,
or to the Transferring Stockholder(s) for delivery to the Offeror, of one
or more instruments or certificates, properly endorsed for transfer,
representing all of such Other Stockholder's Stock. At the time of
consummation of the Transaction Offer, the Offeror shall remit directly to
each Stockholder that portion of the sale proceeds to which that
Stockholder is entitled by reason of his or its participation therein
(less any adjustments due to the conversion of any convertible securities
or the exercise of any derivative securities). In no event shall any Other
Stockholder be required to make any representations or warranties or
provide any indemnities in connection with his or its participation in a
Transaction Offer except those directly relating to the ownership of the
Stock to be Transferred by such Stockholder.
(c) In the event that the Transaction Offer is not consummated
within the period required by Section 2.4(a) above or the Offeror fails
timely to remit to each Stockholder his or its portion of the sale
proceeds, the Transaction Offer shall be deemed to lapse, and any
Transfers of Stock pursuant to such Transaction Offer shall be deemed to
be in violation of the provisions of this Agreement unless the
Transferring Stockholder(s) once again complies with the provisions of
Sections 2.2 and 2.3 hereof and this Section 2.4 with respect to such
Transaction Offer.
2.5 PROHIBITED TRANSFERS. If any Transfer is made or attempted contrary to
the provisions of this Agreement (a) such purported Transfer shall be void AB
INITIO; (b) the Company and the other Stockholders shall have, in addition to
any other legal or equitable remedies which they may have, the right to enforce
the provisions of this Agreement by actions for specific performance (to the
extent permitted by law); and (c) the Company shall have the right to refuse to
recognize any Transferee as one of its stockholders for any purpose. Without
limitation on the foregoing, each of the Stockholders further agrees that the
provisions of Section 5.7 hereof shall apply in the event of any violation or
threatened violation of this Article II.
2.6 PREEMPTIVE RIGHTS.
(a) Except with respect to the issuance of Stock pursuant to the
events described in Section 2.6(d) below, not less than 30 nor more than
120 days prior to any issuance (whether or not for consideration) or sale
by the Company of any Stock, the Company shall notify each Stockholder
thereof in writing, which notice shall specify the kind and amount of
Stock that the Company intends to issue or sell and contain a description
of the terms of the proposed issuance or sale (including the proposed
issuance or sale price, if any), and shall offer to each Stockholder the
opportunity to acquire such number of the shares of Stock as shall allow
such Stockholder, immediately following the issuance or sale of all such
Stock, to be the beneficial owner, in the aggregate, of his or
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its respective Proportionate Equity Interest (as hereinafter defined). For
the purposes hereof, the term "Proportionate Equity Interest" with respect
to a Stockholder shall mean the percentage of shares of Stock held by such
Stockholder immediately prior to the issuance or sale referred to in the
immediately preceding sentence. The per share or equivalent price, if any,
payable by each Stockholder, and all other terms and conditions of the
offer to each Stockholder, shall be identical to that offered to other
Persons in connection with such issuance or sale; provided, however, that
if the purchase price is to be paid by other Persons in kind or is for any
other reason of a type of consideration which any Stockholder cannot
readily deliver, such Stockholder shall nevertheless be entitled to pay
the purchase price in cash, such price to be an amount equal to the
monetary equivalent value to the Company of such consideration in kind or
other consideration which such Stockholder cannot readily deliver, as
determined in good faith by the Board of Directors of the Company.
(b) Each Stockholder shall have a period of 20 days following the
Company's notice to such Stockholder pursuant to Section 2.6(a) hereof
within which he or it may elect to purchase the shares of Stock offered to
him or it pursuant to Section 2.6(a) hereof. Such election (i) shall be
for all or any portion of the shares of Stock offered to such Stockholder,
(ii) may be conditioned on the Company and such Stockholder obtaining any
requisite governmental approvals (which the Company and such Stockholder
shall each covenant to use his or its best efforts to obtain as promptly
as is practicable), and (iii) shall be made by written notice to the
Company within such 20 day period. The closing of the purchase by any
Stockholder of any Stock offered pursuant to Section 2.6(a) hereof shall
occur at the time and location of the closing of the issuance or sale of
Stock which gave rise to the rights of such Stockholder under Section
2.6(a) hereof.
(c) If a Stockholder shall not elect to purchase all of the Stock
offered to him or it pursuant to Section 2.6(a) hereof, then the Company
shall, during a period of 30 days following such Stockholder's notice to
the Company pursuant to Section 2.6(b) hereof, have the right to sell the
number of shares of Stock that such Stockholder has not elected to
purchase free and clear of the restrictions of Section 2.6(a) hereof at a
price and upon other terms and conditions no more favorable to a purchaser
than were offered to such Stockholder pursuant to Section 2.6(a) hereof.
(d) The provisions of this Section 2.6 shall not apply to any Stock
issued (i) to effect any merger, consolidation or acquisition of assets;
(ii) to satisfy conversion or option rights; or (iii) pursuant to an
underwritten public offering of Stock pursuant to an effective
registration statement under the Securities Act of 1933, as amended.
(e) The Stockholders acknowledge that the Certificate of
Incorporation of the Company presently provides that the stockholders of
the Company will not have any preemptive rights. Accordingly, the
Stockholders agree that once this Agreement becomes effective as provided
in Section 4.1 below, they shall take all such actions as
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may be required to amend the Certificate of Incorporation of the Company
to delete the statement regarding preemptive rights that is set forth
therein.
ARTICLE III
CORPORATE GOVERNANCE
3.1 VOTING OF STOCK FOR ELECTION OF DIRECTORS OF THE COMPANY. With respect
to each election or removal of members of the Board of Directors of the Company
(including without limitation any replacement members), whether at an annual or
special meeting of stockholders or by written consent of stockholders, each
Stockholder agrees to vote his or its Stock and to take such other action as may
be necessary to fix the number of directors of the Company at five and to elect
as members of the Board of Directors of the Company and to keep in office as
such, the individuals selected as follows: (a) three individuals designated by
Barnett or, if Barnett is unable to make such designation, by Craine or, if
neither Barnett nor Craine is able to make such designation, by a majority in
interest of the Management Stockholders, and (b) two individuals designated by
the Fir Tree Stockholders. Each of the Stockholders further agrees to vote his
or its Stock for the removal of any such designee upon the request of the Person
or Persons with the right to designate such designee and for the election of a
substitute designee nominated by such Person or Persons upon request therefor.
The Fir Tree Stockholders shall be entitled to designate one of the members of a
two-member compensation committee of the Board of Directors of the Company to be
formed immediately after the Closing Date. If the members of such compensation
committee cannot agree with respect to a matter, such matter shall be submitted
to the entire Board of Directors of the Company which shall resolve the same
subject to the provisions of Section 3.3 below. For services performed
hereunder, the Company shall pay Fir Tree Partners, on behalf of the Fir Tree
Stockholders, an annual fee of $100,000 (the "Fixed Annual Fee"), payable
quarterly in equal installments on the first day of each calendar quarter with
the first payment being due within 10 days after the date on which this
Agreement becomes effective as provided in Section 4.1 below. Such first payment
shall be prorated based on the number of days remaining in the then current
calendar quarter. For 1998 and subsequent fiscal years, the Company shall also
pay Fir Tree Partners, on behalf of the Fir Tree Stockholders, 2% of the amount,
if any, by which the Company's annual EBITDA (as defined in Section 5.12 below)
exceeds $15,000,000 (the "EBITDA Floor"). Such payment shall be made on or
before March 31 of the succeeding year. Payments to be made to Fir Tree Partners
under this Section 3.1 shall be subordinate to all obligations of the Company
for borrowed money and shall not be paid (but shall continue to accrue) if the
payment thereof would breach a covenant or cause or result in a default under a
loan agreement to which the Company is a party or by which it is bound.
3.2 VACANCIES. Each Stockholder agrees to vote his or its Stock to the
extent required by Section 3.1 above, in such manner as shall be necessary or
appropriate so as to ensure that any vacancy occurring for any reason in the
Board of Directors of the Company shall be filled only by an individual (a) who
is nominated directly or indirectly by the Person or Persons with the right to
designate the director whose departure created the vacancy, and (b) whose
election
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causes the requirements described in Section 3.1 above relating to the
composition of the Company's Board of Directors to be satisfied.
3.3 VOTE ON CERTAIN ISSUES. The Stockholders and the Company agree that
the unanimous consent of the members of the Board of Directors of the Company
shall be necessary for the Company to undertake any of the following actions:
(a) amendment of the Certificate of Incorporation of the Company,
except as contemplated in Section 2.6(e) above;
(b) issuance of any Stock or of any instruments convertible into
Stock or of any options, warrants or other rights to purchase or otherwise
acquire Stock; provided, however, that neither the issuance of Stock
pursuant to existing conversion rights, options, warrants or other rights
to purchase or otherwise acquire Stock, nor the granting of options to any
one other than Barnett, Craine or Mourton to acquire up to 40,000 shares
of Common Stock in the aggregate under presently existing option plans as
in effect on the date hereof, shall require such unanimous consent;
(c) declaration or payment of any dividends or other distributions
on the outstanding capital stock of the Company, in cash, stock, bonds,
property or otherwise;
(d) purchase or redemption by the Company of any of its Stock,
except for the purchase of up to 25,000 shares of Stock per year pursuant
to Section 2.2;
(e) any contract or transaction between the Company and any of its
Stockholders or between the Company and an Affiliate of a Stockholder or
between the Company and one or more of its directors or officers or
between the Company and an Affiliate of a director or officer of the
Company, or any modification of any previously approved contract or
transaction referred to in this Section 3.3(e), except for salaries,
benefits and bonuses paid or provided to employees of the Company which
are limited to increases of 10% per year above the levels in effect during
1997 (for salary and benefits) and 1996 bonuses paid in 1997;
(f) any plan or approval to merge or consolidate the Company with or
into another entity or to sell, lease, exchange or otherwise dispose of
all or substantially all of the property or assets of the Company, or to
dissolve, liquidate or wind up the Company, other than in accordance with
Section 2.4 above;
(g) except for transactions referred to under Section 3.3(d) above
or entered into in the ordinary course of business, any acquisition of an
ownership interest in or assets from any Person for consideration in
excess of $2,000,000 for any single transaction or series of related
transactions;
(h) any sale, spin-off or other disposition of any subsidiary of the
Company having revenues in its last fiscal year in excess of $1,500,000;
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(i) any sale or other disposition of assets of the Company or any of
its subsidiaries, other than in the ordinary course of business, having a
book value or for consideration in excess of $2,000,000 for any single
transaction or in excess of $3,000,000 in the aggregate during any fiscal
year of the Company;
(j) capital expenditures (excluding earn-out payments) in any year
(beginning in 1998) in excess of $4,500,000; and
(k) any financing or refinancing involving more than $10,000,000,
except in the case of a financing or refinancing for the purpose of curing
defaults or events of default.
3.4 TERMINATION. This Article III and the obligations of the Parties under
this Article III shall terminate and be of no further force or effect at such
time as the Management Stockholders or the Fir Tree Stockholders hold less than
one-half of the percentage of the shares of Stock held by such members at the
time this Agreement becomes effective as provided in Section 4.1 below.
ARTICLE IV
ADDITIONAL PROVISIONS
4.1 EFFECTIVENESS OF AGREEMENT. Except as set forth in Section 4.7 below,
this Agreement shall be effective only (a) from and after the consummation of
the transactions contemplated by the Stock Purchase Agreement; and (b) in the
event, at the time of such consummation, (i) the Fir Tree Stockholders, in the
aggregate, hold a number of shares of Stock which is not less than 90% of the
sum of the number of shares of Stock held by them on the date first set forth
above plus the number of shares of Preferred Stock to be purchased under the
Stock Purchase Agreement (the "Minimum Fir Tree Amount") unless such requirement
is waived by a majority in interest of the Management Stockholders and (ii)
Barnett and Mourton hold the same number of shares of Stock as they held on the
date first set forth above excluding shares held for their benefit in individual
retirement accounts and the Company's Savings and Retirement Plan unless such
requirement is waived by a majority in interest of the Fir Tree Stockholders. In
the event of the termination, expiration or lapse of the Stock Purchase
Agreement for any reason prior to such consummation or in the event (x) the Fir
Tree Stockholders, in the aggregate, hold less than the Minimum Fir Tree Amount
at the time of such consummation unless such requirement is waived by a majority
in interest of the Management Stockholders or (y) Barnett and Mourton hold less
than the number of shares referred to in clause (b)(ii) last above at the time
of such consummation unless such requirement is waived by a majority in interest
of the Fir Tree Stockholders, this Agreement shall be void and of no force or
effect.
4.2 STANDSTILL. Without the prior written consent of the Company, none of
the Fir Tree Stockholders shall, and each of them agrees to cause each of its
Affiliates not to, purchase or otherwise acquire, offer to acquire or agree to
acquire, by any means, directly or indirectly,
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<PAGE>
any Stock, or any direct or indirect rights or options to acquire Stock or any
securities convertible into Stock, except pursuant to Sections 2.1, 2.2, 2.3 and
2.4 hereof and except that after this Agreement becomes effective, as provided
in Section 4.1 above, the Fir Tree Stockholders may purchase from stockholders
of the Company that are not Parties a total of up to 50,000 shares of Common
Stock. Each of the Stockholders agrees that the provisions of Section 5.7 hereof
shall apply in the event of any violation or threatened violation of this
Section 4.2.
4.3 FIR TREE STOCK. The Fir Tree Stockholders hereby jointly and severally
represent and warrant to the Management Stockholders that all Affiliates of each
of the Fir Tree Stockholders which, as of the date hereof, own any Stock or any
direct or indirect rights or options to acquire Stock or any securities
convertible into Stock are parties to this Agreement.
4.4 APPLICATION OF AGREEMENT. This Agreement (including without limitation
the provisions of Article II hereof) shall apply to all Stock now owned or
hereafter acquired by any Stockholder. This Agreement shall be effective as to a
Stockholder only for so long as such Stockholder continues to hold Stock or any
options, warrants or other rights to acquire Stock.
4.5 TENDER OFFER. A Stockholder's execution of this Agreement shall not
restrict his or its rights to participate in the Tender Offer (as defined in the
Stock Purchase Agreement).
4.6 SALE OF THE COMPANY.
(a) At any time on or after the fifth anniversary of the date that
this Agreement becomes effective as provided in Section 4.1, a majority in
interest of the Fir Tree Stockholders shall have the right, exercisable by
written notice to the Company, to require that the Company proceed with an
orderly sale of the Company in accordance with the procedures set forth in
this Section 4.6. In addition, in the event that Howard G. Barnett, Jr.
shall cease to be the Company's chief executive officer for any reason,
either a majority in interest of the Fir Tree Stockholders or a majority
in interest of the Management Stockholders shall have the right,
exercisable by written notice to the Company given at any time on or after
the first anniversary of such cessation, to require that the Company
proceed with such sale in accordance with this Section 4.6.
(b) Whenever the Company is required to initiate a sale process
pursuant to Section 4.6(a) above, the Company shall promptly engage an
investment banking firm of
national standing that is mutually acceptable to the holders of a majority
in interest of both the Fir Tree Stockholders and the Management
Stockholders to conduct an orderly sale of the Company as a going concern.
The Company shall exercise best efforts to assist such investment banking
firm in conducting such sale, including the preparation of an offering
memorandum and/or other descriptive materials and financial information
regarding the Company to be provided to interested parties and making
management of the Company available to meet with and make presentations to
interested parties. The Company shall not place any limitations on the
scope of the sales efforts of such investment banking firm. All
Stockholders shall be obligated to participate in a sale of the Company
effected
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<PAGE>
pursuant to this Section 4.6, which has been approved by the Company's
Board of Directors, subject to the provisions of Section 2.4 above.
Compliance with the provisions of Section 2.2 above will not be required
in connection with such sale. Any such sale must take place within the
later of (i) 30 days after the date on which notice of such sale under
Section 2.4 above is given to the Stockholders by the Company or (ii) five
days after the date on which all governmental approvals, if any, required
in connection with such sale have been obtained and all other conditions
to closing have been satisfied.
(c) Notwithstanding the provisions of Sections 3.1 and 3.2 above, in
the event that a sale of the Company is not concluded within one year of
the date of the notice initiating the sale process, the Stockholders agree
to vote their shares of Stock so that a simple majority (but no more) of
the members of the Company's Board of Directors are designees of the Fir
Tree Stockholders.
4.7 SCHEDULE 13D. Anything in this Agreement to the contrary
notwithstanding, the provisions of this Section 4.7 shall be effective
immediately. If any or all of the Management Stockholders or the Fir Tree
Stockholders believes, based on the advice of competent counsel, that a Schedule
13D under the Securities Exchange Act of 1934, as amended, with respect to
ownership of Stock must be filed or amended at any time while this Agreement
remains in effect, such Management Stockholders or Fir Tree Stockholders (as the
case may be) shall provide a copy of such Schedule 13D or amendment thereto to
the Fir Tree Stockholders (in the case of a filing to be made by any or all of
the Management Stockholders) or the Company (in the case of a filing to be made
by any or all of the Fir Tree Stockholders) no later than 24 hours prior to its
filing with the Securities and Exchange Commission.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 THIRD PARTIES. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the Parties and their respective
successors and permitted assigns to the extent contemplated herein.
5.2 LEGENDS ON CERTIFICATES. Each Stockholder shall cause all certificates
representing shares of Stock owned by him or it to be endorsed with a statement
to substantially the following effect:
THE SALE, TRANSFER, ASSIGNMENT AND VOTING OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A STOCKHOLDERS AGREEMENT DATED AS OF JULY 1, 1997. A
COMPLETE AND CORRECT COPY OF SUCH AGREEMENT IS AVAILABLE FOR
INSPECTION AT THE PRINCIPAL OFFICE OF T/SF COMMUNICATIONS
CORPORATION.
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<PAGE>
5.3 AMENDMENT AND WAIVER. Any Party may waive in writing any provision of
this Agreement intended for his or its benefit. No failure or delay on the part
of any Party in exercising any right, power or remedy hereunder shall operate as
a waiver thereof. The remedies provided for herein are cumulative and are not
exclusive of any remedies that may be available to any Party at law or in equity
or otherwise. This Agreement may be amended only with the prior written consent
of the Company and each of the Stockholders; provided, however, at the election
of a majority in interest of the Management Stockholders, one or more additional
stockholders of the Company who are not Fir Tree Stockholders may be added to
this Agreement as Management Stockholders if such stockholder(s) agree in
writing to be bound by the terms of this Agreement.
5.4 NOTICES. All notices and other communications required or permitted to
be given hereunder shall be in writing and shall be deemed to have been duly
given, delivered and received (a) if delivered personally or (b) if sent by
facsimile, registered or certified mail (return receipt requested) postage
prepaid, or by courier guaranteeing next day delivery, in each case to the Party
to whom it is directed at the addresses set forth below (or at such other
address for any Party as shall be specified by notice given in accordance with
the provisions hereof, provided that notices of a change of address shall be
effective only upon receipt thereof). Notices delivered personally shall be
effective on the day so delivered; notices sent by registered or certified mail
shall be effective on the third day after mailing; notices sent by facsimile
shall be effective when receipt is acknowledged; and notices sent by courier
guaranteeing next day delivery shall be effective on the earlier of the second
business day after timely delivery to the courier or the day of actual delivery
by the courier:
(a) If to the Company:
T/SF Communications Corporation
2407 East Skelly Drive
Tulsa, Oklahoma 74105
Facsimile No.: (918) 743-1291
(b) If to a Fir Tree Stockholder, the address set forth below such
Stockholder's name on Exhibit A hereto.
(c) If to a Management Stockholder, the address set forth below such
Stockholder's name on Exhibit B hereto.
(d) If to any Person subsequently becoming a Stockholder under this
Agreement, such address as shall be specified by notice given in
accordance with the provisions hereof.
5.5 HEADINGS. The Article and Section headings used or contained in this
Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
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<PAGE>
5.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which together
shall be deemed to constitute one and the same agreement.
5.7 REMEDIES. It is specifically understood and agreed that any breach of
the provisions of this Agreement by any Person subject hereto will result in
irreparable injury to the other Persons who are parties hereto, that the remedy
at law alone will be an inadequate remedy for such breach, and that, in addition
to any other legal or equitable remedies which they may have, such other Persons
may enforce their respective rights by actions for specific performance, and the
Company may refuse to recognize any unauthorized Transferee or any Stockholder
who has failed to Transfer any of his or its Stock as required by this Agreement
as one of its stockholders for any purpose, including without limitation for
purposes of dividend and voting rights, until the relevant Person or Persons
have complied with all applicable provisions of this Agreement. The Parties
hereby waive any bonding requirement with respect to any action to assert any
such remedy.
5.8 SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law; provided,
however, that, if Section 3.1, 3.2 or 4.2 of this Agreement is determined to be
invalid, illegal or unenforceable, this Agreement as a whole shall terminate and
be of no further force or effect.
5.9 ENTIRE AGREEMENT. This Agreement is intended by the Parties as a final
expression of their agreement, and is intended to be a complete and exclusive
statement of the agreement and understanding of the Parties, in respect of the
subject matter hereof. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
5.10 LAW GOVERNING. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Delaware (without
giving effect to principles of conflicts of law).
5.11 TERM. This Agreement shall terminate upon the earlier of (a) the
closing of an underwritten public offering of Stock pursuant to an effective
registration statement under the Securities Act of 1933, as amended, or (b) the
date which is 10 years after the date hereof.
5.12 ASSIGNMENT. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns; provided, that any assignment of rights or obligations hereunder
shall not conflict with any other provision of this Agreement. No Party may
assign any of its rights, duties or obligations hereunder without the prior
written consent of the other Parties. In the event that the stock of any
subsidiary of the
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Company is distributed to the Company's stockholders pursuant to a spin-off or
split-off transaction, (a) the provisions of this Agreement shall be binding
upon such corporation and its stockholders and (b) the Fixed Annual Fee, the
EBITDA Floor and the dollar amounts set forth in Section 3.3 above applicable to
such corporation and the Company shall be proportionally adjusted by multiplying
such amounts by a fraction, the numerator of which is the earnings before
interest, taxes, depreciation and amortization ("EBITDA") for the preceding
12-month period for the spin-off corporation or the Company exclusive of the
spin-off corporation (as applicable) and the denominator of which is the
Company's EBITDA (inclusive of such spin-off corporation's EBITDA) for such
period.
5.13 CHOICE OF FORUM; CONSENT TO SERVICE OF PROCESS. Any suit, action or
proceeding arising out of or relating to this Agreement or any agreement or
obligation delivered in connection with this Agreement or any judgment entered
by any court in respect thereof may be brought in the courts of the State of
Oklahoma, County of Tulsa, in the United States District Court for the Northern
District of Oklahoma, in the courts of the State of New York, County of New
York, or in the United States District Court for the Southern District of New
York, and each Party hereby submits to the jurisdiction of such courts for the
purpose of any such suit, action or proceeding relating to this Agreement or any
related agreement or obligation.
Each Party hereby irrevocably waives any objection that he or it may now
or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any agreement or obligation
delivered in connection with this Agreement, brought in the courts of the State
of Oklahoma, County of Tulsa, in the United States District Court for the
Northern District of Oklahoma, in the courts of the State of New York, County of
New York, or in the United States District Court for the Southern District of
New York, and hereby further irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum.
5.14 JOINT DRAFTING. The Parties acknowledge that they and their
respective counsel have negotiated and drafted this Agreement jointly and agree
that the rule of construction that ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation or construction of
this Agreement.
5.15 BINDING EFFECT. This Agreement shall be binding upon (a) the Fir Tree
Stockholders, Barnett, Craine, Mourton, Stuart P. Honeybone, and Barnett and
Florence Lloyd Jones Barnett, Trustees UA June 22, 1996, Florence Lloyd Jones
Barnett Revocable Inter Vivos Trust, once it has been executed by all such
Parties, and (b) each of the other Parties, once such Party and the Parties
listed in clause (a) have executed this Agreement and so long as such execution
takes place within 14 days after the date first set forth above.
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<PAGE>
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first written above, to
be effective as provided in Section 4.1 above.
T/SF COMMUNICATIONS
CORPORATION
By: /S/ HOWARD G. BARNETT, JR.
Howard G. Barnett, Jr.
Chairman, President and
Chief Executive Officer
[Signatures continue on the next page.]
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<TABLE>
<CAPTION>
<S> <C>
FIR TREE STOCKHOLDERS: MANAGEMENT STOCKHOLDERS:
FIR TREE VALUE FUND, L.P.
/S/ HOWARD G. BARNETT, JR.
Howard G. Barnett, Jr.
By: /S/ JEFFREY TANNENBAUM
Jeffrey Tannenbaum
General Partner /S/ ROBERT E. CRAINE, JR.
Robert E. Craine, Jr.
FIR TREE INSTITUTIONAL VALUE
FUND, L.P. /S/ J. GARY MOURTON
By: Fir Tree, LLC, General Partner J. Gary Mourton
By: /S/ JEFFREY TANNENBAUM /S/ STUART P. HONEYBONE
Jeffrey Tannenbaum Stuart P. Honeybone
Member
/S/ BILLIE T. BARNETT
FIR TREE VALUE PARTNERS LDC Billie T. Barnett
By: /S/ JEFFREY TANNENBAUM /S/ HOWARD G. BARNETT, SR.
Jeffrey Tannenbaum Howard G. Barnett, Sr., Trustee UA
Investment Advisor June 22, 1976, FBO Howard G. Barnett
Revocable Inter Vivos Trust
TENSING, L.L.C.
/S/ HOWARD G. BARNETT, JR.
Howard G. Barnett, Jr., Trustee UA
By: /S/ JEFFREY TANNENBAUM June 22, 1976, FBO Howard G. Barnett
Jeffrey Tannenbaum Revocable Inter Vivos Trust
Manager
/S/ FLORENCE LLOYD JONES BARNETT
Florence Lloyd Jones Barnett, Trustee UA
June 22, 1996, Florence Lloyd Jones Barnett
Revocable Inter Vivos Trust
/S/ HOWARD G. BARNETT, JR.
Howard G. Barnett, Jr., Trustee UA
June 22, 1996, Florence Lloyd Jones Barnett
Revocable Inter Vivos Trust
</TABLE>
<PAGE>
/S/ FLORENCE LLOYD JONES BARNETT
Florence Lloyd Jones Barnett, Trustee UA
March 18, 1996, Florence Lloyd Jones
Barnett Charitable Remainder Unitrust
/S/ JENKIN LLOYD JONES, SR.
Jenkin Lloyd Jones, Sr., Trustee UA
September 25, 1972, Jenkin Lloyd Jones
Revocable Inter Vivos Trust
/S/ JENKIN LLOYD JONES, JR.
Jenkin Lloyd Jones, Jr., Trustee UA July 3,
1985, Jenkin Lloyd Jones, Jr. Revocable
Inter Vivos Trust
/S/ CAROL B. JONES
Carol B. Jones, Trustee UA July 3, 1985,
Jenkin Lloyd Jones, Jr. Revocable Inter
Vivos Trust
/S/ DAVID LLOYD JONES
David Lloyd Jones
/S/ ROBERT J. SWAB
Robert J. Swab
/S/ MARTIN A. VAUGHAN
Martin A. Vaughan
MIDWEST RESOURCES, INC.
By: /S/ MARTIN A. VAUGHAN
Martin A. Vaughan
President
MAVERICK EXPLORATION, INC.
By: /S/ MARTIN A. VAUGHAN
Martin A. Vaughan
President
<PAGE>
EXHIBIT A
FIR TREE STOCKHOLDERS
Fir Tree Value Fund, L.P.
29th Floor
1211 Avenue of the Americas
New York, New York 10036
Fir Tree Institutional Value Fund, L.P.
29th Floor
1211 Avenue of the Americas
New York, New York 10036
Fir Tree Value Partners LDC
29th Floor
1211 Avenue of the Americas
New York, New York 10036
Tensing, L.L.C.
29th Floor
1211 Avenue of the Americas
New York, New York 10036
<PAGE>
EXHIBIT B
MANAGEMENT STOCKHOLDERS
Howard G. Barnett, Jr., individually; as Jenkin Lloyd Jones, Jr. and
Trustee UA June 22, 1976, FBO Howard G. Carol B. Jones, as Trustees
Barnett Revocable Inter Vivos Trust; and UA July 3, 1985, Jenkin Lloyd
as Trustee UA June 22, 1996 Florence Jones, Jr. Revocable Inter
Lloyd Jones Barnett Revocable Inter Vivos Trust 6447 South
Vivos Trust 6742 South Evanston Tulsa, Louisville Avenue Tulsa,
Oklahoma 74136 Oklahoma 74136
David Lloyd Jones
Robert E. Craine, Jr. 11312 South Erie Avenue
5118 East 107th Place Tulsa, Oklahoma 74137
Tulsa, Oklahoma 74137
Robert J. Swab
J. Gary Mourton 2407 East Skelly Drive
4220 Colonial Drive Tulsa, Oklahoma 74105
Sapulpa, Oklahoma 74066
Martin A. Vaughan
Stuart P. Honeybone 2222 East 30th Place
8313 South 5th Avenue Tulsa, Oklahoma 74114
Broken Arrow, Oklahoma 74011
Midwest Resources, Inc.
Billie T. Barnett 2222 East 30th Place
6742 South Evanston Tulsa, Oklahoma 74114
Tulsa, Oklahoma 74136
Maverick Exploration, Inc.
Howard G. Barnett, Sr., as Trustee UA 2222 East 30th Place
June 22, 1976, FBO Howard G. Barnett Tulsa, Oklahoma 74114
Revocable Inter Vivos Trust
2619 East 37th Street
Tulsa, Oklahoma 74105
Florence Lloyd Jones Barnett, as Trustee
UA June 22, 1996, Florence Lloyd Jones
Barnett Revocable Inter Vivos Trust, and
as Trustee UA March 18, 1996, Florence
Lloyd Jones Barnett Charitable Remainder
Unitrust 2619 East 37th Street Tulsa,
Oklahoma 74105
Jenkin Lloyd Jones, Sr., as Trustee UA
September 25, 1972, Jenkin Lloyd Jones
Revocable Inter Vivos Trust 6683 South
Jamestown Place Tulsa, Oklahoma 74136
B-1
